Sirje Cochrane v Stirling community Hospital

[1996] IRCA 56

DECISION NO:  56/96

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - alleged unlawful termination - whether termination for prohibited reason of physical disability - whether valid reason - whether employee on unpaid leave is entitled to paid notice

INDUSTRIAL RELATIONS ACT 1988 Ss 170DE, 170 DF, 170EA, 170EDE, 170EE
INDUSTRIAL RELATIONS AND OTHER LEGISLATION AMENDMENT ACT      1995

Byrne v ALHMWU & Coca Cola Bottlers, IRCA No. 162 of 1995, Wheeler JR, unreported (21 April 1995)

HSUA & Smith v Royal Melbourne Hospital, IRCA No. 52 of 1995, Chancellor JR, unreported (28 February 1995)

Engberink v Worsley Alumina Pty Ltd, WI1197 of 1995, Boon JR, unreported (26 September 1995)

Dempster v Lamprey Pty Ltd T/as Casuarina Tavern, IRCA No. 194 of 1995, Blokland JR, unreported, 10 May 1995.

Winter v Australian National Hotels Ltd, IRCA No. 574 of 1995, Lee J, unreported (25 October 1995)

Mullaney v Active Concrete, IRCA No. 262 of 1995, Wilcox CJ, unreported (3 May 1995).

SIRJE COCHRANE  -v- STIRLING COMMUNITY HOSPITAL   -  WI95/1961

BEFORE:        R. D. FARRELL JR
PLACE:           PERTH
DATE:             21 FEBRUARY 1996

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 95/1961

BETWEEN:  SIRJE COCHRANE
  -          Applicant

AND:  STIRLING COMMUNITY   HOSPITAL
  -          Respondent

MINUTE OF ORDERS

BEFORE:                 R. D. FARRELL JR

PLACE:  PERTH

DATE:  21 FEBRUARY 1996

THE COURT DECLARES THAT:

1.The termination of the employment of the applicant contravened Sections 170DE and 170DF of the Industrial Relations Act 1988.

THE COURT ORDERS THAT:

2.The respondent pay to the applicant damages pursuant to Section 170EE(5) in the sum of $1,925.00.

3.The respondent pay to the applicant compensation pursuant to Section 170EE(2) in the sum of $10,000.00.

NOTE:           Settlement and entry of Orders is dealt with by Order 36 of the   Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 95/1961

BETWEEN:  SIRJE COCHRANE
  -          Applicant

AND:  STIRLING COMMUNITY   HOSPITAL
  -          Respondent

BEFORE:                 R. D. FARRELL JR

PLACE:  PERTH

DATE:  21 FEBRUARY 1996

REASONS FOR JUDGMENT

This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful termination of the employment of the applicant, Mrs Sirje Cochrane (“Mrs Cochrane”), by the respondent, Stirling Community Hospital (“the Hospital”). Mrs Cochrane’s claim for reinstatement was withdrawn in the course of the proceedings.

Mrs Cochrane’s Dismissal

Mrs Cochrane was dismissed by the Hospital on 6 August 1994 after 12 years of service working in its kitchen as a kitchen hand. She was 48 years of age at the time of her dismissal. The reason she was given for her dismissal in the letter of termination (Exhibit C4) was the Hospital’s conclusion that Mrs Cochrane’s physical limitations were such that she was “not able to meet the requirements (ie. lifting and bending) of the duties of a kitchen hand, ward assistant or cleaner” and its further conclusion that, because those roles had been combined by the Hospital through multi-skilling to improve productivity, her return to work in any of those positions “may create the real prospect of self-injury”. As is usual in such letters, the Hospital advised it had “no option” but to terminate her employment.

There had been no problems between Mrs Cochrane and the Hospital during the first eleven years of her employment. She had risen to a position of some seniority and responsibility within the kitchen, and had demonstrated herself to be a good, flexible and accommodating worker. Her duties in fact expanded to include cooking duties similar to those of the chefs, though she had no chef’s qualifications and was not paid as a chef. She worked part-time, and from 1988 her hours had settled at 22.5 hours per week, which were worked on Saturday, Sunday and Monday of each week, so that she earned penalty and shift payments. She also made herself available to relieve other kitchen employees who were absent on leave or through illness. Her average earnings in her last year of employment, apparently including relief work, were $20,000.

