Stephens v Australian Postal Corporation

[2011] FMCA 448

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STEPHENS v AUSTRALIAN POSTAL CORPORATION [2011] FMCA 448

INDUSTRIAL LAW – Contravention of civil remedy provisions – breaches of general protection provisions of the Fair Work Act – liability to penalties established – reinstatement ordered – matter adjourned for penalty hearing.

Evidence Act 1995 (Cth), s.140
Fair Work Act 2009 (Cth), ss.12, 340, 341, 342, 351, 352, 360, 361, 371, 391, 539, 545, 546, 570
Fair Work Regulations 2009 (Cth), reg.3.01(2)
Federal Magistrates Act 1999 (Cth), s.26
Federal Magistrates Court Rules 2001 (Cth), Pt 27
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss.4, 5A, 5B, 8, 9, 11, 12, 15, 16, 19, 24, 27, 29, 37, 40, 53, 54, 69, 98A, 108A, 108B
Workplace Relations Act 1996 (Cth), s.170CH

Apthorpe v Repatriation Commission (1987) 77 ALR 42
Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333
Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 274 ALR 570; [2011] FCAFC 14
Bayford v Maxxia Pty Ltd [2011] FMCA 202
Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539.
Esber v Commonwealth of Australia (1992) 174 CLR 430
Hodkinson v The Commonwealth [2011] FMCA 171
Independent Education Union v Geelong Grammar School [2000] FCA 557
Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92
Russo v Aiello (2003) 215 CLR 643
Stephens v Australian Postal Corporation [2010] FMCA 1012
Qantas Airways Ltd v Gama (2008) 167 FCR 537

Applicant: LARRY STEPHENS

Respondent: AUSTRALIAN POSTAL CORPORATION

File Number: SYG 1429 of 2010

Judgment of: Smith FM

Hearing dates: 17, 18 & 19 May 2011

Delivered at: Sydney

Delivered on: 8 July 2011

REPRESENTATION

Counsel for the Applicant: Ms J Keys

Counsel for the Respondent: Mr S Meehan

THE COURT DECLARES THAT:

1. The respondent, Australian Postal Corporation, contravened sections 340(1) and 351(1) of the Fair Work Act 2009 (Cth) when dismissing the applicant, Larry Stephens, from its employment on 7 January 2010.

THE COURT ORDERS THAT:

1. The respondent, Australian Postal Corporation must reinstate Larry Stephens as an employee.

2. The parties have liberty to apply by application-in-a-case for further orders in relation to the implementation and operation of the preceding order.

3. The proceedings are to be re-listed for further hearing in relation to the imposition of penalties.

4. The application is otherwise dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1429 of 2010

LARRY STEPHENS

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

REASONS FOR JUDGMENT

1. Mr Stephens applies under s.546(1) of the Fair Work Act 2009 (Cth) for the imposition of pecuniary penalties on the corporation known as Australia Post. He alleges that it was in contravention of three ‘civil remedy provisions’ under s.539(2) item 11, which refers to the ‘general protections’ set out in Chapter 3 concerning the ‘rights and responsibilities of employees, employers, organisations etc’. He first alleges that Australia Post’s termination of his employment with Australia Post on 7 January 2010 was in contravention of s.340(1) as ‘adverse action’ under s.342(1) item 1(a), which was taken ‘because’ he had ‘workplace rights’ under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRCAct”) arising from a work injury suffered on 3 December 2009, and because he had exercised some of those rights and could exercise other rights. The allegation of ‘adverse action’ is also put in the alternative, under s.340(1)(b), that the termination had the reason or intention ‘to prevent the exercise of’ his workplace rights under the SRCAct. His second allegation is that his termination was in contravention of s.351, since the termination was taken “because of” a “physical …disability” suffered in the work injury. His third allegation is that it was in breach of s.352, since it was taken “because” he had been “temporarily absent from work” because of his injury from 7 to 11 December 2009, and on 17 and 24 December 2009. I have extended time under s.371(2) to allow Mr Stephens’ claims to be commenced in this Court (see Stephens v Australian Postal Corporation [2010] FMCA 1012).

2. Mr Stephens claims “an order for reinstatement”, as consequential relief under s.545(2)(c) of the Fair Work Act. He makes no claim for a monetary award of compensation under s.545(2)(b), because he regards reinstatement as a sufficient and more appropriate remedy (citing Independent Education Union v Geelong Grammar School [2000] FCA 557 at [34]), and because he is currently litigating in the Administrative Appeals Tribunal for some – but not all – of his possible entitlements under the SRCAct.

3. Under s.360 of the Fair Work Act, “a person takes action for a particular reason if the reasons for the action include that reason”. Under s.361(1) it is to be “presumed” that a person “took … action for a particular reason … unless the person proves otherwise”. Under s.551 the factual issues are to be determined in accordance with the rules of evidence, including the ‘balance of probabilities’ standard of satisfaction in civil proceedings, but taking into account the matters identified in s.140(2) of the Evidence Act 1995 (Cth) (see Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [110], [123]-[132]).

4. Australia Post has met Mr Stephens’ case with some ‘threshold’ contentions, which arise before the ‘reverse onus’ comes into operation in relation to the three civil remedy provisions. It also contends that it has explained Mr Stephens’ termination in evidence which sufficiently overcomes the presumption under s.361(1) as to the reasons for taking that action. It also disputes that, if any of the contraventions are established, an order for reinstatement would be appropriate. It is common ground that, if I find liability for any pecuniary penalty, I should defer consideration of whether and what penalty should be imposed, until after hearing further submissions.

5. In summary, as I understood Australia Post’s case, it contended that:

   i)Mr Stephens’ termination was incapable of being adverse action under s.340(1), because any benefits, to which he was then entitled or could later become entitled under the SRCAct, would not be “under a workplace law” within the definition of ‘workplace right’ in s.341 applying the relevant definition of ‘workplace law’ in s.12. It submitted that the SRCAct could not be characterised within paragraph (d) of that definition as “any other law of the Commonwealth … that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”.

   ii)Mr Stephens has not established that at the date of his termination, he was a person who ‘had’ a ‘benefit’ under the SRCAct, nor that he ‘had’ exercised a right to any benefit, nor that he proposed to exercise a right to claim any benefit, nor that his termination would ‘prevent’ his obtaining any benefit under the SRCAct, so as to come within any of these concepts in the subparagraphs to s.340(1)(a) or paragraph 340(1)(b).

   iii)If any of these matters was established by Mr Stephens, Australia Post has overcome the presumption under s.361, by proving on the balance of probabilities that the person who made the decision, Mr Brennan, was actuated by only two considerations. These were the two adverse findings identified in a letter of termination:

   On 5 January 2010 you failed to collect mail from a business customer whilst completing Duty G0013.  In doing so you failed to provide customers with products and services consistent sound commercial principles and failed to exercise due care in the performance of your work.

   On 5 January 2010 at approximately 6.20pm you used inappropriate language when engaged in a discussion with your Manager, Mr Ashley Zieden.  In doing so you failed to treat everyone with courtesy and respect and caused embarrassment and offence to others in the workplace.

   iv)In relation to the alleged discrimination under s.351, Mr Stephens has not established that at the date of his termination he suffered from a ‘physical disability’ within the meaning of s.351(1).

   v)If there was a physical disability, Australia Post has rebutted the presumption under s.361, since Mr Stephens’s disability was not known to Mr Brennan, and since Mr Brennan was actuated by only the two above considerations.

   vi)In relation to the alleged contraventions of s.352, Australia Post initially contended that Mr Stephens had not established that his particularised absences from work were “because of illness or injury of a kind prescribed by the regulations” within the language of that section.  Under the Fair Work Regulations 2009 (Cth), reg.3.01(2) such an illness or injury is deemed to exist “if the employee provides a medical certificate for the illness or injury” within 24 hours or a longer reasonable period.  However, Mr Stephens tendered a series of medical certificates from Australia Post’s records and, as I understood him, counsel for Australia Post withdrew this contention at the end of his submissions.

   vii)Australia Post has rebutted the presumption under s.361 in relation to contravention of s.352, since Mr Stephens’s time off work was not known to Mr Brennan, and since Mr Brennan was actuated by only the two above considerations.

   viii)An order for reinstatement of Mr Stephens would be an inappropriate exercise of discretion under s.545(2), because: (i) Mr Stephen’s contract of fixed term employment at the time of termination was due to expire 9 working days later; (ii) Mr Stephens has not established any tangible prospect of further employment by Australia Post; and (iii) Mr Stephens’ current disabilities might render him incapable of performing work of the same nature as his terminated employment.

6. I shall address these issues in the course of my examination of the relevant circumstances below.  As will appear, I do not consider that Australia Post’s ‘threshold’ contentions have substance.  More difficult, has been my consideration of Mr Brennan’s evidence as to the reasons for deciding to terminate Mr Stephens’ employment.  After consideration of all the evidence, I have not been able to reach satisfaction as to the complete, ‘real’, or ‘true’ reasons for the termination. 

7. As I shall explain, my acceptance of Mr Brennan’s evidence about the reasons is made difficult by the almost total lack of contemporaneous documentation as to the investigations and deliberations leading to his decision, by my reservations as to the reliability of his evidence to the Court by reason of his poor memory and guarded presentation as a witness, by surrounding circumstances which point to unexplained unfairness of procedures, by the disproportionality of the decision, and by the unexplained failure of Australia Post to call a significant witness from its Human Resources department who advised Mr Brennan. These elements raise a substantial doubt whether there might not have been an additional, unstated, reason for terminating Mr Stephens’ employment. A hypothesis has not been dispelled from my mind on the balance of probabilities, that the decision might have been materially influenced by the relevant manager’s and his advisors’ knowledge of Mr Stephens’ pending workers’ compensation claim, and by Australia Post’s consequential possible exposure to significant obligations to provide Mr Stephens with rehabilitation and suitable light employment if he continued as an employee. For all of these reasons, which will emerge from my judgment below, I have not been persuaded on the balance of probabilities that Australia Post has overcome the presumption raised by s.361 in relation to contraventions of s.340 and s.351.

8. I am, however, satisfied on the balance of probabilities that it is improbable that Mr Brennan’s decision was materially influenced by the circumstance that Mr Stephens had been absent by reason of injuries on some days during December 2009. The alleged contravention of s.352 is therefore not found.

9. I have concluded that Australia Post is liable for penalties for, in effect, one contravention of s.340(1) and for one contravention of s.351. As I shall explain, I consider that an order for reinstatement is an appropriate remedy, although it will carry some uncertainties as to what it will deliver to Mr Stephens in the future.

Did Mr Stephens have ‘workplace rights’ under the Safety, Rehabilitation and Compensation Act coming within s.340?

1. It is convenient to address this question before exploring the facts in the case further, since an analysis of the position of Mr Stephens and his employer under the SRCAct provides a relevant legislative background to the actions of Australia Post’s managers.

2. Section 340(1) of the Fair Work Act provides:

   340  Protection

   (1)A person must not take adverse action against another person:

   (a)because the other person:

   (i)     has a workplace right; or

   (ii)     has, or has not, exercised a workplace right; or

   (iii)   proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

   (b)to prevent the exercise of a workplace right by the other person.

   Note:     This subsection is a civil remedy provision (see Part 4‑1).

3. The relevant part of the definition of ‘workplace right’ in s.341 is:

   341  Meaning of workplace right

   Meaning of workplace right

   (1)     A person has a workplace right if the person:

   (a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

   (b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

   (c)is able to make a complaint or inquiry:

   (i)     to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

   (ii)     if the person is an employee—in relation to his or her employment.

