Stuart Bormann v Visy Board Pty Ltd
[2011] FWA 1569
•11 MARCH 2011
|
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stuart Bormann
v
Visy Board Pty Ltd
(U2010/12421)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 11 MARCH 2011 |
Termination of employment - valid reason - employee unable to work - reinstatement.
[1] On 15 September 2010 Mr Bormann lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) through which he sought relief with respect to the termination of his employment with Visy Board Pty Ltd (Visy Board).
[2] The application was referred to me for arbitration in January 2011. This arbitration was deferred pending determination of an extension of time issue. I published a decision ([2011] FWA 587) on 28 January 2011 and extended the time for lodgement of the application.
[3] The application then proceeded to arbitration on 2 February 2011. At this hearing Mr Hardie of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) represented Mr Bormann. Mr Colgrave of counsel represented Visy Board. Subsequent to this hearing, both parties have utilised the opportunity to provide written submissions.
Background
[4] Whilst the circumstances of the application and the remedy sought are unusual, there is little dispute over the background to the matter.
[5] Mr Bormann worked for Visy Board from July 1989 until 30 August 2010. He worked in various machine operator positions. Over this time he had approximately 10 workers compensation injuries with subsequent compensation claims and, in October 2008, was on restricted duties for an elbow injury. In October 2008 he injured his back in a non-work-related paint balling incident.
[6] There is some dispute over the extent to which Mr Bormann was truthful in his initial report of this incident to Visy Board management but this is not fundamental to this application.
[7] Visy Board, pursuant to the terms of the enterprise agreement which governs Mr Bormann's employment, provide for income protection insurance through a third party provider. Mr Bormann enquired as to whether he could claim this insurance or make a further workers compensation claim.
[8] Mr Bormann's subsequent income protection insurance claim was accepted and he remained off work under this payment arrangement.
[9] Following medical assessments, the income protection insurer advised Mr Bormann in July 2009, that it considered he had reached a level of fitness that enabled him to return to his pre--paint balling incident duties.
[10] Visy Board required Mr Bormann to undertake a functional capacity assessment prior to a return to work. He subsequently returned to work on restricted duties. The extent to which Visy Board complied with these restricted duties is disputed but is again, not fundamental to this matter. Some weeks after returning to work Mr Bormann advised Visy Board personnel of continuing pain associated with his work.
[11] On 10 December 2009 Mr Bormann was stood down. He was advised that this was because of Visy Board’s concern that continuing to allow him to work would breach its duty of care. Mr Bormann was verbally advised that he was stood down and that he could apply for either income protection insurance or workers compensation. The content of this discussion is disputed.
[12] On 17 December 2009 the WorkCover claims agent, Employers Mutual Limited (EML) advised the Visy Board Occupational Health, Safety and Welfare Administrator (OHSW Administrator), Ms Frigo that Mr Bormann had lodged a WorkCover claim. Ms Frigo provided certain relevant medical information to EML.
[13] In January 2010 Mr Bormann visited Visy Board and sought advice about suitable alternative positions. He was advised that there were no such positions. Mr Bormann subsequently sought written confirmation of the Visy Board position with respect to his continued employment. On 4 February 2010 Visy Board sent Mr Bormann correspondence in the following terms:
“We refer to your request that we put in writing what is your current situation at work and why you have been stood down without pay.
We confirm on 19th October 2008 you sustained a back injury when playing paintball, an activity unrelated to your employment. You made an application for salary continuance which was accepted by the underwriter and wages were paid until about 16th July 2009.
We were able to have you return to work on 21st September 2009 working 35 hours per week doing die ink tooling, re-work, feeding Emba 244, feeding and catching Tanabe, and stacking on all machines with a load master for 203 sessions per day.
We were subsequently advised by the onsite physiotherapist that you had been attending regularly for physiotherapy treatment. You had at this stage increased your hours to 40 hours per week.
As a result we arranged to meet with you on 30th November 2009. You advised that your back condition was not improving but also not getting worse. It was agreed that a new suitable employment schedule would be prepared reducing your hours to 35 hours per week and specifying no back to back stacking from Emba 244 to Tanabe.
We subsequently had a further meeting with you on 10th December 2009 where you advised that your back was still sore and that your left elbow had also flared up. You were informed at that meeting that due to our duty of care that you are being stood down and that options available include making a claim for compensation under the Workers Rehabilitation and Compensation Act, 1986 or making a further claim for Income protection.
