Tarasinski v Department of Health and Community Services
[1996] IRCA 277
•17 May 1996
DECISION NO: 277/96
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - applicant injured whilst working at second job -whether VALID REASON- operational requirements of the respondent undertaking - whether HARSH UNJUST OR UNREASONABLE -
Industrial Relations Act 1988, ss 170DE
Selvachradran v Peteron Plastics Pty Ltd, Northrop J, 7 July 1994, unreported
Winter v Australian National Hotels Ltd, Lee J, 25 October 1995, unreported
Patterson v Newcrest Mining, Marshall J, 21 December 1995, unreported
HODGESS & AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION -v- P & O COLD STORAGE PTY LIMITED
NI 4696 of 1995
Before: TOMLINSON JR
Place: SYDNEY
Date: 17 MAY 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NSW DISTRICT REGISTRY
NI 4696 of 1995
BETWEEN:
Stephen HODGESS
&
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
Applicant
AND:
P & O COLD STORAGE PTY LIMITED
Respondent
MINUTES OF ORDER
4 JULY 1996 TOMLINSON JR
THE COURT ORDERS THAT:
The application of the applicant Mr Stephen Hodgess be dismissed
The respondent pay to the applicant the amount agreed upon by the
parties as to the loading on annual leave in accordance with Clause
16.9(b) of the Cold Storage Enterprise Arrangement 1994 Award
within 28 days.
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
NSW DISTRICT REGISTRY
NI 4696 of 1995
BETWEEN:
Stephen HODGESS
&
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
Applicant
AND:
P & O COLD STORAGE PTY
LIMITED
Respondent
REASONS FOR DECISION
4 JULY 1996 TOMLINSON JR
This is an application for compensation under the Industrial Relations Act allegedly for unlawful termination by the respondent. The applicant stated he was 32 years of age and that after an initial period of employment in 1992 as a casual he had become a permanent employee - working as a “picker” - with the respondent employed at its bulk food freezer warehouse loading, stacking, sorting and assembling frozen foods. It was common ground that under the P&O Cold Storage (NSW) Enterprise (State) Award the respondent could require a picker to work either in the freezer module, the freezer bulk pick (or chiller) Module, or the chiller bulk pick or any other part of the warehouse such as the sortation pallet assembly area, subject to demand. In the freezers the temperature is turned to minus 25 degrees, and in the chillers the temperature is 5 degrees. In his evidence in chief the applicant stated that he was a bulk picker in the Franklins section of the warehouse, and that only worked in the freezer section if he was specifically asked to. The applicant told the court a person employed as a bulk picker spends all day assembling orders of frozen foods, stacking the items from “pick bays” into heavy duty trolleys, constructed to work as mobile cages. The applicant stated that to work as a bulk picker was not as demanding as was the work in the chiller module, where employees have to wear freezer suits and work in confined areas. The cages with which the bulk pickers work when they stack the items can weigh up to 600 kilograms when laden, and pushing them around the warehouse apparently requires considerable strength.
In early 1995 he took a second job as a driver with Domino Pizzas in order to earn extra money to pay for ballroom dancing lessons. Whilst performing that second job he slipped on a ramp and badly fractured his right ankle in four places. He underwent an operation and the fractured bones were pinned. The applicant stated he contacted the respondent and advised of the position and that he faxed to them medical certificates stating he was unfit for work. On the basis of his employment with Domino Pizza the applicant was paid workers compensation until 1 November 1995 and stated that on and from that time he had clearance from treating doctor, Dr Sherry, to return to work. The applicant returned to work with Dominos Pizza as a casual driver in November 1995.
The applicant stated that his ankle “felt good” at the end of 1995. On 20 November 1995 the applicant was examined by the respondent’s doctor, Dr Phillip Haynes and a report was submitted to the respondent.
The applicant stated on 1 December 1995 he had a meeting with the respondent’s personnel manager Mr Columb Frize. The medical report of Dr Haynes was discussed and it was stated to the applicant that he was a liability to the company and that it was not prepared to take the risk to allow him to return to work. The applicant stated that management stated it was concerned the applicant might further injure the ankle with the repetitive twisting and turning. The applicant stated he had hoped the respondent might suggest a trial period to see how the ankle performed, but that did not eventuate. A meeting took place between the applicant, his union and the respondent as a result of which the applicant was terminated and paid 2 weeks pay in lieu of notice, no loading on holiday pay. The applicant stated there was no formal letter of termination and that he had never seen exhibit 3 before.
