Sutcliffe v General Motors Holden
[1997] IRCA 274
•25 June 1997
DECISION NO:274/97
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether the respondent had a valid reason for the termination of the applicant’s employment-reinstatement
WORKPLACE RELATIONS ACT 1988, ss.170DE, 170DC, 170EE
SUTCLIFFE -V- GENERAL MOTORS HOLDEN
No. 1176/96
JUDICIAL REGISTRAR: L FARRELL
PLACE: ADELAIDE
DATE: 25 JUNE 1997
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No. 1174/96
B E T W E E N:
TIMOTHY SUTCLIFFE
Applicant
AND
GENERAL MOTORS HOLDEN
Respondent
MINUTES OF ORDER
BEFORE: JUDICIAL REGISTRAR L FARRELL
PLACE: ADELAIDE
DATE: 22 JULY 1997
THE COURT ORDERS THAT:
The respondent reinstate the applicant within 21 days of today’s date.
The respondent pay to the applicant the remuneration lost from the date of termination of his employment until the date of reinstatement.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No.1174/96
B E T W E E N:
TIMOTHY SUTCLIFFE
Applicant
AND
GENERAL MOTORS HOLDEN
Respondent
BEFORE: JUDICIAL REGISTRAR L FARRELL
PLACE: ADELAIDE
DATE: 25 JUNE 1997
REASONS FOR JUDGMENT
This application comes before the Court pursuant to the provisions of Section 170ED of the Workplace Relations Act. The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement.
The applicant was employed on the production line at the Elizabeth plant of the respondent. He suffered an injury to his back in the course of his employment in February 1996. From March 1996 he performed light duties working four hours a day except for a brief period when he was off work altogether for treatment. There is no dispute that the applicant suffers from a disc prolapse and right side sciatica and as a consequence he has been partially incapacitated for work.
The applicant was treated by his general practitioner Dr Cheung and an orthopaedic surgeon, Dr Cullen. He was referred by Dr Cullen to Mr Osti, another orthopaedic surgeon, to assess his suitability for surgery.
The applicant was seen by Dr R G Johnson on behalf of the respondent on 14 August 1996. Dr Johnson records in his report at page 3 ‘At this stage some six months after the onset of his symptoms, Mr Sutcliffe described his continuing problems as follows:
He has no back pain. His most severe pain is in the lateral aspect of his right buttock and this is present 24 hours a day. This pain is constant and is eased to some degree by tablets. He works a four and a half hour shift from 7.00pm until 11.00pm. For three and a half hours his symptoms are not too bad but during the last half hour the pain becomes more severe and radiates from his right buttock down to his right ankle.’
The applicant gave evidence that on 22 August 1996 there was a breakdown on the line that he was working on that required him to do a lot more bending and lifting than usual. After his shift finished he experienced a significant increase in symptoms. The applicant did not attend work on the following day, which was a Friday.
On the following Monday he saw his general practitioner Dr Cheung. The applicant recollected that he had been physically examined at that time by Dr Cheung, however that recollection must have been incorrect. Mr Osti saw the applicant on 28 August 1996. The Applicant told Mr Osti that he was in considerable pain and that on a scale of 1 to 10 he rated his pain at 8. Mr Osti gave the applicant a medical certificate certifying that he was totally incapacitated for work until 7 September. It was then anticipated that the applicant would undergo an MRI scan in mid September and surgery in October.
At this time the applicant had been trying to sell his home following the break up of his marriage. His house had been on the market for 18 months and on one previous occasion a contract had been entered into. The applicant had signed a contract for the sale of his home on 22 August 1996 and on 28 August 1996 the purchasers paid the deposit with settlement due on 12 September 1996. The applicant gave evidence that on or about the same day he telephoned the workers compensation office of the respondent to request assistance from the respondent in moving house. He was told by Mr Nuske that it was not the usual practice however if he wrote a “tearful” letter then the respondent would consider it. Some other conversation took place between the applicant and Mr Nuske. The applicant declined to write a “tearful” letter.