We have since been advised by the underwriter that your claim for income protection has been rejected and by EML (claims agent for WorkCover Corporation) that you have or are in the process of making a claim for compensation.
Until the status of your injury and its relationship to work (if any) has been resolved we are not in a position to offer to you work.
We trust our response is sufficient for your purposes.
Yours faithfully
Cristina Frigo
OHS&W Administrator”
[14] Mr Bormann did not contact Visy Board again before the termination of his employment. However, the Visy Board OHSW Administrator was contacted by EML staff investigating Mr Bormann's workers compensation claims on a number of occasions.
[15] Visy Board terminated Mr Bormann's employment by correspondence dated 30 August 2010. This letter stated:
“We refer to our correspondence of 4th February 2010 wherein we advised you that we would consider waiting for the outcome of your workers compensation claim and income protection claim before determining the status of your employment.
We have since had no further contact or correspondence from you in relation to these matters despite nearly seven months elapsing since our letter to you.
We are most disappointed that you have not kept us informed of the progress of your workers compensation and income protection claims or provided us with any additional information in relation to your general capacity for work.
In the circumstances, we consider that we have no choice but to terminate your employment forthwith without further notice to you.
We shall pay your statutory entitlements into your bank account and, by separate letter, provide you with a statement and Centrelink separation certificate.
Yours faithfully
Paul Covington
Factory Manager - Visy Gepps Cross”
[16] I note that a claim made by Mr Bormann for income protection insurance benefits has been rejected and that Mr Bormann is seeking a review of this decision through the Financial Services Ombudsman. Mr Bormann’s workers compensation claim has yet to be determined.
The Submissions
[17] Mr Bormann asserts that the termination of his employment was harsh, unjust or unreasonable. He asserts that he maintained regular contact with his EML/WorkCover case manager and co-operated fully by providing documents and medical reports. He asserts that there was neither an instruction nor a requirement that he contact Visy Board as his medical condition had not improved such that he was able to resume full-time unrestricted duties. As a result, Mr Bormann asserts that there was no basis upon which Visy Board could have founded an assertion that he had frustrated or abandoned his employment contract.
[18] Further, Mr Bormann asserts that the termination of his employment lacked procedural fairness as he was given no warning of this dismissal and had no opportunity to respond to the termination proposal.
[19] Mr Bormann seeks reinstatement. However, he acknowledges that he is unable to return to normal duties and seeks that he be returned to his employment on the basis that he is on leave without pay. He asserts that this should continue until at least his workers compensation claim is determined. In this respect, Mr Bormann asserts that the standing of his workers compensation and income protection plans are affected by whether or not he remains employed by Visy Board. Mr Bormann does not seek any payment for the period following the termination of his employment.
[20] The Visy Board position is that Mr Bormann was asked to stay in contact with the Visy Board OHSW Administrator at the time he was stood down and that he failed to do so. Further, that Mr Bormann's failure to provide regular advice to Visy Board with respect to his health status had the effect that he did not make himself available to work and that this represented a valid reason for the termination of his employment.
[21] With respect to the termination of employment process, Visy Board asserted that Mr Bormann was advised of the reason for the termination of his employment and that he was given an opportunity to have a support person present at the 10 December 2009 interview at which he was advised that he was stood down.
[22] Visy Board argue that this stand down should be regarded as a period of sick leave without pay and is, in that respect, consistent with the provisions of the enterprise agreement governing Mr Bormann's employment which details Visy Board’s commitment to identifying work suited to an employee's physical abilities.
[23] Visy Board asserted that there is no utility in the application in that it is conceded that Mr Bormann is unable to return to work. Further, his employment status will not affect either his workers compensation or income protection insurance claims.
[24] I note that, in the course of the proceedings, Mr Bormann's representative referenced and provided me with a draft settlement proposal which had been discussed with Visy Board. I have not had regard to this material in reaching a conclusion in this matter.
The Evidence
[25] The parties have provided me with voluminous documentation in this matter. Most of this material goes to Mr Bormann's previous workers compensation and income maintenance claims and is simply not relevant to the matters at issue here.
[26] Notwithstanding this, I have considered all of the material put to me.
[27] I have briefly summarised the evidence of the witnesses who appeared in this matter.
[28] Mr Bormann's evidence went to his employment history at Visy Board and to the various injuries he had over this time. He explained the nature of his non-work-related paint balling injury which occurred in October 2008, his subsequent discussions with Visy Board and his income protection insurance claim. Mr Bormann explain the process which was followed after the income protection insurer advised that it considered he could return to work and the work he undertook from September 2009 to December 2009.