Exhibit 3 was a letter dated 1 December 1995 from the respondent signed by Mr Frize as the personnel manager addressed to the applicant’s union that stated inter alia:
“ Dear Mr Donzow
This confirms the decision the Company has made today to terminate the services of Mr Stephen Hodgess. This decision was arrived at following the discussions we had today with Mr Peter Usher of the AMIEU, and Mr Stephen Hodgess in the presence of Mr Kevin Johnson, Distribution Center Manager and Phil Wright, delegate. After very careful consideration of the medical report dated 20 November 1995 from Dr Philip Haynes MB BS DOHS FAFOM Occupational Physician who examined Mr Hodgess (report enclosed) we have advised Mr Hodgess we decided to terminate his services as from today.
Mr Hodgess was been terminated for reason that he is unable to fulfil is contract of employment with P&O Cold Storage, due to as we understand his having sustained a serious ankle injury in the course of employment with another Company. This accident apparently occurred on 14 April 1995, but the Company retained him on the payroll. We had received medical advise (sic) on 20 October 1995 from a Workcover Doctor that Mr Hodgess was not fit for normal duties, but could be employed with the following restrictions of “no prolonged standing” etc (copy attached). We accordingly sent Mr Hodgess to Dr Haynes for a specialist report, and this report was shown to Dr M Purcell who was here to conduct medicals on site and is fully conversant with our work. Dr Purcell confirmed that in view of the medical reports Mr Hodgess was not fit for his duties at this Company. There is also no indications that Mr Hodgess will be able to resume his normal duties in the foreseeable future after this prolonged absence.
We accordingly advised Mr Hodgess of this decision to terminate him today after discussing the medical reports and his inability to perform his required duties, and have paid him all outstanding monies including accumulated annual leave and termination payment.”
On behalf of the applicant the Court heard from Stephen Barton who had been employed as a bulk picker with the respondent for some two and a half years. Mr Barton gave evidence of the breaks taken during the average day, and also stated that he had not worked in the freezer section for some six to nine months. Mr Barton stated the job was physically demanding and required “a lot of moving around”.
On behalf of the respondent the Court heard from Dr Phillip Haynes a specialist physician retained by the respondent. Exhibit A was the medical report dated 20 November 1995 prepared by Dr Haynes that stated inter alia:
“I saw and examined Mr Hodgess at 8.30 am today.
He gives a history of a fracture dislocation of the right ankle on 14 April 1995, when he slipped on a ramp ad Domino’s Pizza, Kingswood while working in a second job. He has a worker’s compensation claim under the GIO relating to the injury.
He required surgery to apply metal pins and plates to the fractures. The metal pins were later removed, but the plates remained in the ankle.
Currently he has only slight residual disability. He would be able to undertake the bulk of his normal duties as he describes them to me working in the bulk area. However he would be unfit for repetitive twisting on the right ankle, and he would be unfit to work in the freezer area due to the danger of slipping and re-injuring the ankle. He would need to rest the ankle for short periods, but this could be undertaken during his normal rest breaks.
Whether the above modifications could be made to Mr Hodgess’ duties would be a matter for P & O Cold Storage. I am uncertain as to whether there would be any obligation of behalf of P & O Cold Storage to comply with such modifications of duties. Legal advice may be required on that point.
Of course an aggravation in the workplace by a further fall could not be ruled out.”
In his evidence in chief Dr Haynes stated the applicant would have had difficulty walking 4 or 5 kilometres per day and that heavy lifting would strain the ankle. The use of his toes and the use of stairs would cause difficulty. As would pushing a laden pallet. In cross examination Dr Haynes stated that working in the freezer has increased risks of injury for everyone. Dr Haynes was impressed with the extent of the recovery of the applicant’s ankle, but stated he doubted that it would ever become completely normal.
On behalf of the respondent the Court also heard from Dr Michael Purcell, the respondent’s company doctor. The witness had observed employees working in the freezer and the bulk areas and stated he was aware of the degree of agility required to work there. Dr Purcell stated he had seen the report of Dr Haynes and as a result stated that it was his professional opinion that the applicant was at risk of re-injuring himself.
