Talevski v R J Gilbertson Proprietary Limited

[1996] IRCA 273

DECISION NO:   273/96

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - workplace injury - unable to perform pre-injury duties - inherent requirements of the “particular position” pursuant to S170DF(2) - OPERATIONAL REQUIREMENTS - APPLICATION DISMISSED.

INDUSTRIAL RELATIONS ACT 1988 Ss 170DE, 170DF, 170DF(2), 170EA,

Cochrane  v Stirling Community Hospital , IRCA No. 56 of 1995.

Dimitre TALEVSKI -v- R.J. GILBERTSON PROPRIETARY LIMITED  - 
VI 5902 of 1995

BEFORE:       R. D. FARRELL JR
PLACE:          MELBOURNE
DATE:            31 May 1996

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA                   )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )         No. VI 5902 of 1996

BETWEEN:  Dimitre TALEVISKI
  -         Applicant

AND:  R.J. GILBERTSON PROPRIETARY             LIMITED
  -         Respondent

MINUTE OF ORDERS

BEFORE:               R. D. FARRELL JR

PLACE:                  MELBOURNE

DATE:  31 May 1996

THE COURT ORDERS THAT:

1.         The application is dismissed.

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

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

VI 5902 of 1995

BETWEEN:

Dimitre TALEVSKI

Applicant

AND:

R.J. GILBERTSON PROPRIETARY LIMITED
Respondent

REASONS FOR DECISION
(delivered ex-tempore and revised from transcript)

31 May 1996  R. D. FARRELL JR

1. This is an application under Section 170EA of the Industrial Relations Act 1988 for reinstatement or, in the alternative, compensation arising from the alleged unlawful termination of the employment of the applicant, Mr D Talevski (“Mr Talevski”), by the respondent, R.J. Gilbertson Proprietary Limited (“Gilbertsons”).

1. Mr Talevski was a longstanding employee in the boning room at Gilbertsons, which is a company involved in meat processing. Mr Talevski is a member of the Australasian Meat Industry Employee’s Union (“AMIEU”), and a delegate of that union gave evidence in support of his case. I disclosed to the parties at the commencement of the case that I have at some time prior to my appointment, been an employee of the AMIEU.  Neither party objected to my going on to hear the matter.

1. Mr Talevski was employed and worked for most of his time at Gilbertsons as a labourer. Labourers perform a wide range of tasks, many of which involve heavy lifting and pushing.

1. In recent years, Mr Talevski began to suffer pain in his arm, which eventually led to him taking time off work. Gilbertsons accepted that it was a work-related injury and it was the subject of a claim under the relevant Victorian Workcare legislation.

1. After a particularly long absence, he was placed on a number of rehabilitation programs intended to reintroduce him to the workplace with a view to his eventually returning to his original duties. These programs were not successful. However, Mr Talevski performed a number of “light duties” as part of these programs. One of these duties, cleaning, is no longer available. However, three other tasks, namely “ticketing” (the attaching of cardboard labels to carcasses), “trimming” (the trimming of dirt, blood spots, hairs etc from carcasses passing on the chain) and “spaghetti meat packing” (the packing in boxes of fingers of meat which have been cut from between the ribs of carcasses) remained available and were performed by Mr Talevski in the period before his dismissal.

1. After Mr Talevski had been employed on light duties for over a year, the employer received medical reports to the effect that Mr Talevski would never be fit to resume his pre-injury duties. Mr Talevski was called into a meeting with management, which was also attended by the two senior Union delegates in the workplace. One of these delegates spoke Mr Talevski’s first language, and was able to ensure that he understood what was said at the meeting.

1. In the course of the meeting, Mr Talevski agreed that he would never be fit to resume his pre-injury duties. The decision was then taken to terminate his employment.

1. Mr Talevski has brought this application on the basis that he contends he is fit to perform the “light duties” listed above, and therefore should be permitted to continue to work productively for Gilbertsons.

1. Gilbertsons foreshadowed that they did not accept that Mr Talevski was adequately performing the trimming and meat-packing duties. They said he was missing spots and hair while trimming because he could not keep up with the rate at which the carcasses moved past him, and they said that he could not pack the spaghetti meat fast enough.

1. However, it was agreed that I decide as a preliminary question at the conclusion of the applicant’s case whether the applicant’s case could succeed, assuming I accepted the evidence led by the applicant as to the extent of his fitness to work.

1. I have decided that the application should be dismissed. I will briefly explain the reasons why, with reference to Sections 170DE and 170DF.