[29] Mr Bormann's evidence went to the report he made to Visy Board OHSW personnel to the effect that his tennis elbow condition appeared to be returning and his back pain fluctuated. He detailed his recollection of the meeting with the Visy Board OHSW Administrator, Ms Frigo on 10 December 2009 at which he was told he was stood down.
[30] Following this stand down Mr Bormann pursued his income protection insurance claim and then lodged a workers compensation claim which has not yet been determined.
[31] Mr Bormann's evidence was that he understood he only needed to contact Ms Frigo if his condition improved sufficiently, and that it did not do so.
[32] Mr Bormann's evidence went to his actions on receiving the letter of termination of his employment. He contacted Ms Frigo but was told that the termination of his employment was a management decision. He endeavoured to discuss the matter with the Factory Manager, Mr Covington but was referred back to Ms Frigo. Mr Bormann's evidence went to his medical condition and the medical advice and treatment he had, and was continuing to receive.
[33] Ms Frigo, the Visy Board OHSW Administrator gave evidence about her awareness of Mr Bormann's various workers compensation claims and the injury management processes followed by Visy Board. She advised of how she became aware of Mr Bormann's October 2008 back injury and his subsequent income protection insurance claim.
[34] Ms Frigo was involved in facilitating Mr Bormann’s graduated return to work after this absence. Her evidence was that she became aware of Mr Bormann's reports of continuing pain in his elbow and back and informed him that she was not prepared to expose him to the risk of a further injury and that he could apply for salary continuance (income protection insurance) or workers compensation. Ms Frigo discussed with Mr Bormann possible alternative work contingent on his obtaining a forklift truck driving licence. Ms Frigo asserts that she asked Mr Bormann to stay in contact with her and to let her know how he was progressing. Under cross examination however, Ms Frigo could not recall if she told Mr Bormann that he should only contact her if his condition changed. In this respect her evidence 1was that:
“Why would there be a - how could contact with you possibly help Stuart get back to work if his medical condition hadn't changed?---Well, his medical condition could have changed so therefore if he kept in contact we would have known how he was going, seen if there were further duties for him.
**** CRISTINA FRIGO XXN MR HARDIE
But you told him to contact you if things changed?---Yes.
What other reason would there be for him to contact you?---Even if things hadn't changed. We were his employer.
I put it to you that you simply told him to get in contact with you if anything changed with his medical condition. That's the truth, isn't it?---No. I asked him to keep in contact with me in regards to his medical condition.
If it changed?---If he had rehabilitated himself or anything was going on.
So in the event that he hadn't rehabilitated himself or his condition hadn't improved?---He could have let us know that as well.
But did you tell him to? Did you put it in terms that, "Even if things don't change contact me"?---I can't recall.”
[35] Ms Frigo’s evidence was that she did not make the decision to terminate Mr Bormann's employment but that this decision was made by more senior management. She confirmed that, when Mr Bormann contacted her after the termination of his employment, she told him that it was unlikely that this termination decision would be changed.
[36] Ms Leggett is the EML case manager who, until recently, had general carriage of Mr Bormann's workers compensation claim. Her evidence was that this claim had not been determined. Ms Leggett gave evidence that she was in regular contact with Ms Frigo to update her on the status of Mr Bormann’s workers compensation claim. Further, that since lodging his claim, Mr Bormann had been in regular contact with EML through her. Ms Leggett’s evidence was that the termination of Mr Bormann's employment would not affect the determination of his workers compensation claim.
Findings
[37] Mr Bormann and Visy Board are in dispute over what advice was provided to Mr Bormann by Ms Frigo on 10 December 2009 when Ms Frigo advised Mr Bormann that he was stood down. Having reviewed the evidence before me, I have concluded that Ms Frigo advised Mr Bormann that he was stood down, and would not be offered work until his medical condition improved. Ms Frigo advised Mr Bormann that he could apply for workers compensation or income maintenance insurance. I have concluded that Ms Frigo advised Mr Bormann that he should inform her if he obtained his forklift driver's license as this may assist in enabling him to undertake alternative work. She gave him her business card and asked him to advise her if his condition improved. I am not satisfied that Ms Frigo told Mr Bormann that he should remain in contact with her regularly.