The Court heard from Mr John Smith, whose prepared statement was admitted into evidence as exhibit G. That statement provided inter alia:
“I have been employed at P&O Cold Storage Limited as a Storeperson, Leading Hand, and as a Senior Delegate for nearly 13 years. I have worked at P&O Franklins Warehouse since it opened 10 years ago and I am familiar with the duties required as a Picker in the Freezer or Chiller working as needed...I was asked by the Personnel Manager in November 1995 if Hodgess could work in the Pick even though his ankle was not fully recovered. Indicated that in my experience there was a real risk of aggravation of injury if he returned before his ankle was mended...”
In his evidence in chief Mr Smith stated that employees are still around from one area to another depending upon the demand and that for the recent past he had occupied the position of leading hand in the sortation area.
On behalf of the respondent the Court heard from the warehouse manager of the respondent Mr Michael Chain whose prepared statement was admitted into evidence as exhibit H. That statement provided inter alia:
“..I have been with (P&O Cold Storage Limited Franklins Warehouse located at Girraween) since.. 1981. In this time I have been employed as a picker, six years as a leading hand, as well as Manager.. I am fully conversant and experienced with all the work to be carried out by a picker in this large volume, cold storage Warehouse in the Module Picks and Bulk Picks in both the Freezer and Chiller....bulk pickers spend all day assembling orders, stacking product from pick bays into mobile cages or heavy duty trolleys....at times access to the cartons which are of varying weights could be as much as 16-20 kilos, the legs must be straddled to reach the product at the rear of the pallet. This puts the body weight on the front leg. Once the carton is lifted the picker will then proceed to twist the body and transfer the weight of his body to the other leg....in the 13 years I spent working on the floor my experience tells me that a person with an ankle or leg problem that was not 100% would have problems maintaining the required agility to pick orders.. working in the Freezer Rooms (either Bulk or Module) is the same except for the extreme cold temperatures, and having to wear bulky freezer suits in areas with ice/snow...”
In his evidence in chief Mr Chain denied evidence put before the Court on behalf of the applicant as to the work breaks taken during a normal day by all workers but stated that since 1991 freezer workers only have to break every 50 minutes. The Court heard evidence that in the case of an emergency it is possible that a picker may have to scale an iron ladder in order to leave the premises.
On behalf of the respondent the Court heard from Ms Gordana Funda whose affidavit of 17 May 1996 was admitted into evidence as exhibit I. That affidavit stated inter alia:
“..I am the Workers Compensation Officer (of the respondent)..the applicant commenced with (the respondent) on 22 December 1993...(the applicant)..injured himself while working for another employer.. on 18 April the applicant requested ..that he be granted his annual leave and then his sick leave until it ran out.. no medical certificate was provided to explain (the applicant’s) absences from 30 August 1995...in mid October 1995...I told...(the applicant)..that when he was in the possession of a clearance certificate from his (treating) doctor at the end of October, I, on behalf of (the respondent) would organise an appointment for him with (the respondent’s) company doctor, to ensure (he) was fit for duties...At the end of October I received a certificate from (the applicant’s) doctor, Dr Sherry, which stated that (the applicant) was fit for “restricted activities” from 1 November 1995...In the Franklins warehouse, as at the 1st week of November 1995, there were 6 employees in the process of undergoing various duties associated with rehabilitation and retraining. All 6 employees had Workers Compensation Claims with P&) Cold Storage. Of these 6 employees 5 were at work performing suitable duties, one was absent from work, due to limited suitable duties available...At that stage there were no suitable positions for Mr Hodgess given his injury.”
The medical certificate of the applicant’s treating doctor referred to in the affidavit of Mr Funda stated “No prolonged standing and special boots”.
The certificate was dated 20 October 1995 indicated the applicant would be fit to return to work from 1 November 1995. In her evidence Ms Gordana stated she did not offer the applicant a trial period of work and that she did not seek a medical report from the treating orthopaedic surgeon and that the respondent never received a report from any medical representative stating the applicant was fit for normal duties.