   (2)     Each of the following is a process or proceedings under a  workplace law or workplace instrument:

   …

   (k) any other process or proceedings under a workplace law or workplace instrument.

4. “Workplace law” is defined in s.12 as:

   (a)this Act; or

   (b)the Fair Work (Registered Organisations) Act 2009; or

   (c)the Independent Contractors Act 2006; or

   (d)any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

5. The long title to the SRCAct is “An Act relating to the rehabilitation of employees of the Commonwealth and certain corporations and to workers’ compensation for those employees and certain other persons, and for related purposes”.  In my opinion, a brief consideration of its scheme and provisions shows clearly that it is a “law of the Commonwealth …that regulates the relationships between employers and employers”.  It is not necessary to consider whether it may also be characterised as “dealing with occupational health and safety matters”. It is enough, in my opinion, to point to the following features of the SRCAct in its application to Mr Stephen’s employment by Australia Post:

   ·Australia Post did not dispute the implication, from the evidence before me showing the receipt and consideration of Mr Stephen’s compensation claim by its officers, that for the purposes of the SRCAct it is a ‘licensee’ under Part VIII of the SRCAct which has both accepted ‘liability under this Act for payments in respect of injury, loss or damage suffered by, or the death of, some or all of its employees’ including Mr Stephens, and also has accepted ‘the function of managing claims under this Act in respect of that injury, loss, damage or death’ (see ss.98A, 108A, 108B and 108E). In addition, the principal officer of Australia Post is the ‘rehabilitation authority’ in relation to its obligations in relation to the provision of rehabilitation programs (see the definition in s.4).

   ·Australia Post was therefore the ‘relevant authority’ in relation to ‘an employee who is employed’ by it (see the definition in s.4(1)), and the provisions of the Act which impose liabilities on Comcare in relation to most Commonwealth employees are to be read as imposing the same liabilities on Australia Post in relation to Mr Stephens (see s.108A(1)).

   ·Under ss.11 and 12:

   11Liability of relevant authority

   The liability of a relevant authority to pay compensation to a person under this Act is the liability of that authority to pay to the person such amount or amounts as are determined by that authority to be payable to the person under this Act.

   12Amounts of compensation

   An amount of compensation payable under a provision of this Act in respect of an injury is, unless the contrary intention appears, in addition to an amount of compensation paid or payable under any other provision of this Act in respect of that injury.

   ·A general liability is placed by s.14 on Comcare in relation to most Commonwealth employees, and on a licensee in relation to its own employees, “to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”  The definition of ‘injury’ in s.5A encompasses “an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment”.  The definitions also extend the concept of ‘injury’ to ‘a disease’ if it meets the requirements of s.5B, including that the disease was “contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.”

   ·The SRCAct also provides heads of specific liability on Comcare or a licensee to pay compensation: for loss or damage to property resulting from an “accident” which results in the loss of, or damage to, property used by the employee (s.15); for the cost of medical treatment obtained in relation to the injury (s.16); for incapacity for work by way of weekly payments, calculated as the difference between the employees normal weekly earnings before the injury and the amount he or she is able to earn in suitable employment or is earning from any employment (s.19, applying ss.8 and 9); for permanent impairment and non-economic loss, by way of lump sums (ss.24 and 27); and for household services needed as a result of an injury (s.29).

   ·An injured employee is also entitled to obtain an assessment of his or her capacity to undertake a rehabilitation program.  If the rehabilitation authority determines that “an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program”, it may arrange for this, including by continuing weekly payments at the cost of the rehabilitation authority, i.e. Australia Post in relation to its own employees (see s.37). 

   ·The SRCAct also imposes a duty on the employer under s.40(1):

   40Duty to provide suitable employment

   (1)Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment.

   (2)     In this section:

   relevant employer means:

   (a)     in relation to an employee employed by a Commonwealth authority—that authority; and

   (aa)   in relation to an employee employed by a licensed corporation—that corporation; and

   (b)     in relation to any other employee—the Commonwealth.

   ·An injured employee’s access to any of the above benefits is conditional upon notice of the injury being given ‘as soon as practicable’, and ‘a claim for compensation’ accompanied by a medical certificate being lodged (ss.53 and 54).  The lodgement of the initiating claim then triggers obligations on the determining authority – Australia Post in relation to its own employees – to address such heads of compensation as might be further claimed by the employee or become apparent from time to time. 

   ·Australia Post’s various determinations in this respect are subject to procedures for reconsideration on its own motion or at the request of a claimant, and attach a right of merits review by the Administrative Appeals Tribunal (see Part VI of the SRCAct).

1. In my opinion, the above elements in the scheme of the SRCAct undoubtedly ‘regulate the relationship between employers and employees’ at the most basic, economic, foundations of that relationship. It imposes financial and other obligations on the employer to meet the compensation and workplace needs of its injured employees, and ‘regulates’ the employees’ entitlements to compensation and other benefits under that Act. This is direct and clear in relation to employers who are licensees such as Australia Post. But it is also clear in relation to the Commonwealth when acting as an employer through its various other entities, from whom Comcare receives ‘premiums’ and other budgetary adjustments to meet the Commonwealth’s liabilities to its employees under the SRCAct (see ss.69(eb) to (ef), and Division 4 of Part VII). It is immaterial to analyse whether an employee has a ‘right’ to a particular monetary or other benefit, or whether he or she only has a ‘right’ to have his or her eligibility to compensation under the SRCAct determined according to law and by the correct or preferable exercise of power in the circumstances (cf Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440).

2. In my opinion, the SRCAct therefore falls within paragraph (d) of the definition of ‘workplace law’, even in the narrow sense suggested by Barker J in Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 at [234]: “a law that directly impacts, whether in a positive or negative way, or authorises a court or some other body to make decisions that directly impact, on, or on the exercise of, particular rights, duties or obligations that define the relationships of employers and employees”.  I note also the opinion of Riley FM in Bayford v Maxxia Pty Ltd [2011] FMCA 202 at [141], that the Equal Opportunity Act 1995 (Vic) is a ‘workplace law’.

3. The above analysis of the SRCAct also explains the nature of the ‘workplace rights’ relevant to Mr Stephens’ work injury and claim for compensation which he lodged with Australia Post before his termination. I shall give more details about this below. In short, Mr Stephens was injured in the course of his employment on 3 December 2009. He completed a general claim ‘for rehabilitation and compensation’ in relation to a ‘lumbar-hip strain’, and gave it to his supervisor, Mr Haddad, on 9 December 2009. Mr Haddad signed an incident report on 7 December 2009, and an ‘investigation and action’ report on 14 December 2009. The area manager, Mr Crum, endorsed Mr Haddad’s report on 24 December 2009. All these forms and various medical certificates were forwarded to Australia Post’s compensation section, and were received by it no later than 6 January 2010. This was the day before Mr Brennan terminated Mr Stephens’ employment. After his termination, a series of determinations were made addressing Mr Stephens claim and some, but not all, of his possible entitlements under the SRCAct.

4. It is apparent that immediately before his termination, Mr Stephens therefore ‘had’ a bundle of ‘workplace rights’ under the SRCAct falling within both paragraph (a) and (b) of s.341(1), including entitlements which can be characterised both as ‘the benefit of’ the SRCAct and as the ‘the ability’ to ‘initiate, or participate in, a process, or proceedings under’ the SRCAct. It is enough to identify the following rights as being included in his entitlements at the date of his termination, without needing to assume the task which will be performed by the AAT when deciding their precise content:

   a)a right to a determination by Australia Post of its general liability under s.14 in respect of the claimed injury;

   b)a right to a determination by Australia Post of Mr Stephens’ entitlement to past incapacity payments for his time off work on dates for which medical certificates had been provided;

   c)rights to have determinations by Australia Post of future entitlements to incapacity payments, in the event that he suffered further time off work or restrictions on his capacity for work, producing a loss compensated under s.19. The measure of such losses from time to time would involve determinations of whether he had continuing loss of earnings, and whether these resulted from an incapacity for work as a result of the injury. It would also involve determinations of ‘the amount per week that an employee is able to earn in suitable employment’ under the provisions of s.19(4). These matters would be directly or indirectly affected not only by the level of his incapacity from the injury, but also by whether his employment with Australia Post was continuing, whether he held other employment, and whether he was unemployed;

   d)rights to an assessment by Australia Post of his ‘capability of undertaking a rehabilitation program’ which could involve the provision of suitable work for him by Australia Post.  There is evidence that Australia Post regarded its obligations in this respect as ceasing upon the termination of his employment;

   e)rights to determinations in relation to possible sundry other future heads of compensation in respect of the injury, including the cost of medical treatment from time to time, and any claims for permanent impairment and non-economic loss.

5. In my opinion, in terms of s.340(1) of the Fair Work Act, at the time when Mr Brennan was considering whether to decide to terminate Mr Stephens’ employment, Mr Stephens can be regarded as:

   a)a person who ‘has a workplace right’ – being one or more of the above rights under the SRCAct; also

   b)a person who ‘has exercised a workplace right’ – being his right to make an initiating claim for compensation and rehabilitation in respect of his injury; also

   c)a person who ‘proposes to exercise a workplace right’ – being his potential future rights to specific determinations in relation to medical treatment, rehabilitation, future incapacity payments, and possible future permanent impairment compensation.

6. On the above reasoning, I am satisfied that Australia Post’s challenge to the existence of any ‘threshold’ element in the allegation of contravention of s.340(1) should not be accepted. The ‘reverse’ onus therefore falls on Australia Post to establish that Mr Stephens’ termination did not occur ‘because’ of the existence, or possible future existence, of any of the above rights under the SRCAct, and that it did not occur for the reason or with the intention of preventing him from exercising any right under the SRCAct.

7. I shall address that issue, after narrating the relevant evidence.

Mr Stephens’ employment by Australia Post

1. Mr Stephens was first employed by Australia Post as a part-time (25 hours per week) driver/sorter on a fixed term contract from 11 May 2009 until 28 October 2009.  After about six weeks at Blacktown, he was transferred to the Gosford Hub at Lisarow, where he remained until his employment was terminated on 7 January 2010.  A second term contract was offered to Mr Stephens, very shortly before the expiry of the first contract.  A letter from the ‘Manger Administration, Hub Operations’ setting out its terms is dated 21 October 2009, and was signed by Mr Stephens in the presence of the manager of the Gosford Hub, Mr Haddad.  The letter states that it offered Mr Stephens “continuing fixed term employment with Australia Post for the period listed below”, and then lists 9 conditions.  The following have relevance to the present case:

   1.Your fixed term employment is from 29 October 2009 to 20 January 2010 inclusive;

   2.Your employment under this contract will cease on the specified date unless an offer is made in writing to you to extend the period of your employment, any oral representations of any kind indicating that any further contract may be offered are not to be taken as forming any part of the conditions of your employment;

   3.Nothing in this offer of engagement is to be taken as a commitment by Australia Post to grant, or to give consideration to granting, any further contract of employment and you should not assume, therefore, that Australia Post will give consideration to offering you further employment beyond the cessation date shown above.

   4.Australia Post and its employees are committed to flexibility and best practice in the performance of work.  As Australia Post continues to undergo change you will be required to carry out such duties as are directed by Australia Post from time to time.  You may be required to change your work location (ie. you may be relocated to another workplace) and/or there may be a requirement to change your hours of work to meet operational needs.  This may apply in any future position you may be transferred to or undertake in Australia Post.