[38] I have reached this conclusion having considered the evidence of Ms Frigo and that of Mr Bormann. Additionally, when Mr Bormann returned to Visy Board in January 2010 to ask for clarification of his employment, there is no evidence that he was told then of a specific requirement that he contact Visy Board regularly. Further, the letter of 4th February was a clear statement of the employer's position regarding Mr Bormann’s employment, but it did not say that Mr Bormann had to keep in contact. Finally, whether he was able to work or not, he was still an employee, and there was nothing to stop Ms Frigo from contacting the employee to ascertain his condition as part of her work function.
[39] Mr Bormann was engaged as a weekly hire employee pursuant to the Visy Board Enterprise Gepps Cross/Berri Enterprise Agreement 2008 (the Agreement).
[40] Section 524 of the Act relevantly states:
“524 Employer may stand down employees in certain circumstances
(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:
(a) industrial action (other than industrial action organised or engaged in by the employer);
(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;
(c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.”
[41] I have concluded that Mr Bormann was not stood down in so far as this section defines the concept of a stand down, but that he was considered to be on leave without pay pending an improvement in his physical condition or his completion of forklift training which could enable him to undertake other work.
[42] Such an arrangement is not specifically referenced in the Agreement and has the potential to allow a circumstance where the employment contract is ultimately frustrated by the effluxion of time.
[43] The alternative position would be to regard the leave which Visy Board required Mr Bormann to take from 10 December 2009 as a termination of employment effective from that date. The behaviour of both the parties clearly indicates that neither regarded this as an employment termination as at that date and that both parties proceeded on the basis that, until 30 August 2010, Mr Bormann remained an employee.
[44] Section 396 details the preliminary issues to which I must have regard before considering the merits of Mr Bormann's case. In my decision of 28 January 2011 I extended the time for lodgement of the application. I am satisfied that none of the remaining preliminary issues in this section are relevant.
[45] Section 387 states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[46] I have considered each of these factors in the context of all of the evidence before me.
Valid Reason
[47] Notwithstanding that the legislation has subsequently changed so as to more explicitly specify the factors Fair Work Australia is required to take into account, I have applied the principles adopted by Northrop J in Selvechandron v Petersen Plastics Ltd 2 in the following terms:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly”.
[48] My findings in this respect are based on the evidence before me. I have noted that the letter terminating Mr Bormann's employment was signed by the Visy Board Gepps Cross Factory Manager who did not give evidence. I understand that Mr Covington was this employer decision maker.
[49] The termination of Mr Bormann's employment followed a period of leave without pay. This was imposed by Visy Board as a result of its assessment of its responsibilities as an employer. The correspondence of 4 February 2010 concluded on the basis that “Until the status of your injury and its relationship to work (if any) has been resolved we are not in a position to offer to you work.”
[50] Mr Bormann's evidence was that he took advice from his union after 10 December 2009. There is no evidence that he disputed the extent to which he was unable to safely undertake his normal duties. Further, there is no evidence that he commenced or completed the forklift training which might have enabled him to do a different job.
[51] Visy Board asserted that Mr Bormann's failure to keep in contact with it and/or to provide ongoing and updated information relative to his capacity for work represented a valid reason for his dismissal.
[52] I have concluded that Ms Frigo’s advice to Mr Bormann was that he should advise Visy Board if he obtained his fork lift driver’s licence and that he should advise Ms Frigo when his condition improved, such that he could return to work. Further, Visy Board’s written confirmation of Mr Bormann's employment standing, provided to him in February 2010 set out the employer position and did not specify what form of ongoing contact with Visy Board was required.
[53] In these circumstances Mr Bormann's position that he did not contact Visy Board because his medical condition had not changed, was reasonable. Further, Mr Bormann maintained regular contact with EML as the WorkCover claims agent. This appears to reflect his obligations under the workers compensation system. Under the Worker’s Rehabilitation and Compensation Act 1986 3, Visy Board had the capacity to request information from WorkCover with respect to Mr Bormann but there is no evidence that it did this.
[54] Consequently, I am unable to describe Mr Bormann's behaviour as misconduct warranting termination of employment. Had Visy Board issued clear or different instructions relative to the requirement to keep it informed of his condition, I may have arrived at a different conclusion.
[55] I have considered the extent to which, even if it was not misconduct, Mr Bormann's actions in not maintaining contact with Visy Board meant that he ceased making himself available for work such that there was a valid reason for his dismissal.