Then, on 23 October 1993, Mrs Cochrane injured herself while working. Initially the injury manifested itself as pain in her right elbow, right lower back, right lower leg and right groin. Over time the symptoms abated somewhat, so that she had less severe symptoms affecting only her lower back and right elbow.

Mrs Cochrane spent time off work as a result of her injury. Liability was accepted for the purposes of her claim for workers’ compensation for her initial incapacity to work and for her medical expenses, though of course the compensation payments did not compensate her for the loss of penalty and shift payments.

It is clear Mrs Cochrane wanted to return to work.

She returned to work for 3 hours on 4 December 1993, but had to be sent home. During 1994 she took part in two rehabilitation programmes, the first between 17 January 1994 and 18 April 1994, and the second between 24 August 1994 and 6 September 1994.

In neither of these rehabilitation programmes was she given the opportunity to do the work she had been doing before she was injured, as a kitchen hand, even though Mrs Cochrane consistently indicated her preference to work in the kitchen.

On 12 January, 1994, Mrs Barnes, the Executive Administrator from the Hospital, apparently informed Mrs Cochrane that her previous position as a cook was no longer available.

In November, 1994, Mr Suiter, the Hospital’s then Director of Services wrote to Mrs Cochrane’s doctor, Dr Singh, (Exhibit C4) saying that “unfortunately” the Hospital did not “at this time” have any kitchen hand positions available, and therefore enclosing duty statements for Ward Assistants and Cleaners for the doctor to comment on their suitability. These were not the job Mrs Cochrane was doing prior to her injury.

Nevertheless, she had some success with the rehabilitation programmes.

During her first rehabilitation program, she was given work as a ward assistant at Stirling Hospital, which involved new duties for her. She coped with most of the duties of a ward assistant, except for “carbonising” the beds, which required her to crouch down and move along beside the bed. She was required to carbonise about 14 beds a day. While she could handle about 6 beds a day, or perhaps more if she could distribute them across her shift, she found she was often required to do many beds in succession, without a break. There were also some difficulties resulting from her shifts being scheduled too close together, with a morning shift being scheduled immediately following a late shift. The first Rehabilitation Program was interrupted on 1 March 1994 when she hurt her back while vacuuming at home. She resumed the program in mid-March, 1994.

On 28 March 1994, Mr Zulberti, the Hospital’s then Director of Services, wrote to Mrs Cochrane (Exhibit C4) in the following terms:

“Dear Ms Cochrane

RETURN TO FULL DUTIES - WARD ASSISTANT/DOMESTIC

After the completion of your rehabilitation period (18th April 1994) it is expected that you will return (sic) to full duties as a Ward Assistant/Domestic. If you cannot achieve this objective, the Hospital reserves the right to review your contract of service and your employment may be terminated.

Your early response on this matter would be appreciated.”

The terms of this letter reflect the commencement of the Hospital’s redefinition of Mrs Cochrane’s duties. Before her injury, Mrs Cochrane had been a kitchen hand, otherwise known as a kitchen domestic. She had not been a ward assistant. She had not been required to carbonise beds. Her old job, “(Kitchen) Domestic”, had by 28 March 1994 been redefined as “Ward Assistant/Domestic” and she was expected to “return” to her full duties, now redefined to include the carbonising of beds, by 18 April, 1995.

Mrs Cochrane resumed the rehabilitation program in mid-March. By 15 April, she had built up to the point where she was working 20.5 hours per week, almost back to her pre-injury hours of 22.5 hours per week. Had she progressed in accordance with the programme’s scheduled increase of hours, she would have achieved her pre-injury hours within a week (Exhibit C3). However, her rehabilitation programme ceased on 15 April 1994. Mr Zulberti’s cut-off date had arrived. It seems the programme was ended because Mrs Cochrane was not certified fully fit for all her redefined duties in time.

The Hospital took the opportunity to reduce Mrs Cochrane’s workers compensation payments to 2 hours per week, based on the almost complete success of the rehabilitation programme.

During her second rehabilitation programme, Mrs Cochrane was required to perform kitchen, cleaning and Ward Assistant duties at Cambridge Private Hospital, a hospital run by a company associated with the Respondent. This involved working in unfamiliar surroundings and performing different combinations of duties than those available at the other Hospital which, in Mrs Cochrane’s view, amounted to a heavier workload than at the Stirling Community Hospital. The duties included use of a tea trolley not used at the Stirling Hospital which required repetitive bending to access low trolley shelves to repeatedly fill teapots and cups. It also involved use of an unfamiliar and differently positioned dishwasher in the kitchen, the loading of which required bending and twisting not required in the kitchens of the Stirling Hospital. The program also included heavy cleaning duties, which were also never performed by Mrs Cochrane prior to her injury.