   ….

   6.This offer of employment is on a fixed term basis and you should not hold any expectation that it will lead to permanent employment.  Australia Post’s full-time work workforce is not increasing and in some areas, full-time vacancies are infrequent.  Australia Post has the right to increase the hours of part-time employees and subject to 3 months notice to decrease the hours of such employees.

   ….

   8.You will not be eligible for redundancy benefits at the expiration of this employment period;

   9.Your employment may be terminated at any time prior to the expected cessation date. You shall then be entitled to a period of notice of termination of engagement as prescribed by the Workplace Relations Act 1996 or payment in lieu of notice.

   Grounds of termination may include:

   ·    Position no longer required

   ·    Unsatisfactory performance

   ·    If you are replacing a permanent employee and that employee returns to work;

   ·    Misconduct (although in the case of serious and wilful misconduct no notice or payment in lieu will be given).

2. The drivers at the Gosford Hub were immediately supervised by two leading hands, including Mr Ziedin, and were locally managed by the Gosford Hub manager, Mr Haddad.  Mr Haddad was under the supervision of the area manager of the North Hubs, encompassing Frenchs Forrest, St Leonards, Gosford and Pymble Hubs.  At relevant times, Mr Crum filled that position on an ‘acting basis’, with his nominal position being manager of the Frenchs Forest Hub.  In turn, Mr Crum and four other area managers were under the supervision of the Hub operations manager, I assume, for NSW or some other region.  Mr Brennan was acting in this position for two weeks from Monday 4 January 2010, during which period he received and investigated the complaints, and made the decision, which led to the termination of Mr Stephens’ employment.  His substantive position was as area manager for the south-west network, and he had no previous involvement with the Gosford Hub, nor with Mr Stephens’ employment. 

3. Mr Brennan and Mr Crum both gave evidence that the powers both to commit Australia Post to any extension of Mr Stephens’ employment, and to terminate his employment, were delegated to Mr Brennan and no lower in the management hierarchy.  I accept this evidence.  However, it is difficult to imagine that such decisions would not usually have been made based upon reports from lower managers with first hand knowledge of the employment needs of the places of employment, and of the work capacities and histories of the employees and prospective employees to be employed in those workplaces.  It is also difficult to imagine that such decisions would not usually have been significantly influenced by general personnel policies and practices advised by Australia Post’s human resources officers.  Particularly, in Mr Brennan’s position as acting operations manager responsible in relation to the staff of the Gosford Hub for only two weeks.

4. There were live issues before me whether, before his termination, Mr Stephens had been given any expectation that he would be considered for further employment beyond January 2010, and also whether the evidence, considered objectively, allowed the Court to draw any conclusions as to the likelihood of this occurring.  The evidence relevant to both of these matters was fragmentary. 

5. This was notable in the evidentiary case of Australia Post, which could have been expected to have led clear evidence, if it existed, showing that there was no likelihood of Mr Stephens being employed beyond 20 January 2010, if he had not been terminated on 7 January 2010 – either with or without a work-related incapacity.  Particularly, where Australia Post was facing an allegation, which it was required to disprove, that the termination was materially influenced by a desire to avoid possible worker’s compensation obligations in the course of any continuing future employment of Mr Stephens, in particular in relation to providing restricted duties if this was necessary.  In this respect, as with other aspects of Australia Post’s case, I must weigh the evidence led by both parties “according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” (cf. Russo v Aiello (2003) 215 CLR 643 at [11])

6. Australia Post’s evidence in this respect was confined to leading evidence from Mr Crum, who denied Mr Stephens’ evidence that he told Mr Stephens in November 2009 that “we are going to make you permanent. I will get you assessed as a truck driver. We can’t afford to lose good staff”.  The basis of his denial was the technical reason, that he had no delegated power to decide to employ anyone.  Otherwise, Mr Crum denied any memories of talking to Mr Stephens about his future employment with Australia Post in the Hubs under his management, whether in November 2009 or later.

7. However, no evidence was led by Australia Post to show that Mr Stephens was not regarded as ‘good staff’ by managers who were familiar with his work – including Mr Haddad and Mr Crum, prior to the events on 5 January 2010 which I shall consider below.  Mr Crum conceded that, before these events, he had never heard of Mr Stephens missing an appointment with a customer (see transcript p.65).  There is also no evidence that Mr Stephens ever previously swore at a supervisor or fellow employee, or had any other adverse work reputation or history.  There is evidence showing that both Mr Haddad and Mr Crum accepted, without any equivocation, Mr Stephens’ account of his work injury which I shall narrate below.

8. There is evidence from Mr Crum suggesting that he had a generally helpful attitude towards assisting employees under his supervision to apply for better work opportunities, including Mr Stephens.  This attitude was shown in admitted exchanges between Mr Stephens and Mr Crum, in which the latter made enquiries about the availability of permanent work for Mr Stephens in another region of Australia Post.  This did not eventuate, but I would not infer from Mr Crum’s SMS message about this, that he did not later talk to Mr Stephens about the possibility of continuing Mr Stephens’ fixed term employment at Gosford, including a possibility of a permanent vacancy becoming available to him.   I consider it likely that he would have discussed this with Mr Stephens.

9. Mr Crum gave evidence that ‘at that stage’ there were about four out of 38 employees at the Gosford Hub who were employed on fixed-term contract, relieving the positions of employees who were on restricted duties.  He said that in every Hub there were always employees on such contracts.  He said that he could have said to Mr Stephens that “there are permanent roles that are being looked at” (transcript p.42).  He said: “The procedure is that we look at the structure of the hub, the staffing, as per the operational and then a decision is made whether or not we fill those roles” (transcript p.44).

10. Mr Stephens gave evidence of observing his immediate manager, Mr Haddad, publish a roster of ‘annual recreational leave’ for Gosford Hub for 2010, which shows Mr Stephens’ name with anticipated leave to be taken in September 2010.  The roster is in evidence.  It seems likely that this occurred during November or December 2009, and Mr Stephens said that it was published before his injury.  No evidence was led from Mr Haddad nor any other manager, as to the basis on which Mr Haddad had an expectation that Mr Stephens would still be employed in September 2010.  The roster, at least, suggests that there was no expectation of a return-to-work of an employee whose position Mr Stephens was relieving.

11. A further indication that Mr Stephens’ employment was likely to have continued beyond January 2010 is found in the correspondence subsequent to his termination, concerning his workers’ compensation entitlements.  I shall below explain the context of this correspondence.  I accept the caution with which I must address it as evidence of hindsight in relation to the reasons for the termination.  However, I note that an email dated 9 March 2010 from an officer in the Australia Post compensation section to Mr Crum and others, including the Australia Post Human Resources consultant Mr Craig who gave advice to Mr Brennan at the time of termination, contains the statement: “But for his termination suitable duties would have been available to him at his normal weekly hours”.

12. Weighing Mr Stephens’ evidence in the light of the other evidence, I am persuaded that he probably received statements from the area Hubs manager in November 2009, before he was injured, suggesting a real prospect of his continuing employment as a truck driver/sorter in the Gosford Hub or another Hub under Mr Crum’s management, and of future consideration for permanent employment if this became available.  I consider it likely that Mr Crum would have expressed this prospect in somewhat contingent terms, although Mr Stephens might not have understood the subtleties of his expression.  I also consider that Mr Crum was probably in a good position in Australia Post to provide that advice, and would not have given it if there was no prospect in his mind of Mr Stephens’ employment not being continued when his contract expired in the following January. 

13. When accepting this much of Mr Stephens’ evidence, I have given weight to my general conclusions as to his credibility as a witness.  This is generally high, and higher than that of my assessment of the Australia Post witnesses where there are conflicts in the evidence.  Mr Stephens showed a generally far better level of recollection of events, and was not substantially shaken in his recollections.  He impressed me as a person who was endeavouring to give complete, candid, and truthful evidence to the best of his recollections.  At some points, I consider that his evidence was coloured by subsequent events and by a tendency to argumentativeness, and I have taken these hesitations into account where necessary.

14. Doing the best I can with the evidence before me, and accepting that a prediction as to Mr Stephens’ continuing employment if he had not been terminated is necessarily speculative, I have concluded that there is a likelihood, which is more probable than not, that if his contract had not been terminated prematurely by Australia Post, his employment at the Gosford Hub would have been extended for at least for another six months on similar terms to his employment in January 2010. I find that it is likely also that he would have been considered for further employment beyond that period, but that it is impossible to make a prediction on the balance of probabilities as to the likely total duration of his fixed term employments, nor whether or not he would have been offered permanent or more desirable terms of employment. I find that it is probable that, if his contract had not been terminated nor expired in January 2010, Australia Post would have given consideration when deciding the terms of his further employment, to its responsibilities under the SRCAct in relation to the provision of suitable employment and rehabilitation to an existing employee in relation to his workplace injury.

1. I shall below consider the implications of these findings for my reasoning in relation to Australia Post’s reasons for terminating Mr Stephens’ employment, and in relation to the grant of relief by way of reinstatement.

Mr Stephens work injury and compensation claim

1. Mr Stephens gave the following description of his work injury, which was not challenged in cross-examination.

   4.On Thursday 3 December 2009, I was driving the Respondent’s van, which I parked next to the curb and, as I was alighting from the passenger side of the vehicle, I lost my footing and twisted my hip when I stumbled.  I suffered immediate pain, but I continued to work as I thought it would soon improve.  However, instead of improving, the pain in my hip increased over the following days.  I reported the incident when I attended work the following day, on Friday 4 December 2009; but then over the weekend, the pain grew so intense, I couldn’t even put my foot on the ground.  When I was unable to attend work on Monday, 7 December 2009, I attended my doctor – he gave me some ‘painkillers’ (Endone) and a medical certificate stating that I was unfit to attend work from 7 to 11 December 2009 and told me to rest.  I was contacted by telephone at home on Tuesday 8 December 2009 by my supervisor (PTC2), Anthony Haddad, who told me that he had been told by Jim Crumm “to get you back to work”; Anthony Haddad told me to submit a claim for worker’s compensation immediately, and said that he would send someone to my home with a claim form.  A neighbour of mine, who also works for the Respondent, subsequently arrived at my home with a claim form, which I completed immediately.

   5.I resumed duty on 14 December 2009, but I continued to suffer pain and discomfort as a result of the injury to my hip.  I received 4 (four) CT guided injections in my sacroiliac joint at Erina Diagnostic Imaging on 10, 14, 17 and 24 December 2009.

2. Mr Stephens ‘claim for rehabilitation and compensation’ is in evidence, as is his medical certificate giving a diagnosis of ‘lumbar strain injury’, and certifying unfitness from 7 to 11 December 2009.  A second certificate dated 11 December 2009, certifies fitness ‘for suitable duties’ from 14 to 18 December with limits on lifting, sitting, walking and standing. Further certificates were submitted to Australia Post, certifying attendances for medical procedures on 17 and 24 December 2009.  A certificate dated 21 December 2009 certified fitness for suitable duties from 21 to 23 December 2009, and a certificate dated 21 December 2009 certified fitness for suitable duties from 29 December 2009 to 12 January 2010.  The last two certificates gave the diagnosis of ‘lumbar spine sprain’, gave an opinion that ‘the worker’s employment is a substantial contributing factor to this injury’, and described the management plan as ‘analgesia, steroid injections’.