The applicant gave evidence that he then took steps to move house. On Saturday, 31 August 1996 friends assisted him and he supervised the moving of bulky items. On Monday second hand dealers came to his house and bought various items. On Tuesday he arranged for boxes to be stored or given away. On Wednesday he borrowed a ute and loaded it with rubbish with the assistance of a friend, Mr Des Blackwell. They drove to the dump however because it was closed they could not dump the rubbish. On Thursday he took that load to the dump by himself and then later in the day he took a further load of rubbish to the dump with the assistance of Mr Blackwell. On Friday 6 September the applicant again went to the dump with another friend.
The applicant attended work on 9 September 1996 but was told he had to obtain a medical certificate before he could return to work.
On 13 September the applicant was interviewed by Mr Fox the applicant was shown a film of himself unloading rubbish at the dump on two occasions and carrying some pipe. He was then asked to give his explanation.
CREDIBILITY
In my view this is a matter in which the credibility of the applicant is of prime importance and I have given careful consideration to his evidence, its consistency and the way in which he conducted himself whilst giving evidence. The applicant was cross-examined about a number of matters; the reason for his discharge from the Army, his motor bike riding, the film and his trips to the dump, his modified duties, detail of the conversation with Mr Nuske, the sale of his house, whether he performed other work. His explanations were understandable and they were not substantially challenged except by the evidence of Mr Nuske, whose evidence I do not accept where it differs from that of the applicant for reasons I will later explain. His complaints to Dr Johnson on 14 August were entirely consistent with his subsequent conduct .
MR NUSKE
Mr Nuske was cross-examined about notes he said were made at the time that he spoke to the applicant. Mr Nuske asserted that the conversation took place between himself and the applicant most definitely on 30 August 1996 and that was what his notes record. The evidence of surrounding events though means that the conversation could not have taken place then. Ultimately the explanation by Mr Nuske left me with some doubt about the reliability of his evidence and his notes.
MR BLACKWELL
Mr Blackwell gave brief evidence concerning the assistance he rendered to the applicant. I accept his evidence in relation to the events he was able to observe.
FILM OF THE APPLICANT AT THE DUMP
It is not possible to see the applicant’s facial expressions in the film. Each segment of film was brief, the longest section is approximately 12 minutes long. The applicant is shown carrying light pipes on his shoulder. He is shown to pick up and throw items off the back of the ute. The items are generally small and appear to be quite light. He was able to raise his body over the side of the ute jumping up from the ground. He jumped off the back of the ute at one stage but it is difficult to see. He bends and squats. There is one slight problem with a part of the film where it stops and starts. There is no film of the second loading at the dump that occurred approximately one and a half hours later on 5 September when Mr Blackwell gave evidence that he was doing most of the work. Interestingly in the film of 5 September the applicant removes a number of items from the rear of ute at the dump and places them in the cab rather than in to the pit. This seems to indicate that someone else placed the items in the ute which is consistent with the applicant’s evidence. Dr Cheung , having seen the film expressed the view that none of the actions were inconsistent with the applicant’s injury although he had some concerns about the applicant jumping down.
MODIFIED DUTIES FILM
The modified duties film shows the kind of work performed by the applicant for the respondent. The work appears to be relatively light. The applicant disputed that the film represented the full range of duties he had to perform. There is no dispute between the parties that the applicant was partially fit for work at the time the film at the dump was taken.
THE TERMINATION INTERVIEW
The applicant’s evidence of the interview with the respondent on 13 September is as follows. He was shown the film and asked for his explanation. He explained that he had separated from his wife shortly after commencing work for the respondent, that he and his wife had separated because of the strains that shift work had placed on the marriage. As a result he had to sell the house. It had been on the market for a long time. It had recently been sold and he had to move quickly. He had requested help from the respondent and had been told he would have to make such a request in a “tearful” letter. He was from Tasmania and had no family here. He had no alternative but to play some part in moving. He had to move the very light pipes shown in the film so that he could borrow the ute. He had visited the dump with a friend the night before, but it had been closed. His friends were at work so they could not assist him. He had increased his medication and had suffered for it later in the day. He explained that he had been in considerable pain but that he paced himself and taken pain killer. He said that he wanted to become a leading hand supervisor, that he was a good worker and always punctual. He understood that his surgery would be paid for from what was said by Mr Fox at the interview. Resignation was discussed a s a possibility. It was not put to the applicant at that interview that he deceived the doctors in order to move house.