[56] This cannot be the case in this situation. Mr Bormann followed Visy Board’s advice in that he applied for further income protection insurance and applied for workers compensation. His position or skills did not change such that the requirement to contact Visy Board arose. Visy Board were aware, through its contact with Ms Leggett of EML, of issues associated with his ongoing workers compensation claim.
[57] I have noted that Visy Board does not contend that Mr Bormann's behaviour so frustrated the employment contract that it bought it to an end. The termination of employment decision was made by Visy Board in circumstances where it was aware of Mr Bormann's ongoing workers compensation claim and where Visy Board had not dismissed Mr Bormann in its February 2010 correspondence but had said that his return to work was conditional on the resolution of his injury and its relationship to his work. The termination of employment letter of 30 August represents a significant and unsubstantiated change in Visy Board’s earlier position.
[58] In these circumstances I am unable to discern a valid reason for the termination of Mr Bormann's employment.
Notification of the Reasons
[59] The correspondence dated 30 August 2010 was received by Mr Bormann on 31 August 2010.
[60] Whilst I consider that this letter erroneously characterised the earlier 4 February 2010 correspondence, it advised that the reason for the termination of Mr Bormann's employment was that Visy Board had had no contact from Mr Bormann over that seven-month period and that Mr Bormann had not provided further information relative to his capacity for work. In this respect, the 30 August 2010 letter details the reasons for the termination of Mr Bormann's employment.
Opportunity to Respond
[61] Mr Bormann's receipt of the letter of termination was the first advice of this termination. He was not given the opportunity to explain his position before the termination of his employment.
[62] Whilst it is true that Mr Bormann did try to debate the termination of his employment with Ms Frigo and Mr Covington after this termination had been affected, this request was refused, and in any event, could only have resulted in a better explanation of the employment termination decision that had been put into effect.
Unreasonable refusal to allow a support person in discussions
[63] As there were no discussions with Mr Bormann prior to the termination of his employment, there was no capacity for Mr Bormann to make a request for a support person.
[64] To the extent that Visy Board argues that Mr Bormann had the opportunity to have a support person present at the 10 December 2009 meeting, there is no evidence that this meeting foreshadowed the termination of his employment.
Warnings - Unsatisfactory Performance
[65] I do not consider that the termination of Mr Bormann's employment related to his work performance.
[66] Notwithstanding this, even if his failure to maintain contact with Visy Board was to be considered as a performance issue, there is no evidence that Mr Bormann was warned that unless he maintained regular contact, irrespective of his health status, his employment could be terminated.
Size of the employer's enterprise
[67] On the material before me I am satisfied that Visy Board is a substantial employer and could be expected to have comprehensive procedures dealing with employment issues of this character.
Absence of dedicated In-House Resource Management expertise
[68] Evidence of the involvement of human resource management practitioners apart from Ms Frigo’s OHSW function was not provided to me but Visy Board is of a size that I would expect that the manager who determined that Mr Bormann should be dismissed would have had access to such expertise.
Other matters considered relevant
[69] Mr Bormann asserts that the termination of his employment may affect payments to be made to him under either the workers compensation system or as income insurance. Visy Board asserted that there is no fundamental difference between Mr Bormann’s employed status and his unemployed status and hence his application has no meaningful effect.
[70] The evidence before me is that the termination of Mr Bormann's employment will not affect the decision to accept or to reject his compensation claim. Further, there is no evidence of any potential impact on his income insurance claim.
[71] However, if either claim is accepted and the termination of Mr Bormann's employment remains unchanged, this has the capacity to affect both Visy Board’s costs in terms of the Rehabilitation and Compensation Act 1986 (section 58B) and Mr Bormann, in terms of any capacity for him to return to work.
[72] Hence I am unable to conclude that the future possible effect of the termination of Mr Bormann's employment on his workers compensation or income maintenance claims means that any unfairness in the termination process should be overlooked.
[73] I have also noted the evidence which indicates that Mr Bormann may now require back surgery. A prognosis for, and the timing of any such surgery is not clear to me and I do not consider that it represents a factor which mitigates against finding that the termination of Mr Bormann's employment was harsh, unjust or unreasonable.