3. An incident report was signed by Mr Haddad on 7 December 2009, and he completed and signed an ‘investigation & action report’ on 14 December 2009.  The attached typed report shows a carefully prepared investigation and analysis by Mr Haddad, which accepted Mr Stephens’ account of his injury.  He reported that Mr Stephens “is a fit and healthy employee”, with “nil previous P400’s for this type of incident”.  His duties are described as “involves customer and Post office collections, loading/unloading van, and clearing SPB’s”.  Mr Haddad’s conclusions were “employee should not have to rush” and “employee to take more care when exiting vehicle using 3 points of contact and know your surroundings”. 

4. I accept Mr Stephens’ evidence that Mr Haddad was aware of the injury soon after its occurrence.  Mr Crum was probably also informed of the incident soon after it was reported, and Mr Crum said that he would have discussed Mr Haddad’s investigation before Mr Haddad prepared his report (see transcript p.50).  Although no witness was called from Australia Post’s compensation section, the evidence suggests that Mr Haddad forwarded the claim and investigation forms to the compensation section soon after he signed them on 9 and 14 December 2009, and informed Mr Crum of this.  According to an internal memorandum written by Mr Haddad on 22 January 2010, Mr Crum “told me that it was his job to authorise claim & to have it returned immediately”.  The forms were then returned to Gosford “close to 7 days later after numerous calls to comp”, and was then “immediately sent to” Mr Crum (see Ex.A document 24).  Mr Crum then signed the claim on a date which is unclear, and he approved and signed Mr Haddad’s investigation report on 24 December 2009. 

5. The claim form and other documents did not reach the compensation section until 6 January 2009.  However, it is apparent that the delays were causing Mr Stephens anxiety, and that he made several inquiries of his managers and of the compensation section before they received the completed forms for the second time.  It seems quite possible that the compensation section had also already received some of the medical certificates in relation to the on-going injury.

6. The compensation section later required Mr Haddad formally to explain why ‘the claim has taken more than 5 working days to reach this office after being lodged with the supervisor’.  He did so, by recounting his efforts to recover the claim so that it could be signed by Mr Crum.  I consider that it is likely from the events preceding the receipt of the claim and other documents by the compensation section, that Mr Stephens injury and his on-going medical treatment were well known by Mr Haddad and Mr Crum, and probably also by other people in Australia Post’s compensation and human resources sections before January 2010, although it is difficult to draw a firm inference in relation to the identity of the other people, in the absence of any evidence from the relevant persons in those sections. 

7. It is undoubted, that on 5 January 2009, the day of the incidents which provided the two stated reasons for Mr Stephens’ termination, Mr Crum was very fully reminded that Mr Stephens had an outstanding compensation claim for on-going lower back injuries.  He agrees with Mr Stephens’ evidence that he discussed this with him in a telephone conversation in the early afternoon on that day, which was not short, and in which he held a “general conversation” with Mr Stephens about treatments for chronic back and shoulder problems, and promised to investigate the delayed compensation claim.  According to his evidence, he then rang the compensation section “and informed them that we have a staff member who put in a claim and I would like to know where that claim is at the present stage” (transcript p.55).

8. I also find that Mr Brennan became aware of Mr Stephens’ work injury and compensation claim before he decided to terminate Mr Stephens’ employment, if only as a result of conversations with Mr Crum and Mr Stephens on 5 January 2010 or on the following day.  The evidence of Mr Crum and Mr Brennan about these conversations is fragmentary and not consistent, and the evidence of both of them suffered from confusion about the relevant dates and times.  They produced no contemporaneous records of their conversations.  Neither of them made reference to their conversations in their affidavits, but Mr Brennan readily conceded in cross-examination that Mr Stephens had told him about his injury in the course of their conversations, when Mr Brennan went to the Gosford Hub on 6 January 2010 to investigate the complaint by Mr Crum of hearing Mr Stephens swear at Mr Zieden (transcript p.5). 

9. Mr Brennan also gave evidence that he was aware of Mr Stephens’ explanation for missing a pick-up from Husqvarna on 5 January 2010, being that he had been delayed by discussing his delayed workers’ compensation claim with Mr Crum (see transcript p.7).  Mr Brennan said that he had spoken to Mr Crum about this, before making his decision on 7 January 2010, and before discussing the matter with Mr Craig (see transcript p.13-14).  Mr Brennan thought that this conversation occurred on the day of his decision, and I am inclined to accept his recollection in this respect, notwithstanding that there is no record of it, and that Mr Crum has no recollection of speaking to Mr Brennan on that day (see transcript p.65). 

10. Notwithstanding that Mr Crum denies giving any advice or recommendation in relation to the termination of Mr Stephens’ employment, I consider it probable that in one of his conversations with Mr Brennan concerning the complaints against Mr Stephens’ conduct on 5 January 2010, he informed Mr Brennan that Mr Stephens had an outstanding compensation claim in relation to a continuing back injury.  I also consider it probable that Mr Crum and Mr Stephens made Mr Brennan aware that Mr Stephens’ complaints of disability were on-going, and that both managers must have been aware that his injury might lead to a chronic disability which might need to be addressed by the provision of restricted duties if his employment continued.

11. Noting the absence of any evidence to the contrary, I would also infer that these circumstances probably were made known to the Australia Post’s human resources consultant, Mr Craig, with whom Mr Brennan discussed Mr Stephens’ employment on the morning of 7 January 2010, before deciding to terminate his employment only days before it was due to expire. Mr Stephens’ injury and outstanding compensation claim appears to me to be a matter of obvious relevance to Australia Post in relation to the decision which was being discussed by these senior managers about his continuing employment. As I shall recount, the unexplained absence of Mr Craig and of any other evidence from Australia Post explaining how the existence of the compensation claim and potential liabilities under the SRCAct were discussed between Mr Craig and Mr Brennan, contributes to my doubts whether the two stated reasons for the termination provide the complete explanation for the decision which Mr Brennan made on Mr Craig’s advice.

12. After Mr Stephens’ employment was terminated, the following events occurred in relation to his outstanding compensation claim:

    ·Mr Stephens submitted a ‘progress’ medical certificate dated 12 January 2010 confirming work-related ‘lumbar strain injury’, and showing fitness for suitable duties from 12 January  to 12 February 2010 (see Ex.A document 19).  Similar certificates were later submitted in relation to later months up to 12 May 2010 (see documents 27, 31, 32, diagnosing “lumbar sprain/lumbar disc protrusions”).

    ·On 13 January 2010, the Australia Post claims manager determined that “I have accepted liability under section 14(1) of the SRC Act 1988 for lumbar sprain. The date of injury has been determined as 03-Dec-2009”. A payment under s.19 for absences from 7 to 11 December 2009 was approved, and Mr Stephens was told that liability for ‘any reasonable medical expenses for your accepted work related condition will be considered for payment in accordance with section 16”.  Claims in relation to absences on 17 and 24 December were not accepted on the basis that the medical attendances were not shown to have involved a “legally qualified medical practitioner” (see Ex.A documents 21-22).  Those claims were later accepted (see Ex.A document 26).

    ·By letter dated 9.2.10 (Ex.A document 25), Mr Stephens was informed:

    I note that your current medical certificate, issued by Dr P Shah on 12.1.10 indicates that you are fit for suitable duties for the period 12.1.10 to 12.2.10 for 8 hours per day, 7 days per week, with restrictions of 20kg lift limit, sitting/standing up to 20 minutes.  Your workplace manager has advised that had you still been employed by Australia Post, suitable duties would have been available to you for your normal weekly hours.

    The available evidence does not indicate that, as a result of any condition suffered due to your employment with Australia Post, you do not have the capacity to undertake suitable employment, and the fact that you no longer work for Australia Post does not alter your capacity to obtain external suitable employment.

    After careful consideration of all the evidence, I am satisfied that you have an ability to work your normal weekly hours, which for the purposes of this claim have been calculated at 27 hours 38 minutes per week, and therefore an ability to earn your “normal weekly earnings” of $657.82.  I therefore determine that as at 8.1.10, your date of separation from Australia Post you have no present entitlement to compensation under s.19 of the Act.

    ·Mr Stephens sought reconsideration, and on 9 March 2010 an Australia Post ‘reconsideration officer’ affirmed the determination which denied liability to incapacity payments under s.19. I have above noted the advice of this which was given to Mr Stephens’ managers, including Mr Crum and Mr Craig (Ex.B). The letter notifying Mr Stephens of this decision contained somewhat unclear references to legislation (Ex.B document 30). It noted Mr Stephens’ medical certificates and said:

    I note your employment was terminated on 8 January 2010.

    But for the termination of your employment on 8 January 2010 your workplace area has advised they would have been able to accommodate your restrictions as they had done so prior to your termination of employment and therefore suitable duties would have been available to you for your normal weekly hours.

    The available medical evidence does not suggest as a result of any condition suffered due to your employment with Australia Post, you do not have the capacity to undertake suitable employment.  The fact you no longer work for Australia Post does not alter your capacity to obtain external suitable employment.

    There is no explanation from Dr Shah or Dr Kudumula as to the sudden regression in your restrictions from the certificates dated 29 December 2009 and 12 January 2010 and the most recent medical certificate dated 12 February 2010.

    Therefore I AFFIRM the determination of 9 February 2010 and find as at the date of your termination from Australia Post being 8 January 2010 you have no present entitlements to incapacity payments pursuant to section 19 of the SRC Act 1988.

    ·On 15 April 2010, Mr Stephens lodged an application for review by the Administrative Appeals Tribunal (Ex.A document 33) in relation to that determination.

    ·Following correspondence from Mr Stephens in relation to his SRCAct entitlements, including a rehabilitation assessment, the acting manager of Australia Post’s NSW rehabilitation section, wrote to him on 4 June 2010 (Ex.A document 39). The letter refers to rehabilitation assessments which are not in evidence, and concluded:

    I am satisfied that in this instance and having reviewed all relevant reports that both your rehabilitation and vocational assessment have been completed satisfactorily and that liaison with all key stake holders has taken place during this process.

    Your request for further rehabilitation intervention and the development of a specific return to work program are noted, however, no further rehabilitation services can be provided due to the termination of your employment with Australia Post.  Please forward any further correspondence regarding your claim to Brenda Evans, Claims Managers, NSW Workers Compensation Section.

    ·A further letter dated 23 June 2010 (Ex.A document 40) confirmed this decision, and asserted that it was not reviewable and “therefore, no further action with respect to this matter is considered necessary”.

    ·By report dated 30 June 2010 prepared for the purposes of the AAT proceedings, an orthopaedic surgeon, Dr Powell, engaged by Australia Post reported in relation to Mr Stephens’ injury (Ex.A document 42).  His opinions included:

    Diagnosis

    Mr Stephens is a 50 year old right hand dominated gentleman who at the time of the workplace incident on 3 December 2009 was employed by Australia Post as a delivery driver.  He sustained a musculo ligamentous injury and aggravation of pre-existing multi level degenerative lumbar disc disease.  Mr Stephens has a long history of previous lower back problems including a lumbar discectomy.

    In response to specific questions raised in your letter;

    1.     .....

    2.….

    3.     Did Mr Stephens follow the expected pathway for recovery for any condition and if not please explain?

    Mr Stephens has followed a fairly predictable path following a recurrent lower back injury.  He remains symptomatic in regards to the lower back.

    4.     …..

    5.     …..