Section 170DF

1. Turning first to section 170DF, I accept that Mr Talevski can properly be characterised as an employee with a “physical disability”, for the purposes of Section 170DF(1)(f), and that he acquired that disability in the course of his long and faithful employment with Gilbertsons.

1. However, Gilbertsons say that the reason he was dismissed was because he could not meet the inherent requirements of the particular position, and that the dismissal is therefore justified under Section 170DF(2).

1. The question I have to decide is what is the “particular position” in these circumstances for the purposes of Section 170DF(2). I believe it is the particular position for which the applicant was employed, that is, in this case, the position of “labourer”. The applicant in this case accepts that he could not perform the various requirements of the labourer’s position that he used to be able to perform before the injury manifested itself.

1. In Cochrane v Stirling Community Hospital (IRCA No. 56 of 1995, RD Farrell JR, 21 February 1996), the applicant had been employed to be a kitchen hand and while she was returning to do light duties in an effort to be rehabilitated the hospital started re-defining her position so that various duties were added to the duties that she was originally required to perform.

1. This is a very different case. Mr Talevski used to be able to perform a wide range of duties and now there are only a few limited duties that he can perform. I do not accept that it is correct to regard the particular limited light duties which he was performing immediately before his dismissal as the “particular position” to which Section 170DF(2) refers.

1. Even assuming that I were wrong in that, I am satisfied that the nature of those positions is such that part of their purpose is to provide an opportunity for workers who have some capacity to obtain full fitness to rehabilitate themselves. And unfortunately it has become clear over the time in which he performed his light duties, that Mr Talevski no longer fell into that category.

Section 170DE

1. I turn now to section 170DE. Based upon the evidence and upon the submissions in the nature of evidence from Mr Lacy, counsel for the respondent, which were accepted by Mr Cash, counsel for the applicant, I am of the view that it was part of the operational requirements of Gilbertsons, and specifically the boning room at Gilbertsons, that it have available to it certain positions where it could place employees who were temporarily injured, as a “halfway house” to them returning to their original employment as fully fit employees.

2. I accept that Mr Talevski could certainly have performed the ticketing job, and may well have been able to properly perform the trimming job and the spaghetti meat job. However, he accepts that he will never be fully fit to do the job he was doing before his injury. It is clear that if Mr Talevski and other workers like him who have been injured in the course of their employment were to be kept indefinitely in “light duty” positions, then those positions would soon all be permanently filled. There would then be nowhere to put employees who were temporarily unfit and needed a way of being re-introduced into the workforce.

1. I therefore accept that it is in accordance with the operational requirements of Gilbertsons’ business that such positions remain free for employees who are only temporarily injured.

1. Mr Cash, counsel for the applicant, suggests that this is an exceptional case given Mr Talevski's good and faithful service over many years, such that while there might be a valid reason for dismissal for the purposes of Section 170DE(1), it would be harsh in the circumstances of this case for Mr Talevski not to be reinstated to perform a position which, though limited, he is able to perform.

1. There was no evidence to suggest that Mr Talevski's situation was unusual. As it happens I am aware, from my own experience in the meat industry, that Mr Talevski's predicament is regrettably all too common. From my observation, meat industry employees almost inevitably find themselves, toward the end of their working life, no longer able to perform the job. It is for that very reason that systems of work might desirably be put in place in these sort of establishments to minimise the possibility of such injuries, which are typically the result of the performance of repetitive tasks, occurring. Indeed, I heard evidence from one of the AMIEU delegates to the effect that it was the union's policy that workers rotate in their tasks as much as possible, presumably on a formal basis, in order to minimise the prospect of such injuries over time.

2. I note that the retaining of employees such as Mr Talevski in specific “light duties” positions from which they would be unable to be moved, would be contrary to the more general good, were rotational systems to be introduced into the workforce.

1. In summary, the applicant has not met its onus to satisfy me that Mr Talevski's position was so unusual as to render his dismissal unusually harsh in all the circumstances and, therefore, I find that it was not in breach of section 170DE(2).

   I certify that this and the preceding 6 pages
   are a true copy of the reasons for decision of
   Judicial Registrar R.D. Farrell.

   Associate:
   Dated:

   APPEARANCES

   Counsel appearing for the applicant:       Mr S Cash

   Solicitors for the applicant:  Patrick Robertson & Co

   Counsel appearing for the respondent:               Mr B Lacy

   Solicitors for the respondent:                   Clayton Utz

   Dates of Hearing:  31 May 1996