MR FOX
Mr Fox, Senior Employee Relations Officer gave evidence about the interview on 13 September 1996. His version of what occurred did not substantially differ from the applicant's evidence about that interview.
MR RUSSELL BROWN
Mr Brown’s evidence was marginally different about the details of the termination interview. I do not think anything particularly turns on that difference in recollection. However it is clear that Mr Brown formed an opinion about what the applicant could and could not do without regard to medical advice.
THE MEDICAL EVIDENCE
DR CHEUNG
Dr Cheung was able to provide the Court with a very straightforward explanation of what the movements the applicant could make given the injury to his back and the kind of limitations which he had. He had treated the applicant since 1991. He did not examine the applicant on 26 August because he believed it would be too painful for him and the applicant would be examined by Mr Osti within two days in any event. He reported that the applicant was always keen to work, and he believed that the applicant had a genuine physical problem. Dr Cheung was unable to detect any functional overlay. Having seen the film evidence of the modified duties Dr Cheung regarded the applicant as fit for work 6 hours per day on modified duties at the time that the film was taken. He did not regard the film evidence of the applicant as inconsistent with the presentation to him.
MR OSTI
Mr Osti was an impressive witness. He gave evidence of the process by which he examined the applicant on 28 August 1996 and in particular his search for clues that might lead to a finding that the applicant did not have a physical problem. His reason for doing so was to decide whether the applicant was a suitable candidate for surgery. Any signs of a non physical cause of the applicant’s pain would mean that he was an unsuitable candidate for surgery. He detected no signs of non physical causes of the applicant’s pain.
He explained that a person who suffers from chronic pain, as the applicant does, will take longer to return to his pre-existing condition than a person who does not. He regarded an aggravation as appears to have happened to the applicant on 22 August 1996 as likely to settle within a few days normally. In the applicant’s case because he suffers from chronic pain Mr Osti expected it would take longer for his pain to settle.
Mr Osti gave evidence that he certified the applicant as totally incapacitated for work until 7 September in part because he wanted the applicant to be in good physical and mental condition if the surgery did take place in October and partly because of the amount of pain that the applicant was in. He did not explain his reason for certifying the applicant totally unfit for work to the applicant. He gave evidence that as a consequence of what occurred here he now takes the time to explain to his patients their obligations relating to the certification.
Mr Osti had no recollection of the applicant seeking the certificate from him. He certified the applicant on the basis that he thought it was best for him. It seems to me that if the applicant appeared to be motivated to get the certificate it was the kind of matter that would have seemed relevant to a consideration of whether the applicant was a suitable candidate for surgery and therefore something that Mr Osti would record or recall.
MR FRY
Mr Fry did not have the opportunity to examine the applicant. He had seen the film and I presume some medical reports about the applicant. The conclusions he drew showed no careful analysis of the facts here. His observations showed none of the careful logic of Mr Osti. I have preferred the evidence of Mr Osti and Dr Cheung.
WAS THERE A VALID REASON FOR THE TERMINATION OF THE APPLICANT’S EMPLOYMENT?
The Respondent’s witnesses have given evidence that the reason that the applicant’s employment was terminated was because he had deceived the doctors and the respondent.
Having said that I accept the applicant as a truthful witness, I accept that he did not engage in a course of conduct with the intent of deceiving the medical practitioners or the respondent. In reaching that conclusion I have taken into account a number of matters. He would have had to fool the two doctors and it is important to remember here that Mr Osti could not recollect any request by the applicant for a medical certificate. He made no attempt to conceal that he was moving house while he was off work. Instead he rang the workers compensation section to seek assistance. He could have remained working on his modified duties of 4 hours in the evening and still have carried out the moving if necessary without needing to take time off work, especially bearing in mind the opening hours of the dump. His explanation of events seems to me, in the absence of other evidence to contradict it, to be a likely set of events. Almost universally people who suffer from illness or pain will exceed their normal capability when necessity demands it. That was the situation the applicant believed himself to be in when he went to the dump. The evidence before me of what the applicant did on those few days is insufficient in the circumstances to warrant the termination of his employment.