Conclusion
[74] I consider that the termination of Mr Bormann's employment was harsh, unjust and unreasonable in that, in the circumstances of this situation, it lacked a valid reason and was procedurally unfair. Specifically, I consider it to be harsh in that Mr Bormann was not unequivocally told of a requirement that he maintain regular contact with Visy Board in order to preserve his employment standing, as distinct from providing advice when his condition improved. I consider it to be unjust in terms of the procedural deficiencies in the dismissal process. Finally, I consider the dismissal to be unreasonable in that the Visy Board position was inconsistent. In February 2010 the Visy Board correspondence advised Mr Bormann that "until the status of your injury and its relationship to work (if any) has been resolved we are not in a position to offer you work". The same letter confirmed that Visy Board continued to regard Mr Bormann as an employee. In the termination of employment advice of 30 August 2010 Visy Board characterised its position in the following terms: "We refer to our correspondence of 4th February 2010 wherein we advised you that we would consider waiting for the outcome of your workers compensation claim and income protection claim before determining the status of your employment."
[75] It follows that the termination of Mr Bormann's employment was unfair.
Remedy
[76] Section 390 provides that where Fair Work Australia finds that a dismissal was unfair, reinstatement is the primary remedy with compensation as an alternative.
[77] Mr Bormann seeks reinstatement. His position is that 4:
“49. Since lodging his s394 of the Act application the Applicant has consistently, unequivocally and in an open letter to the Respondent sought nothing more than reinstatement from 29 August 2010 on authorised sick leave without pay. The Applicant is not seeking any arrears of wages or any financial imposition on the Respondent. He does not want any monetary compensation in lieu of reinstatement should the Tribunal determine that his dismissal was harsh, unjust or unreasonable.
50. Whilst the Applicant is seeking an “open ended” reinstatement, he is cognisant that should his currently undetermined claim for workers compensation not be accepted by EML, and in the event that its adverse decision is affirmed after undertaking the normal appeal process, the Respondent would be in a position to legitimately and validly terminate his employment pursuant to regulation 3.01 of the Fair Work Regulations 2009, commonly known as the “90 day rule”. In other words, if his current incapacity is found not to be work related in the final analysis, the Respondent would be excluded from the provisions of s352 of the Act which prevents it from terminating employment because of an injury.”
[78] The Visy Board position is that the remedy sought is futile and, in terms of its limited duration, without legislative foundation. Further, Visy Board intend that Fair Work Australia should not impose a "holding pattern" on someone's employment contract which holding pattern is dependent upon other events.
[79] Consistent with the requirements of the Act, I have initially considered reinstatement as a remedy. The capacity to grant reinstatement is set out in s.391 in the following terms:
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.”
[80] I do not consider that there is any impediment to reappointing Mr Bormann to his previous position on the basis that both Mr Bormann and Visy Board agree that Mr Bormann is unable to undertake those duties at the present time and hence if reinstated, will resume what I have referred to as leave without pay.
[81] Given that Mr Bormann acknowledges that he has been, and is currently unable to undertake his job, the issue of payment for the period from the termination of his employment does not arise.
[82] I have considered the extent to which reinstatement would be inappropriate from three perspectives. Firstly, the duration of any reinstatement is open to conjecture. There is no capacity for Fair Work Australia to prescribe a finite limit to Mr Bormann's continued employment. The possibility of the termination of the employment relationship in the future, because no suitable work is available is obvious. There is nothing in the Act that limits reinstatement. If Visy Board moves to terminate Mr Bormann's employment a second time, I would expect that, having been through this process, it would follow a fairer and better grounded approach.
[83] Secondly, in the event that Mr Bormann is reinstated, it is possible that discussions between he and Visy Board could identify work which Mr Bormann is able to undertake.
[84] Finally, the alternative to reinstatement involves consideration of compensation. Not only was this not sought, but the fact that Mr Bormann has not suffered a financial loss as a consequence of his dismissal mitigates against the granting of an amount of compensation.
[85] Consequently, and notwithstanding some reservations about the utility of such an order, I will reinstate Mr Bormann to his previous position.
[86] Because of Mr Bormann's position with respect to his capacity since the termination of his employment, no order for payment of wages will be made. An order for continuity of service will be made, to the extent that, under the relevant agreement, or legislation, entitlements can continue to accrue since 10 December 2010. An Order [PR507510] giving effect to this decision will be issued.
SENIOR DEPUTY PRESIDENT
Appearances:
T Hardie “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for Mr Bormann.
I Colgrave counsel for Visy Board Pty Ltd.
Hearing details:
2011.
Adelaide:
February 2.
1 Transcript of proceedings 2 February 2011 [PN1269-1275]
2 (1995) 62 IR 371 at 373
3 Section 107.
4 Applicant’s Closing Submission
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