    6.Have the effects of a pre-existing or non work related condition overtaken the effects of any physical condition?

    I believe that his current symptoms represent an aggravation of his pre existing pathology.  That aggravation is ongoing.

    7.Would Mr Stephens have developed the current physical condition if any, as a natural progression of a pre-existing condition?

    I don’t believe that it is possible to say that his current symptoms may have developed as a result of progression of his pre-existing condition.  Mr Stephens reports a specific workplace incident which was sufficient to have resulted in the aggravation alleged.

    8.Does Mr Stephens continue to suffer the effects of the injury and if not when did the effects cease?

    I believe that Mr Stephens continues to suffer symptoms relating to the workplace incident.

    9.If he continues to suffer the effects of the injury, what is the prognosis?

    His overall prognosis is guarded.  He does have evidence of pre existing multi level degenerative change in the lumbar spine.  The natural history is for continued deterioration over time.  His lower back is thus likely to remain symptomatic.

    10.Do you consider the effects of the injury will cease and if so, when will this occur?

    As far as can be determined, Mr Stephens has had little in the way of directive treatment for his lower back.  He did have some injections but has had no physiotherapy, hydrotherapy and is not performing any home exercises.  I am cautiously optimistic that with a well directed conservative treatment programme, his lower back condition will respond and hopefully allow the aggravation to settle.  However, as noted previously Mr Stephens does suffer from a degenerative condition in the lower back and his lower back will remain intermittently symptomatic.

    11.What impairment does Mr Stephens have due only to the injury?

    I do not believe that Mr Stephens has reached a stage of maximal medical improvement.  Further treatment is recommended.  Assessment with regard to permanent impairment should be deferred for at least six months.

    12.Does Mr Stephens continue to suffer incapacity as a result of the injury?

    Based on my examination, I believe that Mr Stephens does remain partially incapacitated as a result of the injuries sustained in the workplace incident?

    13.If he continues to suffer incapacity, how does the injury affect Mr Stephens?

    Mr Stephens has constant lower back and radiating lower limb pain.  This impacts in a significant fashion on his activities of daily living and his ability to work.

    14.Is Mr Stephens currently capable of doing full time or part time work and if so what type of work?

    Based on my examination I do not believe that Mr Stephens is fit to return to his full pre injury duties.  I recommend that he be placed on suitable duties with restrictions that include not lifting in excess of 10kg, avoiding repetitive bending and twisting manoeuvres.  He should alternate his tasks where possible and have regular rest breaks.  I recommend that he commence on reduced hours, for example, four to five hours per day on four to five days per week.  His hours could be increased and restrictions lifted in a graduated fashion under the supervision of his treating doctor.

    Mr Stephens would be fit to perform supervisory duties, office work or light process work.

    15.Is Mr Stephens able to engage in work at the same level at which he was engaged by Australia Post before the injury occurred?

    No, please see above.

    ·By letter dated 7 April 2011, an Australia Post reconsiderations officer in its litigation section, reconsidered all of the earlier determinations, on her own motion. She substituted a determination which denied general liability under s.14 and all other sections of the SRCAct, based on a variety of factual and legal conclusions. It is not necessary, nor appropriate, for me to examine her reasoning, since it is apparent that her determination was taken in the context of the pending AAT proceedings. Mr Stephens has lodged a further application for review in the AAT, which expands the previously raised issues to encompass the new adverse determination. The combined AAT proceedings have not yet come to hearing, and appear to be suspended, pending the outcome of the present matter.

1. In my opinion, the evidence recounted in the above history of Mr Stephens’ compensation claim does not, in itself, allow a positive conclusion, with hindsight, that Mr Stephens’ rights, and Australia Post’s liabilities under the SRCAct as at the date of the decision to terminate him, were probably taken into account in the decision to terminate his employment on 7 February 2010. Evidence of the later adverse determinations which were made, and of their reasoning which adverted to the perceived effects of the termination on Australia Post’s liability to make incapacity payments and to provide restricted duties in suitable employment, needs to be treated with caution before such an inference could be drawn. However, in my opinion, that evidence does illustrate a potential scenario in relation to a compensation claim for a commonplace workplace injury which must, in my opinion, have been in the minds of Mr Brennan and Mr Craig when they were discussing his termination on 7 February 2010, at least as a real possibility. It is enough, in my opinion, to raise a real hypothesis that the decision to terminate Mr Stephens’ employment might have been influenced by a perception at that time by the relevant decision-makers that Australia Post’s future liabilities under the SRCAct might be minimised by terminating his employment for reasons apparently unrelated to his work injury.

2. This hypothesis has been at the heart of the case which Mr Stephens has brought to this Court, and it is necessary to examine the evidence elicited by Australia Post in response, to consider whether it has dispelled that concern by proving on the balance of probabilities that the decision was taken only for the two reasons stated in the termination letter.

The events of 5 January 2010.

1. The two incidents, which were cited in the 7 January 2010 letter notifying Mr Stephens of his termination, occurred on 5 January.  Mr Stephens gave the following account in his affidavit:

   6.On Monday 4 January 2010, I approached Anthony Haddad, PTC 2 and asked him about my claim for worker’s compensation as it had been one month since I was injured and my doctors’ bills were overdue. He insisted I ring the compensation office, which I did, and spoke with Ann Lewis.  Ms Lewis said they had not received any paper work at all, and told me that I would need to speak with Anthony Haddad, who then said that I needed to speak with Jim Crumm.

   7.As advised by Anthony Haddad, I rang Jim Crumm on Tuesday 5 January 2010 while I was ‘doing my run’, and we spoke at length about my compensation claim.  Mr Crumm asked me several questions such as, “Do you need any further treatment?” “Will you need extra time off work?” Jim Crumm then said words to the effect, “As it affects our workload, I need you to tell me your injury won’t come back”. I said words to the effect, “I hope it’s over, but I can’t offer any guarantees”. Mr Crumm explained that he had been too busy to process my claim “due to the strike action”; but he would “take care of it soon”.  As a result of my lengthy telephone conversation with Mr Crumm, I was late for a 4.45pm customer pick up. Then, when I was climbing into the van at the completion of my run, I tore my trousers — the tear was about 12 inches in the crutch. When I returned to the Hub, I told Ashley Zieden, PTC1 and asked if I could go home to change my trousers in order to maintain some decorum, especially as I was working with women.  Mr Zieden replied, “Get to work. You have had enough time off’.  I repeated my request to be allowed to go home and change my trousers, and Mr Zieden then said, “Book off.  You won’t be paid”. I then stated that it was “unfair treatment considering I did it at work and they are my own pants, and it was extremely embarrassing”. So Mr Zieden then telephoned the area manager, Jim Crumm and put me on the phone, angrily pushing the telephone receiver toward my face. Jim Crumm said words to the effect, “It’s fine for you to go and change.  Put Ashley Zieden back on the phone”. As I left the office, I was just outside when I heard Mr Zieden say, “If he’d asked me nicely and was not so rude to me, I would have approved him going home”.  I was shocked when I heard this, and said out loud to myself, “You’re f...ing joking”. I heard Mr Zieden say to Mr Crumm, “There he goes again”.  Mr Zieden then continued his ‘discussion’ with me about what I had said while he was on the telephone to Mr Crumm — I accused Mr Zieden of “lying” to Mr Crumm, and Mr Zieden concluded the discussion by coming ‘right up to my face’, screaming, “Go home, go home, go home”. This whole scene occurred in earshot of other staff members and it was very humiliating.

2. Under cross-examination, Mr Stephens explained that most of his 5 hour shift was involved in driving a mail truck on a ‘very tight run’ involving specific times for pick-ups and deliveries.  He said “the time I spent talking to Mr Crumm made me late for every single run I had to do; every post office all got put behind …I was late for every single pickup, and I was trying to do the best I could to get to every single customer on time”.  He missed one customer pickup, due at Husqvarna at 4.45pm, because “I had to go to a post office at the same time or prior to it, and the post office held precedent over a customer. … because I was late I couldn’t be in two places at the same time, so I chose to go to the post office”.  This evidence was not shaken nor contradicted, and I accept it.

3. I conclude that Mr Stephens was probably in an understandably very tired and anxious state when he returned to his depot.  It is understandable and probable that he started the day upset at the delays in progressing his compensation claim, and that his state of mind became aggravated by his delayed schedule and, finally, by ripping the crutch of his shorts in an embarrassing place.  He then encountered a foreman whom he perceived to be unsympathetic, even hostile.  I consider that it is likely that there was basis for that perception, although his state of mind probably exaggerated Mr Zieden’s behaviour at the time and in his subsequent recollections. 

4. Mr Stephens explained his swearing in cross-examination:  “I said it to myself, under my breath, while I was hearing him lie on the phone, ‘You’re fucking joking’. He said, ‘there he goes again’”.  He said: “The lie was he said ‘had he asked me nicely I would have let him go home’, but I had asked him nicely.”  He gave the following summary of the incident, which I found credible, and accept:

   Counsel:All right.  And you say that after repeating your request to go home, Mr Zieden stated “Book off.  You won’t be paid”….

   Mr Stephens:         He said that I could book off and I wouldn’t be paid.  That’s right.

   Counsel:Well, that is untrue also, isn’t it?

   Mr Stephens:         Sorry?

   Counsel:That is untrue also?

   Mr Stephens:         No, it’s true.  That’s why he rang Mr Crum because I said “you can’t book me off”.  He put the phone to me from Mr Crum, thrust it in my face.  He dialled Mr Crum, put the phone, thrust it in my face and he said “you speak to him” and I said to Jim Crum, “Could I go home?  I’ve torn my pants.”  He said, “Yes, What is the problem with that?”  I said “Ashley said I can’t go home, he will book me off.”  He said “Put Ashley back on the phone.”  Ashley grabbed the phone, walked to where you are, and then he said, “If he would have asked me nicely I would have let him go home, but he was swearing at me.”  And then – and that’s when I responded, “Fuck off, you’re joking”.  And he goes “There he goes again.”  Because I hadn’t sworn up until that point.

5. As to subsequent events, in his affidavit, he said:

   8.On completion of my run on Wednesday 6 January 2010, I was called into the office by Tony Brennan who had spent the afternoon with Ashley Zieden, and asked to explain why I had sworn whilst Ashley Zieden was on the phone and Jim Crumm had heard it.  I explained that I had sworn because I was shocked by what I had heard Ashley Zieden say to Mr Crumm and that it was wrong for Mr Zieden to lie to Mr Crumm about me.  Tony Brennan said, words to the effect, “I believe Ashley’s version not yours.  You are not wanted by Australia Post because of your behaviour”.  I stated, “Ever since I was injured, I have received nothing but harassing comments and discriminatory treatment by Australia Post management and supervisors”. Tony Brennan said, “That is not true. You are now 50 years old with a back injury and it will cost Australia Post in the long run, so pull your head in, you are lucky to have a job here”.  I then left the office while Tony Brennan spoke privately with Ashley Zieden.  Tony Brennan then called me back into the office and asked, “Why did you miss a pick up yesterday as well?” I said, “Because I was running late due to having to talk to Jim Crumm about my compensation and then I was delayed by another ‘pick-up’, so they were closed when I got there”. Tony Brennan said, “Ashley told me the pick-up was at 2.3Opm”. I said, “Ashley is lying again. The pick-up is at 4.45pm on the run sheet and I was there at 5.O5pm”. Tony Brennan said, “Your explanation’s OK.  Go back to work”.