In early September, part way through the second rehabilitation programme, she started to have back problems again, and was certified unfit to work.

Mrs Cochrane was recognised to have a disability following her injury. Dr Peter Connaughton, an occupational physician engaged by the Hospital, (“Dr Connaughton”) noted in a report on Mrs Cochrane dated 21 February 1994 (Exhibit C3) that “the presence of degenerative change in the lumbar spine will predispose her to a degree of ongoing lumbar symptoms”.

Dr Singh explained in his evidence that the degenerative condition was a predisposing condition, which if not stressed might never have expressed itself. The work-related events of October 1993 had made it “come to the surface”.

On 11 and 12 October 1994, Mrs Cochrane underwent a Functional Capacity Evaluation (“FCE”) conducted by Western Rehabilitation Pty Ltd.

The FCE Summary Report indicated that Mrs Cochrane:

“has the physical capacity to undertake most duties as a Kitchen Hand provided that she restricts lifting to a maximum of 9 kilograms from the floor, 6 kilograms overhead and 14 kilograms horizontally; avoids repetitive bending and has assistance to transport trolleys weighing more than 24 kilograms.
Most duties of a Ward Assistant would be appropriate with the exception of repetitive bending to access lower trolley shelves that is required to repeatedly fill teapots and cups.
A job as a Cleaner would not be appropriate.”

Mrs Cochrane gave evidence that her capacities have improved somewhat since the FCE was performed, and pointed out that the FCE was conducted soon after she had spent time in the inappropriate rehabilitation programme in Cambridge Hospital, which had exacerbated her condition.

Mrs Cochrane conceded that she still suffered back pain and regularly took digesics, ie pain killers and anti-inflammatory tablets, for it.

On 11 November, 1994, the Workers Compensation Conciliation and Review Directorate, after considering the medical and other evidence available at that time ordered that workers compensation payments cease on the grounds that Mrs Cochrane had clearly demonstrated the capacity to work.

Understandably, in the light of this ruling, Mrs Cochrane immediately approached the Hospital to return to work. The Hospital refused to provide her with work. It continued to do so despite her repeated, almost ritualistic requests for work over the ensuing seven months. The frequency of these requests is suggested by records kept by Mrs Cochrane of these contacts (Exhibit C5 and see also Exhibit S6).

On 21 December 1995, Mr Suiter, by then Director of Services, wrote (Exhibit C4) to Mrs Cochrane. As I have noted, he had earlier written to Dr Singh advising that there were no kitchen hand positions available, and enclosing duty statements for Ward Assistants and Cleaners positions for the doctor to comment on their suitability. When Dr Singh responded, Mr Suiter wrote to Mrs Cochrane in the following terms:

“Dear Mrs Cochrane,

RE: WORKERS COMPENSATION CLAIM - FITNESS TO RETURN TO WORK

As you know I am now in receipt of a letter from your Medical practitioner Dr. M. Singh, who indicates that you “would not be fit to work as a cleaner”, “there would be some restrictions on her work” (as a Ward Assistant), “her main problem would be making the beds. She is not capable of repetitive bending or prolonged bending, she should restrict her lifting to 9kg from the floor and has assistance to transport trolleys weighing more than 24kg”.

In the light of these statements it is clear that there are no suitable positions in the kitchen or within the hospital into which you could safely be placed at the present time.

I would be pleased to review this position should your medical position improve....”

I note at this point that Dr Singh said nothing in his response to Mr Suiter concerning Mrs Cochrane’s fitness for kitchen duties. He did not do so as he was not provided with the relevant duty statements.

By December 1994, therefore, Mrs Cochrane’s job had been further redefined to include the cleaner’s job - another job which Mrs Cochrane had never performed before her injury and a job for which it was clear she would never be certified fit. Still more curiously, the duties of that aspect of the redefined job which she had been performing before her injury, the kitchen hand’s job, were withheld from Mrs Cochrane’s doctor.

Since Mrs Cochrane’s injury, the Hospital had hired qualified chefs for every shift, so that Mrs Cochrane would no longer have been called upon to do as much cooking as part of her duties, had she been rostered. It was clear from the evidence that the cooking duties were heavier than the kitchen hand duties. Mrs Cochrane gave evidence that she perused the rosters during her visits to the hospital to request work, and it appeared that new employees had been hired in the kitchen since her injury to work as kitchen hands. I accept that new employees were taken on in the kitchen.