The respondent’s witnesses made a number of assumptions based on their viewing of the film. Firstly they made assumptions about what the applicant would not be able to do if he had a back problem (eg Mr Brown believed that because he had a similar diagnosis the applicant would be not able to do what he did unless he was lying about his injury.) Dr Cheung’s evidence was that the applicant always had good mobility of his back and that by bending his knees he limited the effects of what he was doing. Secondly they assumed he had lied to his doctors. Thirdly they assumed that he had deliberately misled the respondent. On the evidence before me none of these assumptions were correct. I think it was very unfortunate that no attempt was made to show the film to the applicant’s treating doctors prior to the decision to terminate the applicant’s employment.
It is important to note here that the decision makers knew what the applicant was required to do at work, the doctors knew and understood the physical restrictions that the applicant should work under but at no time prior to the dismissal of the applicant did either the doctors fully understand the duties that the applicant was required to do or the decision makers have a true appreciation of the applicant’s physical restriction. In my view the respondent’s decision to terminate the applicant’s employment was flawed by the assumptions made by the decision makers and by their failure to obtain medical opinion from the applicant’s treating doctors prior to the termination of his employment. In my view the respondent did not have a valid reason for the termination of the applicant’s employment.
While I think the applicant could expect some criticism for carrying out physical activities on the two days that he attended the dump, it is important to note that this is not a case where the applicant on an ongoing basis asserted that he was unfit for any work. The period of time here is relatively short. The applicant was returning to his pre-existing level of disability during the week that the film was taken. At some point he became fit to return to work. It was at a point earlier than the certificate stated. The workplace required that injured workers present proof of their fitness for work. No explanation had been given to the applicant by the doctor that if his condition improved he should return to work earlier than the date on which the certificate provided. The applicant’s conduct clearly warranted some discipline, but it did not in the circumstances warrant the termination of his employment.
I also regard the fact that the applicant was suffering from an injury which occurred at work to be significant in determining whether the respondent had a valid reason for the termination of his employment. It seems to me that a decision to dismiss an injured worker, who faces restrictions because of his injury in obtaining work on the open labour market, requires a respondent to carefully consider that decision before proceeding to the termination of an applicant’s employment. I do not believe that such a consideration took place here.
WAS THE APPLICANT GIVEN AN OPPORTUNITY TO RESPOND TO THE ALLEGATION AGAINST HIM?
The applicant was afforded an interview and the opportunity to respond to the film showing him performing work which he was certified as being unable to do.
Mr Blewett argued that the applicant was not told that the allegation against him was that he had set about a course of conduct to deceive the doctors and the respondent in order to obtain some time off. According to Mr Fox it was the alleged deception of the doctors and the respondent that led to the decision to terminate the applicant’s employment.
It is clear from the evidence that what was put to the applicant at the meeting on 13 September was only that he was going to be dismissed because he had done the trips to the dump as shown in the film. There was never any suggestion made to the applicant during that meeting that he was being dismissed because he had deceived the doctors and the respondent. It seems to me that ought to have been put to the applicant so that he could defend himself against that allegation. In my view the respondent’s failure to put the allegation to the applicant in those terms is in breach of the Act.
REMEDY
The applicant seeks reinstatement. In my view reinstatement of the applicant is in all the circumstances practicable and appropriate. However, Mr Smith, Counsel for the respondent, in his final submission requested that if such an order were to be made, that it be stayed until the criminal prosecution of the applicant is complete. The applicant may also have some entitlement to weekly payments of workers compensation which will affect his entitlement to remuneration lost. I will hear the parties as to what order I ought to make in the circumstances.
I certify that this and the preceding 8 pages are a true copy of the reasons for my judgment.
DATE OF HEARING : 1, 2 & 15 MAY 1997
FOR THE APPLICANT : MR S BLEWETT
FOR THE RESPONDENT : MR D SMITH
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