   9.On Thursday 7 January 2010, I commenced as normal at 2pm.  At about 6pm, I was approached by Ashley Zieden, who said words to the effect, “Tony Brennan is here again and wants to see you in the office”.  I went into the office.  Tony Brennan said words to the effect, “I have a letter stating your fixed term contract is now terminated due to missing the pick up two days before and swearing while Ashley was on the phone” (a copy of the notification of the termination of my employment is attached to my Claim Form). I said, “I have never ever missed a run and have never been in trouble or given anything in writing or counselled”. Tony Brennan said, “Under your contract you can be sacked under section 10 and that is my decision alone”. I was very distressed, and I said, “Can I say goodbye to my work mates?” Tony Brennan said. “Definitely not. And if you don’t leave in the next 5 seconds, I will ring the police”. I said, “That’s a bit heavy.  I am a law abiding citizen.  I am going to say goodbye to friends I made over the last 8 months, and then I’ll leave”.  Tony Brennan and Ashley Zieden ‘escorted’ me around the premises whilst I said goodbye to my work mates, and then into the car park until I drove away.

6. Mr Stephens’ evidence was credible, and consistent with much of Mr Crum’s evidence.  In his affidavit, Mr Crum said:

   Phone conversation with Mr Stephens 5 January 2010

   8. On 5 January 2010 at around 2pm Larry Stephens rang me and asked me “Where is my compensation claim up to as it has been a while”. I said “ I understand it has been a while and I need to talk to Compensation Section but it has been a busy time due to Christmas and strike action and your claim is not approved or disapproved and will be completed soon”. Larry Stephens said “I am fine with that”.

   9. I then asked him, “Are you expecting any further time off work as we would need to cover your shift for our operations”. He said “I am not having any more time off work. I am having a cortisone injection in my shoulder which should fix everything and I have been through the pain barrier”. I said to him “I

   
   

   played football and injured my shoulder and I had a similar injection in my shoulder and I am surprised they are giving you this injection so early as it is usually a last resort”. The length of my telephone call with him was approximately 10 minutes.

   
   
   

   Swearing at his supervisor Mr Ziedin

   10. On 6 January 2010, I received a phone call from Ashley Ziedin at around 630pm. Ashley Ziedin said to rue “Larry Stephens has torn his pants. How should I treat his clockings?” I then asked to speak to Larry who took the phone and said to me “I have ripped my pants and I need to go home to change them”. I then said to Ashley Ziedin “Tell Larry Stephens that he can go home and we will adjust his clockings”.

   11. I then heard Ashley Ziedin say “You didn’t show me that hole.” I also heard Larry Stephens yelling “Have a look at these pants, this is a rip” in the background. As Ashley Ziedin was discussing this matter with me on the phone I heard Mr Stephens say loudly “Aw, fuck off”.

   12. I then reported this matter to Tony Brennan who was the A/Hub Operations Manager

7. In cross-examination, Mr Crum responded to every question in a very terse and measured manner, frequently retreating into a lack of recollection, even in relation to some statements which were in his affidavits.  I do not consider that he consciously gave any incorrect evidence, but I was left in doubt whether he gave fully accurate and complete recollections about his significant telephone conversations with Messrs Stephens, Zieden and Brennan.  There is no evidence that he made any written record of those conversations before making his affidavit in November 2010. 

8. In relation to his conversations with Mr Brennan, Mr Crum recalled only one conversation, in which he made a complaint of having overheard Mr Stephens swearing at Mr Zieden.  He had difficulty identifying the time of this conversation, as did Mr Brennan.  His best evidence was “It would have been after I hung up from Mr Zieden”, and that it was “possible” that this was after working hours that evening.  Mr Brennan’s evidence was that it occurred the following morning.  Mr Crum appeared keen to distance himself from the decision to terminate Mr Stephens’ employment, and denied making any recommendation to Mr Brennan.  In effect, his evidence was that he only relayed to Mr Brennan Mr Stephens’ swear words he heard over the telephone, and had no further discussions with Mr Brennan about Mr Stephens, and no further involvement in, or even awareness of, the investigation of the complaints and decision-making leading to Mr Brennan’s decision to terminate Mr Stephens’ employment. This appears to me improbable, since he was Mr Stephens’ senior supervisor in relation to the Gosford Hub, and in a manifestly superior position to Mr Brennan to advise on the workplace implications of terminating his employment summarily.  Moreover, his evidence is partly contradicted by Mr Brennan’s recollection of a conversation with Mr Crum on the morning of 7 January, before making the decision, in which Mr Crum confirmed Mr Stephens’ explanation for his missed Husqvarna pickup and referred to Mr Stephens’ compensation claim.  I am left with a firm opinion that Mr Crum’s relevant evidence was significantly incomplete, and for that reason is unreliable in relation to his involvement in the decision-making which led to Mr Stephens’ termination.

9. I also had difficulty accepting the completeness and reliability of Mr Zieden’s evidence, and I found his account of the swearing incident unpersuasive and unsatisfactory in several respects.  Mr Zieden’s affidavit gave an incorrect picture of the swearing incident. It said:

   8.  I then advised Larry Stephens that he can go home and he said to me “You’re fucking discriminating against me”, he then told me to “Get fucked” and said “I’ll find out where you live”.  I then said to him in a calm voice “Go home and you will be paid”, he then left the premises.

10. Under cross-examination, Mr Zieden agreed that he was aware that Mr Stephens had been on light duties for a work injury.  He agreed that Mr Stephens had returned from his run ‘a bit after 6 pm’ on 5 January 2010, and asked if he could go home because his shorts were ripped.  He said “I had said to him I would just go call Jim to figure out whether to pay him or not, how to pay him.  Going home wasn’t the problem”.  He said he phoned Mr Crum, and passed the phone to Mr Stephens, before himself being told by Mr Crum “Tell him he can go home; he will get paid”.  He said he then advised Mr Crum that Mr Stephens “was swearing at me and saying I was discriminating against him”.  He said “he was abusive throughout the whole period”.  He said “I was trying to be calm … there was no reason for him to be like that.”  He said he felt no anger, and spoke to Mr Stephens in a calm voice at all times.  He denied most aspects of Mr Stephens’ account of the incident.

11. Mr Zieden’s recollections of events the following day in relation to Mr Brennan’s investigation of Mr Crum’s complaint were most imperfect.  He, too, made no contemporaneous record of the incident and of his complaints to Mr Crum and Mr Brennan.  He was unsure what communications he had with Mr Brennan, in particular whether he sent him an email about Mr Stephens’ conduct on 5 January – which was suggested by Mr Brennan but which was not produced to the Court.  His demeanour was difficult to assess, but I found unconvincing his efforts to disclaim any provocation for Mr Stephens’ swearing which was overheard by Mr Crum.  I consider that his assertion of continuous abusiveness by Mr Stephens was a recent embellishment, since there is no evidence that he made any such complaint at the time.  I consider unlikely to be true, the picture of calm and totally unprovocative behaviour on his part, which he sought to project.

12. On balance, I found Mr Stephens’ evidence as to the background to the two charges cited in the letter of termination to be generally more reliable and more credible than that of the witnesses called by Australia Post.  I generally prefer his evidence where it is in conflict. 

13. I consider it probable that Mr Stephens’ conversation with Mr Crum was longer than 10 minutes, since it is my impression that Mr Crum generally speaks in a slow and measured manner, and that probably he took pains in the conversation to reassure Mr Stephens that his workers compensation claim had been or would be forwarded to the compensation section.  I consider he also had a general discussion with Mr Stephens about his work injury and his current back difficulties and treatments, both to show sympathy for an injured employee under his supervision, and also to assess from the perspective of Australia Post, and of his responsibilities as manager of the Gosford Hub in particular, the likely or possible future implications for Australia Post in relation to providing restricted duties.  As I have found above, I consider that he probably later discussed the existence of Mr Stephens’ on-going back disability and its compensation implications with Mr Brennan and possibly other persons within Australia Post. 

14. Mr Brennan conceded that he was aware of Mr Stephens’ explanation for the missed Husqvarna pick-up and that it was corroborated by Mr Crum, at the time when he decided to terminate Mr Stephens’ employment and adopted the letter citing this incident as one of the two reasons.  In the circumstances of the missed pick-up, which were largely uncontested, the evidence overwhelmingly suggests that Mr Stephens had an excellent excuse for his first such omission, and that this should have been obvious to Mr Crum and to Mr Brennan.  Indeed, Mr Brennan told Mr Stephens that it was ‘OK’.  It therefore becomes very difficult to understand why it called for any substantial disciplinary response from Australia Post’s managers, particularly that of summary dismissal.  It is not necessary for me to decide whether the response was fair or reasonable, but my assessment of the incident assists my discovery of whether it provided a true reason for the termination, or only a substitute for unstated reasons.

15. A similar concern arises from my assessment of the swearing incident.  On Mr Crum’s evidence, the only complaint of inappropriate language which was acted upon by Mr Brennan was Mr Stephens saying “aw fuck off” to Mr Zieden in response to something said to him by Mr Zieden, which Mr Crum overheard on the telephone.  I accept that Mr Crum had grounds for concern that inappropriate language had been used by a subordinate to a sub-foreman, and that some investigation as to the content and background to their dispute, partly overheard by Mr Crum, would have been warranted.  However, a dispassionate investigation would have elicited Mr Stephens’ explanations encompassing both his upset state of mind at the end of a difficult shift, and his perceptions of provocative behaviour by Mr Zieden.  On the evidence before me these explanations were explained to Mr Brennan by Mr Stephens, when he attended the Gosford Hub on 6 January 2010 to conduct such an investigation.  According to Mr Brennan’s evidence, he did not consider whether the explanations were true, but decided that it was enough for him to note that Mr Stephens had admitted the words reported by Mr Crum.  The gist of Mr Brennan’s evidence as to his investigation of the incident, is that since the words were admitted it was unnecessary to consider the explanation and draw conclusions as to their background.  If this is true, then Mr Brennan’s own evidence leaves unsatisfied a concern that summary termination might prima facie appear to be a disproportionate disciplinary response, and that some other unstated reasons might also have had an influence on Mr Brennan.

1. The only contemporaneous evidence is the letter of termination itself, and this need to be treated with caution.  In its own terms it refers to the two incidents only as a purported justification for the decision, and does not purport to deny that other considerations were present and had been given material weight before the decision was made.  Other considerations appear manifestly relevant to such a serious decision, including consideration of Mr Stephens’ explanations and excuses, and his general work history and contribution, and also workplace considerations in relation to the effects of the summary dismissal on productivity and the operations of the Gosford Hub.  As I have suggested above, considerations in relation to the Employer’s potential financial liabilities in relation to the employee’s continuing employment, particularly in relation to the pending compensation claim, also appear as potentially relevant considerations which could have had a material effect on the decision. 

2. The evidence presented by Australia Post omitted any explanations as to how these various considerations were identified and assessed, and were then either given weight or excluded in the final decision. It did not call Mr Craig, whose advice must have been influential on Mr Brennan’s decision, nor provide any evidence as to what that advice was, nor explain its relevant general policies and practices relevant to decisions of this type. I am far from satisfied on the evidence before me that considerations of Australia Post’s potential liabilities and possible future decision-making under the SRCAct, in particular, in relation to its potential obligations to provide restricted duties to an injured employee, were entirely segregated from the present decision-making. The evidence leaves me not satisfied that I am able to reach any conclusion on the balance of probabilities as to what were all the true reasons for terminating Mr Stephens’ employment in such a summary manner and in the circumstances shown in the evidence.