At a hearing before a Review Officer of the Workers Compensation Conciliation and Review Directorate on 31 May, 1995, (Exhibit C2) Mr Cam (who appeared for Mrs Cochrane) asserted that she was fit to do kitchen hand duties and ward assistant duties, with restrictions.

The review officer then put it to Mr Cam and to Mrs Cropley (who appeared for the Hospital) that there was “an unequivocal certification by both doctors” that Mrs Cochrane was “fit for kitchen hand duties”. At his invitation, Ms Cropley, representing the Hospital, expressly agreed with this assessment.

As a result of the position adopted by the hospital in the hearing, compensation payments to Mrs Cochrane ceased. Given the Hospital’s persistent refusal to roster her hours to work, Mrs Cochrane understandably explored the option of obtaining employment elsewhere. She requested a reference for that purpose, and was ultimately given a “Statement of Service” dated 1 June 1995 and signed by Mr Suiter. It is a strikingly uncharitable document, given her years of good service to the hospital. Her service is described thus:

“Sirje Cochrane was employed at Stirling Community Hospital as a Kitchen Domestic from 16 June, 1982 until 1988. In 1988 her duties were changed to encompass the duties of Main Cook for two days per week and Relief Cook on occasion to cover for annual leave of hospital chefs”.

The remaining two thirds of the statement recounts the history of her work-related injury and of her workers compensation claim.

Mrs Cochrane applied for twenty jobs at this time, and was invited to ten interviews, without success.

Mrs Cochrane found the statement of no assistance in obtaining alternative employment, which I am sure came as no surprise to Mr Suiter.

On 20 June 1995, the Hospital wrote to Mrs Cochrane (Exhibit C4) asking for information to assist the hospital in making a decision on her employment status with the hospital.

Mrs Cochrane responded on 23 June 1995 (Exhibit S2) enclosing a medical certificate from Dr Singh .

The Hospital contacted Dr Singh, the applicant’s general practitioner, on 3 July 1995. Mr Suiter says Dr Singh agreed that “the job” was not suitable to Mrs Cochrane’s physical condition, given the FCE’s findings regarding repetitive bending.

The reason Mr Suiter gives for the termination of the first program was Mrs Cochrane’s inability to gain certification to return to full duties.

Mr Suiter contended that the Hospital:

·   does not have scope for on-going light duties positions; and

·   cannot restructure jobs because to do so:

à   would be against its policy to progress multi-skilling; and

à   would place a higher load of heavy duties on others, risking conflict and injury; and

à   would create a precedent for similar situations in future.

The Hospital’s letter of termination was dated 21 July 1995.

Mrs Cochrane gave her evidence in a straight forward, matter of fact way. She displayed admirable stoicism, given her predicament. I have some confidence that she was, particularly in relation to her evidence concerning her symptoms and her capacities, “telling it as it is”. She freely admitted limits to her capacities when there would have been a temptation to gloss over them.

By contrast, the evidence of Mr Suitor was very carefully given, and I had the impression that each answer was given only after considering its implications for the Hospital’s case.

Alleged Breach of Section 170DF.

Section 170DF relevantly provides that:

“(1)An employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

...(f)physical... disability...

(2)Subsection (1) does not prevent a matter referred to in paragraph (1) (f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position.”

Mr Droppert, who appeared for Mrs Cochrane, contends that Mrs Cochrane was dismissed because of her physical disability, which cannot seriously be disputed. Mr Droppert also disputes the contention of Mr O’Connor, who appeared for the Hospital, that Mrs Cochrane’s physical disability prevented her from satisfying the inherent requirements of her particular position. Section 170EDA(2) confers the onus on the employer to prove this contention.

Mrs Cochrane’s “Particular Position”.

The first question for determination is what was the nature of the “particular position” from which Mrs Cochrane was dismissed.

The Hospital contends that the particular position is a multiskilled position including the duties of a kitchen hand, ward assistant and cleaner.

Mr Suiter said that in early 1994, the Hospital started moving towards multi-skilling. I have already noted the progressive redefinition by the Hospital over the course of 1994 of the position to which Mrs Cochrane was to “return”.