3. Australia Post has failed to establish that the real reasons for Mr Stephens’ dismissal were “dissociated from the circumstances” of Mr Stephens’ rights under the SRCAct, in particular, by excluding on the balance of probabilities the possibility of a material influence on the relevant advisors and decision-maker of the potential additional liabilities and management responsibilities which would have accrued in relation to Mr Stephens’ ‘workplace rights’ under the SRCAct if his employment had not been summarily terminated on 7 January 2010. I therefore am satisfied that a contravention of s.340(1) of the Fair Work Act occurred in relation to that action.

A contravention of s.351 should also be found

1. Section 351 provides:

   351Discrimination

   (1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

   Note:  This subsection is a civil remedy provision (see Part 4‑1).

   (2)However, subsection (1) does not apply to action that is:

   (a)not unlawful under any anti‑discrimination law in force in the place where the action is taken; or

   (b)taken because of the inherent requirements of the particular position concerned; or

   (c)if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

   (i)     in good faith; and

   (ii)     to avoid injury to the religious susceptibilities of adherents of that religion or creed.

   (3)Each of the following is an anti‑discrimination law:

   (aa)the Age Discrimination Act 2004;

   (ab)the Disability Discrimination Act 1992;

   (ac)the Racial Discrimination Act 1975;

   (ad)the Sex Discrimination Act 1984;

   (a)the Anti‑Discrimination Act 1977 of New South Wales;

   (b)the Equal Opportunity Act 1995 of Victoria;

   (c)the Anti‑Discrimination Act 1991 of Queensland;

   (d)the Equal Opportunity Act 1984 of Western Australia;

   (e)the Equal Opportunity Act 1984 of South Australia;

   (f)the Anti‑Discrimination Act 1998 of Tasmania;

   (g)the Discrimination Act 1991 of the Australian Capital Territory;

   (h)the Anti‑Discrimination Act of the Northern Territory.

2. It is important to note the relevance to s.351 of observations in Barclay, which limited the confining effects under some discrimination laws of the High Court’s reasoning in Purvis (supra). As they observed, the categories of ‘adverse action’ defined in s.342 only raise a test of discriminatory treatment by comparison with other employees, where that action alone is alleged as the adverse action.  They noted:

   35. The central question in Purvis was whether a disabled child whose disability caused him to behave violently at school had been discriminated against, in contravention of s 5(1) of the Disability Discrimination Act 1992 (Cth), by being excluded from the school. The High Court held that the relevant comparison, for the purposes of determining whether such a contravention had occurred, was between the child concerned and another child without the disability, but who had behaved in a similarly violent way. See Gleeson CJ at [12], Gummow, Hayne and Heydon JJ at [221]-[225] and Callinan J at [273]. With the exception of para (d) of item 1 of the table in s 342, which extends the concept of adverse action by an employer against an employee to discrimination between that employee and other employees of the employer, the provisions of Divs 3 and 4 of Pt 3-1 of the Fair Work Act do not require that any comparison be undertaken between the treatment of the employee in question and any other employee or employees, actual or notional, who acted in the same way as the employee in question. The provisions focus on the protection of the person who has a particular attribute, or engages in particular activity, without regard to how others might be treated if they did not have the benefit of the protection afforded by the provisions. It is not to the point to say that any other employee who acted in the same way would have been subject to the same discipline.

   36. In applying the provisions of ss 341 and 346 of the Fair Work Act, except when the adverse action alleged is confined to discrimination when compared with other employees of the employer, a comparative test of the kind dealt with by the High Court in Purvis is not appropriate.

3. These observations have particular pertinence to the application of s.351(1), since they point out that the section does not raise any comparison test, except where the ‘adverse action’ which is alleged to have occurred for the purposes of s.351(1) was adverse action defined under s.342(1) item 1(d). Where the adverse action is alleged, for example, to have been ‘dismisses the employee’ within item 1(a), a contravention is established by showing the proscribed reason for the particular action, without any added test of comparison with employees not having the relevant attribute. Even if that adverse action was non-discriminatory by comparison with other employees, the employer can only escape contravention of s.351(1) by establishing one of the special defences under s.342(2).

4. In relation to the concept of ‘disability’ in s.351(1), Cameron FM recently observed in Hodkinson v The Commonwealth [2011] FMCA 171:

   145. Disability is defined in s.4 of the Disability Discrimination Act in the terms quoted above at [15]. That definition appears to reflect the particular objects of the Disability Discrimination Act. By contrast, nothing about the way the word “disability” is used in s.351(1) suggests that it should be understood other than according to its ordinary meaning or that it should have the extended meaning which it is given in the Disability Discrimination Act. To the extent that the Disability Discrimination Act defines “disability” in terms consonant with the ordinary meaning of that word, it can assist in its interpretation where it appears in s.351(1). However, it is by reference to that ordinary meaning that it should be understood. In that regard, the Macquarie Dictionary (5th ed.) relevantly defines “disability” as:

   1. lack of competent power, strength, or physical or mental ability; incapacity.

   2. a particular physical or mental weakness or incapacity.

   Further, the Shorter Oxford English Dictionary (6th ed.) relevantly defines “disability” as:

   3. An instance of lacking ability; now spec. a physical or mental condition (usu. permanent) that limits a person’s movements, activities, or senses.

   146. Where it is used in s.351(1), I conclude that the word “disability” should be understood to refer to a particular physical or mental weakness or incapacity and to include a condition which limits a person’s movements, activities or senses. Examples can be found in the definition of disability in the Disability Discrimination Act. Importantly, however, while physical or mental limitations may be a disability or an aspect of a disability, their practical consequences, such as absence from work, are not. This distinction is significant when a party is required to identify the disability said to be the reason of adverse action alleged to have been taken against them.

5. I respectfully agree that, in the absence of any statutory definition, the word should be construed by reference to its ordinary meaning.  However, that meaning is to be considered in the context of the statutory objects of the provision, which is to proscribe adverse action when taken because the employee has one of a variety of personal attributes which are specified in the section.  The section operates in a real world, where an employer might otherwise be tempted to take adverse action by reason of one of these attributes, motivated by a variety of considerations including irrational prejudices or a rational belief that the employer’s business would benefit materially by removing a person with that attribute from its workforce.  The underlying motive for the proscribed action is irrelevant to the existence of the contravention – all that is needed is the requisite ‘reason’ in the sense explained in Barclay (supra).

6. Where it is intended that a ‘physical or mental disability’ may be one of these attributes, it would not, in my opinion, be a proper construction of the words to limit them in an overly refined way to the underlying diagnosed medical or physiological or psychological condition.  Some of the inherent consequences of the underlying condition on the personal capacities of the disabled person, including some of the inherent consequences of the medical condition bearing on the employee’s presentation as a person and his or her work performance must be intended to be part of the employee’s ‘disability’.  So much, in my opinion, would be consistent with the dictionary definitions’ references to ‘incapacity’ and ‘that limits a person’s movements, activities, or senses’. 

7. A statutory intention to include some functional and other practical consequences of an underlying condition within the concept of ‘disability’ is also implicit in the ‘defences’ given to employers under s.351(2). These allow employers to excuse adverse action by reason of a disability in a variety of specially defined circumstances, where it can be shown that functional or practical effects of a disability are incompatible with the employment of the disabled person. Absent such defences, s.351 expects an employer to accept and accommodate the manifestation of the disability and the effects of the disability on the employee’s work capacities. I therefore do not consider that Cameron FM intended to suggest that all ‘practical consequences’ are not to be regarded as part of an employee’s ‘disability’ for the purposes of s.351.

8. Exactly what practical consequences or functional effects of a diagnosed condition are to be regarded as inherently part of a ‘disability’, is best left to the consideration of particular circumstances. I accept that a line may need to be drawn between a disability covered by s.351(1) and some effects of a disability which are not to be regarded as attributes of the disability itself, but this line is not easily drawn by a general verbal formula.

9. The difficulties in this respect can be illustrated in relation to the diversity of meanings which different statutory contexts can give to the word ‘incapacity’ in relation to a medical condition.  For example, veterans’ pensions have long provided three different rates of pension based on different concepts of ‘incapacity’ which call into consideration different consequences of the underlying medical condition (cf. Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 49). The present context is different again, being aimed at regulating the circumstances in which an employer can lawfully take the variety of adverse actions in relation to an employee’s employment which are listed in s.342. In my opinion, in this context it is possible to conclude only that the word ‘disability’ appears to encompass both the medical or scientific diagnosis of an underlying condition capable of resulting in ‘disability’, and also its inherent and perceived functional impairments or consequences in relation to presentation or work in a workplace, which are the manifestation of the underlying condition.

10. In the present case, these distinctions may not have much relevance.  The underlying medical condition incurred by Mr Stephens and its impairments on his presentation and functional capacity to work in his employment may not give rise to any relevant distinction, nor may they need to be separately addressed as potential considerations in the mind of his employer contemplating his termination.

11. Counsel for Australia Post submitted that Mr Stephens had not established any condition which could be characterised as a ‘disability’ with sufficient particularity. I accept that Mr Stephens has the onus of proof of this threshold element in s.351, but I do not accept that he failed to meet it. In my opinion, the ‘disability’ which he asserted was clear and well known to Australia Post, and there was ample evidence to prove its existence when the decision-making on Mr Stephens’ termination occurred.

12. I have already identified the evidence concerning Mr Stephens’ work injury, its medical diagnosis and treatment, and its effects on his attendances and ability to work. Medical certificates presented to Australia Post at around the time of the claim for compensation, certified the opinion of a qualified medical practitioner that Mr Stephens was suffering from a “lumbar strain injury” (certificate of 7 December 2009) and a “lumbar spine injury” (certificate of 11 December 2009), giving rise to a period of total unfitness for duties and then, from 18 December 2009, fitness for suitable duties with specified work restrictions. Further similar certificates covered, continuously, the subsequent period including the date of Mr Stephens’ termination. There is no evidence that these diagnoses were ever regarded by Australia Post as deficient or meaningless, and, indeed, it accepted them as sufficient to pay an award of s.19 compensation for the periods off work. On the later evidence which is now before the Court, the condition certified in December 2009 can readily be identified with the condition diagnosed by Dr Powell in June 2010 of “musculo ligamentous injury and aggravation of pre-existing multi level degenerative lumbar disc disease”.  This was Dr Powell’s opinion, which is not contradicted by any other expert opinion in the evidence before me.

13. I find that at all relevant times Mr Stephens was suffering from a work-related lumbar spine injury, and that the underlying pathological causes of this condition, together with its symptoms and functional impairments, including any resultant functional incapacities for work, constituted a ‘physical or mental disability’ for the purposes of s.351(1) of the Act.

14. The onus therefore fell on Australia Post to prove that the real reasons for Mr Stephens’ dismissal on 7 January 2011 were ‘disassociated from’ the circumstance that he had that disability.  In my opinion, it has failed to do so, for the same reasons that I was unpersuaded that Australia Post has established that Mr Stephens’ workplace rights in relation to his injury played no part in actuating his dismissal.  As I have explained above, the existence of the disability, including its past, current, and potentially future impairments, was known to the relevant decision-maker and his advisors.  For the reasons given above, I am not persuaded by Mr Brennan’s denial that the workplace injury and its resultant disability did not provide a reason for the dismissal.