Mr Suitor said he would expect that new staff would need to be multiskilled, and added that some of the existing staff were multiskilled, but not all. Ms Coulsen said that she tried to multiskill any new member of staff when and where able to.

Mrs Cochrane was not a new member of staff. She was an existing member of staff who had provided eleven years of good service. She wanted to go back to working in the kitchen. She felt she was able to do the kitchen hand’s job. Mrs Cochrane was being required to prove herself as capable of being multiskilled only because she was returning to work from injury. She was being treated as if she were a new member of staff.

By requiring Mrs Cochrane to prove herself fit to do not just the duties of the job she was doing when she was injured, but also the duties of two other jobs as well, the Hospital was holding Mrs Cochrane to a higher standard than that expected of her fellow existing employees who had not had the misfortune of injuring themselves on the job. Other existing employees who were not multiskilled were not being dismissed. Rather than making allowances for the fact that Mrs Cochrane injured herself while in their employ (in circumstances which suggest the injury may well have been the result of understaffing), it seems that the Hospital is in fact penalising her for incurring the injury.

There are some parallels between the facts of this case and those of the case of Winter v Australian National Hotels Ltd. (IRCA No. 574 of 1995, Lee J, unreported). Mr Winter was a security guard with a casino. Due to an ongoing illness, Mr Winter developed a sensitivity to irritation from smoke. As a result, the management agreed to exclude the casino’s discotheque from his area of duty, because it had higher smoke levels. Some months later, the employer refused to allow Mr Winter to work until he produced a medical certificate stating that he was fit to resume full duties, including the discotheque. Mr Winter was certified fully fit to continue the duties of a security guard subject to his inability to be exposed to high levels of smoke, such as were found in the discotheque. He was offered no further work.

Lee J found that in the circumstances there was a termination at the initiative of the employer. He found that the employer had the capacity to arrange the duties of its employees to accommodate Mr Winter’s inability to work in the discotheque. He found that it was within the bounds of the contract of employment, and reasonable for the employee to expect, that the employer would assign duties amongst the staff as may be necessary from time to time to meet the reasonable requirements of a particular employee. Lee J found that no valid reason for dismissal was shown, and that if there was a valid reason connected with Mr Winter’s capacity, in all the circumstances the termination was nevertheless unreasonable.

It is notable that in the cases cited by the Hospital, the findings were that the applicants could no longer perform the duties of the position for which they were employed. (eg Byrne v ALHMWU & Coca Cola Bottlers, IRCA No. 162 of 1995, Wheeler JR, unreported; HSUA & Smith v Royal Melbourne Hospital, IRCA No. 52 of 1995, Chancellor JR, unreported.) Similarly, in this case, the question is whether Mrs Cochrane could perform the duties of the position for which she was employed, viz the kitchen hand position.

Were I to find that Mrs Cochrane could no longer perform the duties of the position for which she was employed, then I would turn to consider whether she had the capacity to undertake any other productive work. (eg Engberink v Worsley Alumina Pty Ltd, IRCA No. WI 1197 of  1995, Boon JR, unreported).

I find in the present case that the “particular position” from which Mrs Cochrane was dismissed was that of a kitchen hand.

The Inherent Requirements of the Position of “Kitchen Hand”.

The Hospital has not persuaded me that it is more probable than not that Mrs Cochrane’s physical disability prevented her from satisfying the inherent requirements of the position of “kitchen hand”.

There was evidence of Mr Zulberti, the original Director of Services (Exhibit S7), that Mrs Cochrane was told in a meeting on 24 March 1994 that she would not work in the kitchen, despite her making it clear that she wanted to remain there. He said he was not prepared to risk this because of the high risk of injury.

Mr Suiter’s evidence was that Mrs Cochrane could not work as a kitchen hand because it was how she was first injured, and because there were no positions available.

The former point is not conclusive, and the latter point is irrelevant. I am well satisfied that numerous kitchen hands were taken on subsequent to Mrs Cochrane’s injury.

Mr Suiter also pointed to difficult duties, such as repetitive bending to take things in and out of the ovens which are at ground level, lifting heavy pots, pushing trolleys into and out of the kitchen, and carrying vegetables from the cool room.

Various duty statements were tendered in evidence (Exhibits C1 and S8), some of which were superseded while some, prepared by Ms Marie Coulsen, the Area Manager - Hotel Services (“Ms Coulsen”), were current.