15. Australia Post did not invoke any of the defences provided under s.351(2).

16. I therefore find that Australia Post has also contravened s.351(1) of the Fair Work Act.

A contravention of s.352 should not be found

1. Section 352 provides:

   352Temporary absence—illness or injury

   An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

   Note:  This section is a civil remedy provision (see Part 4‑1).

2. A prescribed ‘illness or injury’ must satisfy one of the categories found in reg.3.01 of the Fair Work Regulations. In this respect, Australia Post has conceded that Mr Stephens’ absences from 7 to 11 December 2009, and on 17 and 24 December 2009, were absences for illness or injury falling within reg.3.01(2):

   (2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:

   (a) 24 hours after the commencement of the absence; or

   (b) such longer period as is reasonable in the circumstances.

3. It is therefore not in issue that all ‘threshold’ elements of s. 352 have been established, and it is not necessary to explore interesting questions whether the onus of proof in relation to the reason for the absence and satisfaction of reg.3.01 falls on the applicant, or on the employer to disprove under s.361.

4. My above findings have left me generally unsatisfied as to the real reasons for dismissing Mr Stephens, and unpersuaded by Mr Brennan’s denial that Mr Stephens’ disability and pending workers compensation claim played a part. However, the onus of proof under s.361 can also be met by an employer showing that the contended reason more probably than not would not have played a part, based upon reference to the generally established circumstances of the dismissal.

5. In the present case, I have arrived at that satisfaction in relation to Mr Stephens’ absences on 7 days in December 2009. Although it is possible that Mr Brennan and his advisors on 7 January 2010 had knowledge that Mr Stephens’ compensation claim included claims for s.19 payments for these absences on the particular days, on balance, this appears not probable. There is no immediate temporal or circumstantial nexus between the absences and the termination decision. Moreover, the dismissal had no consequences in relation to Australia Post’s liabilities under the SRCAct in relation to those past absences, and they have no easily conceivable materiality, in themselves, to the decision whether to terminate Mr Stephens’ employment on 7 January 2010.

6. I therefore find that Australia Post has not contravened s.352.

Reinstatement is an appropriate remedy

1. Section 545(1) gives the Court a discretionary power expressed in the broadest terms to “make any order the court considers appropriate if the court is satisfied that a person has contravened … a civil remedy provision.”  I am so satisfied, in relation to contraventions constituted by Australia Post’s unlawful dismissal of Mr Stephens from its employment.

1. Section 545(2) provides:

   (2)Without limiting subsection (1), orders the Federal Court or Federal Magistrates Court may make include the following:

   (a)….

   (b)….

   (c)an order for reinstatement of a person.

2. The meaning and ambit of that power is not defined or confined.  However, s.12 contains a definition:

   reinstatement includes appointment by an associated entity in the circumstances provided for in an order to which subsection 391(1A) applies.

3. Clearly this is an extending, and not a confining, provision in relation to the power to order reinstatement under s.545(2)(c). Nor does it necessarily impose qualifications on that power which might appear in the language of s.391, which is the power of reinstatement given to Fair Work Australia after a finding by it of unfair dismissal. However, it is appropriate to consider FWA’s power. Section 391 provides:

   391Remedy—reinstatement etc.

   Reinstatement

   (1)An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

   (a)reappointing the person to the position in which the person was employed immediately before the dismissal; or

   (b)appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

   (1A)If:

   (a)the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

   (b)that position, or an equivalent position, is a position with an associated entity of the employer;

   the order under subsection (1) may be an order to the associated entity to:

   (c)appoint the person to the position in which the person was employed immediately before the dismissal; or

   (d)appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

   Order to maintain continuity

   (2)If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

   (a)the continuity of the person’s employment;

   (b)the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

   Order to restore lost pay

   (3)If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

   (4)In determining an amount for the purposes of an order under subsection (3), FWA must take into account:

   (a)the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

   (b)the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

4. The High Court considered the ambit of a power in similar terms given to the Industrial Relations Commission by s.170CH(3) of the Workplace Relations Act 1996 (Cth) in Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539. Both counsel cited the judgments in that case as applicable to the present case, without adverting to the unqualified terms of the Court’s powers under s.545(2)(c). I am content to assume that this is appropriate.

5. The High Court referred to the history of statutory reinstatement powers generally, emphasising the practical intent of that remedy when given to an industrial tribunal or court.  McHugh J said:

   14.    To construe the power "to reinstate" as confined to restoring contractual or other legal rights fails to give full effect to the term "reinstate". To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination. The Full Court of the Federal Court erred in the present case by holding that "the emphasis on appointing the employee to a 'position' demonstrates that it is the contractual position which is either to be restored in its earlier terms or in equivalent terms.”

   15. Accordingly, the Commission may make orders under s 170CH(3) for the purpose of reinstating the situation that existed immediately before the employer terminated the employment or, where that cannot be achieved, by putting the employee in a close substitute for that situation.

6. Kirby J said:

   33.    By the Act, and the order, reinstatement of the appellant was meant to be real and practical, not illusory and theoretical. In effect, if the respondent's argument were correct, it would permit the respondent to thumb its nose at the heart and core of the order made, namely that the appellant be "reinstated", that is, according to the word's derivation and ordinary meaning, "put back in place" in his former employment. The Act does not grant the employer the unilateral power to buy its way out of the obligations imposed on it under a valid law of the Parliament. The employer is bound to comply with the order and the Act. Its failure to do so produces statutory consequences to which, by his orders, Madgwick J sought to give effect.

   Form of the orders to be made

   34.    I agree with Callinan and Heydon JJ that Moore J in the Full Court of the Federal Court gave the correct analysis of what might happen in the future if the appellant were unable, or unwilling, to perform the work of his former position as a boner in the chilled boning room (or such other work as was later assigned to him). The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante. It is not to anticipate every eventuality that might thereafter arise; nor is it to provide the employee the subject of it with employment for life. What happens in the future, and what follows from what happens, depends on all the circumstances then obtaining.

7. Hayne J said:

   46.    It was not submitted that the primary judge should not have gone beyond finding contravention and imposing penalties to make orders, under s 170JC(3), in the form of mandatory injunctions requiring reinstatement. Because the respondent did not reinstate the appellant in accordance with the Commission's order, it is unnecessary to consider whether, or in what circumstances, it would be open to an employer who had re-engaged an employee, then, by resorting to some provision of the applicable industrial instrument, to seek to transfer that employee to other duties. Such a case may present difficult questions of fact and degree about whether what was done contravened the order for reinstatement. Such difficulties suggest that the cases in which it may be appropriate to make mandatory orders regulating the future conduct of relations between an employer and employee (as the primary judge did here by directing the respondent to furnish the appellant with his usual work for a period of 14 days) may be rare. There being no challenge to this particular aspect of the primary judge's order, it is unnecessary to consider it further.

8. Callinan and Heydon JJ said:

   75. All of the language of the relevant section must be given meaning. The use in s 170CH(3) of the word "reinstate" is significant. Section 170CH(3)(a) and (b) describe the way in which the reinstatement may be effected. "Reinstate" literally means to put back in place. To pay the appellant but not to put him back in his usual situation in the workplace would not be to reinstate him. The words "reappoint" and "position" should not be read in any restricted way. They are intended to apply to a very wide range of workplaces and certainly not to a particular officer or officers. It was therefore within the power of the Commission to make such an order as would contemplate or require that the employer provide a reappointed or reinstated worker with actual work to do.

9. As is apparent from these passages, the factual situation in Blackadder has differences from the circumstances in which the reinstatement of Mr Stephens is to be considered. It is also apparent that some of the justices approached the matter upon issues arising from language in s.170CH(3) of the Workplace Relations Act and s.391 of the Fair Work Act, which does not appear in the unconfined judicial powers given under s.545(1) and (2)(c). However, in my opinion, it is equally appropriate to approach the exercise of those powers as a remedy which is in practical effect intended to put the employee back in an employment situation which he lost by reason of an unlawful action. That is, in the immediately foreseeable future period after the making of the order.

10. I accept the submissions of Mr Stephens’ counsel that such a remedy is the obviously appropriate remedy in the circumstances of the present contraventions, notwithstanding that there are some uncertainties as to how it will be implemented by Australia Post, and as to the extent of the benefits which the order will bring to Mr Stephens. I have above examined whether, if he had not been dismissed, what would have been the likely future of his employment. I concluded that it was probable that he would have been given a further term of employment in the same duties as his previous employment, and that he would have received appropriate consideration in any opportunities for further and permanent employment. I also concluded that Australia Post probably would have considered, and may have been obliged to consider, his further employment in the light of its obligations under the SRCAct to provide rehabilitation and restricted duties. This appears to have been accepted by Australia Post until the matter reached the AAT, and I am not persuaded that the position currently adopted by Australia Post in that litigation is correct, nor that it would be upheld by the AAT if Mr Stephens’ employment were reinstated.

11. I do not accept the submission of counsel for Australia Post that my powers are confined, or should be confined as a matter of discretion, to reinstatement for a period of only 9 working days, being the period remaining at the time of dismissal under Mr Stephens’ then current term contract. As I have found, in my opinion, it is probable that Mr Stephens would have been given further employment, including with consideration of any rehabilitation requirements in relation to his work injury. I consider that the powers under s.545 can, and should, be exercised to acknowledge that reality.

12. I also do not accept the submission of counsel for Australia Post that it would be futile to order Mr Stephens’ reinstatement, because he has lost the capacity to work.  It is true that Dr Powell’s report points to a deterioration in Mr Stephens disability since his termination, and that Mr Stephens has been unable to find any other employment, and feels that his work history of injury at Australia Post has hampered his efforts to find work with another employer.  It may well be the case that his return to work will now need careful attention from a sympathetic employer.  However, there is no evidence elicited by Australia Post in the present case which persuades me that reinstatement would be unachievable by it, particularly into employment where the employer has the facilities and perhaps the obligation to provide an appropriate return-to-work programme.

Conclusion

1. For the above reasons, I am satisfied that Australia Post has contravened sections 340(1) and 351(1) of the Fair Work Act. I consider it appropriate to make a declaration to that effect at this stage of the proceedings. It will then be necessary to appoint a further hearing to consider what, if any, pecuniary penalties should be imposed and to whom they should be paid. The consideration of penalties will include addressing whether the two contraventions were, in effect, the same course of conduct, so as to attract only one penalty. Australia Post’s response to my findings and reinstatement order may also have a bearing on penalty.

2. I am satisfied that I should at this stage make an order for reinstatement of Mr Stephens. I propose to make that order without conditions and specifications, in the hope that the parties can agree upon the details of an appropriate reinstatement and return to work program, in accordance with my judgment and without delay. I accept that it may involve difficult issues as to the terms of the reinstated employment, and the extent to which it will involve restricted duties in a return-to-work program. I would hope that any such difficulties could be resolved by the parties, if necessary, through mediation or other processes available in the course of the pending AAT proceedings. I am also willing to refer the parties to conciliation or mediation on these issues under s.26 of the Federal Magistrates Act 1999 (Cth) and Part 27 of the Federal Magistrates Court Rules 2001 (Cth), should they seek such a reference. Such a reference can also be made to Fair Work Australia, which has a wealth of experience in this area. I shall reserve liberty to apply for further orders in these respects.

3. I note that proceedings of the present type normally carry no costs awards, and I would expect that any application for a costs award would be made at the next hearing, supported by any evidence necessary to establish the application of s.570(2) of the Fair Work Act.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  8 July 2011