The Hospital contends that it has to run an efficient organisation. They say they are in the business of running a hospital, not providing employment for people for the sake of it. The employer cannot, they say, have a situation where a number of people in an organisation rely on people alongside them from time to time to provide support to do a particular task or other. The Hospital says that it cannot carry employees on light duties, and that its staffing levels do not allow constant supervision of domestic staff, or assistance with tasks that could be performed by a person with full capacity. The Hospital says it could not properly oversee the activities of Mrs Cochrane without causing her from time to time to take lifts in lifting or bending, which would contribute to re-injury as a result of her degenerative back condition.

The Hospital argued that Mr Suitor and Ms Coulsen were the persons best qualified to judge whether, as a matter of practicality, Mrs Cochrane could do the job. It was argued that the Court should not seek to place itself in the position of expert hospital administrators, in the absence of internal contradiction, flawed reasoning or prejudice on their part.

I accept that the Court should not lightly interfere with such determinations, but the positive evidence relating to Mrs Cochrane’s capacities was impressive.

The Workers Compensation Conciliation and Review Directorate on 11 November 1994 found, having considered the medical evidence, that Mrs Cochrane had the capacity to work. (Exhibit C2). The Hospital accepted that finding, which ended the obligation to pay workers compensation. Perhaps more significantly, in the course of that hearing, the Hospital’s representative, Mrs Cropley, expressly agreed with the Review Officer’s assessment that there was “an unequivocal certification by both doctors” (ie Dr Singh and Dr Connaughton) that Mrs Cochrane was “fit for kitchen hand duties”.

Dr Singh had certified Mrs Cochrane to be fit to return to work at kitchen hand duties on 23 October 1993, 28 July 1994, 10 November 1994 (“with limited duties”), 21 November 1994, 5 December 1994, 19 December 1994, 19 January 1995, 23 February 1995, 23 March 1995, 21 April 1995 (“as per functional assessment”), 18 May 1995 (“as per functional assessment”), 12 June 1995, 27 July 1995 and 21 August 1995 (Exhibit C3).

On 24 March 1994, Dr Connaughton, the Hospital’s specialist, reported “It is still my opinion that she (Mrs Cochrane) is capable of carrying out her pre-accident duties as a kitchen hand. He reiterates this on 28 September 1994.

On 28 September 1994, Dr Connaughton concluded, having seen a video surveillance film of Mrs Cochrane shot on 18 August 1994, that the video supported the contentions that she may have been exaggerating her disability and that she would be able to resume her pre-accident activities.

The Functional Review Evaluation , which the Hospital did not dispute, said that Mrs Cochrane had the physical capacity to undertake most duties as a Kitchen Hand provided that she restricts lifting to a maximum of 9 kilograms from the floor, 6 kilograms overhead and 14 kilograms horizontally; avoids repetitive bending and has assistance to transport trolleys weighing more than 24 kilograms.

Mrs Cochrane gave her own evidence of her capacities, referring to the duty statements for Relief/Weekend Cook she prepared when she was performing her old job. She said she could perform all her former duties, except that she would need help with manoeuvring the meal trolleys, and would ideally arrange to share the workload of some of the heaviest pot-washing. She would also need to be careful about lifting the heaviest of the pots while cooking - for example a full pot of potatoes. She pointed out however that there were always at least two people rostered for the kitchen, and that it had always been common to help each other out. While she might need help with some jobs, she could help out in others.

She noted that her degenerative condition would have existed for some time before she injured herself. The difference was she was now aware of her limitations and knew to take precautions to avoid re-injuring herself.

She agreed that her condition caused her pain from time to time, but said that many people had to put up with aches and pains in their daily life.

Blokland JR opined in Dempster v Lamprey Pty Ltd T/as Casuarina Tavern, (IRCA No. 194 of 1995, Blokland JR, unreported, 10 May 1995) that “(b)y the use of the “inherent” in S 170DF(2) which qualifies “requirements”, it appears to me the legislature was seeking to provide for the situation where the employee could no longer be seen to be carrying out the essential elements of the position.” I agree with her analysis.

I conclude that it was not an inherent requirement of the kitchen hand’s position in these circumstances that Mrs Cochrane be able to lift more than 9 kilograms from the floor, 6 kilograms overhead and 14 kilograms horizontally; bend repetitively and transport trolleys weighing more than 24 kilograms without assistance.

Whether the Reason for Termination was Valid.

Having concluded that the Hospital breached Section 170DF, it is not necessary for me to set out in detail my deliberations as to whether the Hospital also breached Section 170DE. I have concluded that it did. It was argued that Mrs Cochrane was dismissed for reasons relating to her capacity, and also or alternatively for reasons relating to the operational requirements of the Hospital. It follows from my findings in relation to Section 170DF that I have found that Mrs Cochrane essentially had the capacity to perform her job, and that the operational requirements of the Hospital were not such that they required Mrs Cochrane’s dismissal. Further, for reasons analogous to those expressed by Lee J in Winter v Australian National Hotels Ltd., I have concluded that to dismiss Mrs Cochrane in the circumstances of this case was unreasonable, and therefore contrary to Section 170DE(2).

Calculation of Damages Pursuant to Section 170EE(5)

As an employee of more than 5 years’ service and over 45 years of age, Mrs Cochrane was entitled pursuant to Section 170DB(2) of the Act to at least 5 weeks’ notice of termination of her employment.

I accept that Mrs Cochrane’s letter of termination, dated 21 July 1995 (Exhibit C4), was received by her on 26 July 1995, and that her termination took effect on 6 August 1995. From 11 November 1994 to 6 August 1995, Mrs Cochrane had been employed by the Hospital but, because they had been refusing to roster her to work, she had been treated as being on leave without pay and was receiving no remuneration.

Such notice as Mrs Cochrane received was therefore unpaid.

Mr Droppert contended that Mrs Cochrane was entitled under the section to paid notice, or pay in lieu of notice. In my view that will not necessarily always be the case.

In a situation where, for example, an employee was not willing or able to perform the inherent duties of a position, or was on leave without pay by agreement with the employer, then it may be that notice may be properly and effectively given, even though the employee is not being paid during the notice period. If there were a failure to give adequate notice in those circumstances, then it may be that there would be no requirement to make payment in lieu of notice.

However, it is not necessary for me to decide that matter in this case. I have found that Mrs Cochrane was able to satisfy the inherent requirements of her position as kitchen hand. It was therefore wrong of the hotel to deny her income by denying her work. Had the hotel been meeting its responsibilities, Mrs Cochrane would have been receiving income in the weeks prior to 6 June, 1995, and she should therefore receive damages in lieu of the 5 weeks notice to which she was entitled, calculated at the rate of $385 per week, based on her annual gross income of $20,000.

Calculation of Compensation Pursuant to Section 170EE(2)

Between the hearing of this matter and the handing down of the decision, the Industrial Relations and Other Legislation Amendment Act 1995 has been proclaimed. This has had the effect of amending Section 170EE(2) as it applies to this case, so that the Court may now make an order for compensation “if the Court considers it appropriate in all the circumstances of the case”. Having considered all the circumstances of this case, I consider it appropriate to order compensation.

Mrs Cochrane’s uncontradicted evidence was that her earnings in the year prior to her dismissal were $20,000. I have therefore proceeded on the basis that she is likely to have earned remuneration of $10,000 in the six months after the date of termination, had the Hospital rostered her to work in the kitchen and not terminated her employment, so that $10,000 is the maximum award of compensation I can make to Mrs Cochrane.

Mrs Cochrane’s workers compensation claim was settled prior to the conclusion of this hearing with payment up to 6 August 1995. The amount received by Mrs Cochrane in settlement of her workers compensation claim does not, therefore, reduce the loss incurred after that date resulting from her dismissal.

Mrs Cochrane has received social security payments since early August 1995, but they are not remuneration to be deducted from any award of compensation: Mullaney v Active Concrete, IRCA No. 262 of 1995, Wilcox CJ, unreported.

I am satisfied that Mrs Cochrane’s loss arising from her unlawful termination exceeds the amount of maximum award of compensation I can make, and see no reason not to make the full award of compensation within my power.

Conclusion

Accordingly, I will order that the Respondent pay the Applicant compensation of $10,000, and damages in lieu of notice.

I certify that this and the preceding 18 pages are a true copy of the Reasons for Judgment of Judicial Registrar R.D. Farrell.

Legal Assistant:

Date:  21 February 1996

Counsel for the applicant:                  Mr G. Droppert
Solicitors for the applicant:                Dwyer Durack

Representative for the respondent:     Mr M. O’Connor
  Chamber of Commerce and Industry
  of Western Australia (Inc)

Hearing date:         6, 7, 8 and 14 November 1995
Judgment date:      21 February 1996