On behalf of the respondent the Court heard form Mr Kevin Johnson, whose sworn statement was admitted into evidence as exhibit J. That statement provided inter alia:
“I have been employed at P&O Cold Storage.. as a Senior Manager for 4 years. My present title is Distribution Centre Manager.. I am totally familiar with the duties required of a Picker in the Franklins Warehouse.. I was present at a meeting on 1 December 1995 in my office attended by (the applicant), A.M.I.E.U. New South Wales Branch Union Official, Mr Peter Usher,, Mr C Frize, our Personnel Manager, Mr Phillip Wright, Leading Hand/Delegate and myself to discuss (the applicant’s) request to return to work as a Picker on suitable duties......I was asked by Mr ..Usher if (the applicant) could work in the Pick even though his ankle was not fully recovered. I indicated that in my experience there was a real risk of aggravation in injury if he returned before his ankle healed with medical clearance for normal duties. (the applicant) had steel pins/plates inserted in his ankle.. I discussed this matter with all parties present and examined the last medical report dated 20 October 1995 presented to the Company by (the applicant) which stated “no prolonged standing and special boots” etc I also read the medical report from our medical specialist Dr Haynes dated 20 November 1955 .. (the applicant) did not have a medical certificate stating he was fit for normal duties in this Company, now was there (sic) any indications when he would be fit for normal duties. The Company had also discussed the medical report with the Company doctor, Dr Prucell, who thought the applicant would not be able to work in either the Freezer or the Chiller.....I am well aware of the various duties required of a Picker ...in my experience there is a need for considerable agility and fitness...in the Chiller bulk the temperature is 5 degrees...in the Freezer Rooms with minus 25 degrees the floor may ice up which could make the floor slippy (sic)..at this meeting...someone...carried out an exercise simulating picking which demonstrated strenuous ankle movements..I discussed the matter with my Director ...who...agreed I cold not accommodate (the applicant’s) wish for work with “no prolonged standing” with regular breaks as requested in his medical certificate...it is not practical in this high volume warehouse to provide these conditions ...and any attempt to do so could cause other employees to express resentment of any special treatment....we had considerable difficulty to accommodate our employees (6) with Workers Compensation injuries at our work place...I am also aware of the Company’s obligations under the New South Wales Occupational Health and Safety Act 1983 ...I would not take that risk by exposing (the applicant) to work in the busy warehouse with his ankle problems.. I therefore advised (the applicant) at this meeting that we would accordingly terminate his services from 1 December 1995 and made immediate arrangements to pay him out al his legal entitlements from this ...Company, which he accepted after this meeting. This cheque payment was made up for (the applicant)...and comprised two weeks pay in lieu of notice and accrued annual leave, less taxation deductions, giving a total of $2,018.55. The Personnel Manager then made efforts to obtain work for (the applicant) outside the Company.”
In his oral evidence Mr Johnson told the Court he had a total of 25 years in the warehouse industry. Further, that he was aware that the applicant had obtained the special boots referred to however the applicant had never specifically volunteered that information. Mr Johnson stated that “there is no area for a worker to just sit down.”
On behalf of the respondent the Court heard from Mr Columb Frize whose affidavit was admitted into evidence as exhibit K. That affidavit stated inter alia:
“I am ...the Personnel Manager of (the respondent)...and have held this position for nearly five years...I heard of the (applicant’s) situation when Gordana Funda told me in late October 95 that she had phone calls from him wanting to come back to work when he did not have a medical clearance to say he was fit for his duties...she explained (the injuries) and (that he) required special boots which he wanted us to provide, as well as work with us with no prolonged standing. We had no such position available...I spoke to the Warehouse Manager Sandra Matthews and the Senior Union Delegate John Smith on 30 October 1995 ...I met (the applicant on 3 November 1995 when he produced a medical certificate which did not give him a medical clearance to perform his normal duties...It stated no prolonged standing and special boots required...(the applicant) asked me if he could get a job as a forklift driver. I said with the climbing in and out of a forklift truck numerous times a day it would aggravate his injury. Also it would be a hazard to attempt to drive with a damaged ankle, and I understood (the applicant) did not have a Fork lift licence as required by State legislation...I received a phone call from the A.M.I.E.U. official Mr Gurner who asked me if I would send and pay for (the applicant) to attend a doctor but not our Company doctor. I agreed and after some efforts arrangements were made for (the applicant) to attend a Dr Philip Haynes, an occupational physician on 20 November 1995...This medical examination confirmed that aggravation of his injury in the workplace could not be ruled out...I sent (the applicant’s union) a copy of this (medical) report...A discussion took place with Mr Peter Usher of (the applicant’s union) and myself and Mr Kevin Johnson, Distribution Centre Manager.. with Mr Hodgess and a delegate Mr Wright present on the 1st December 95. The matter was fully discussed. Medical reports were read...I advised those present that I had shown our company doctor Dr Purcell the report from Dr Haynes the previous day when he was conducting medicals on site. Dr Purcell read the report from Dr Haynes and with his knowledge of our work place confirmed there was a risk of aggravation of injury...Mr Johnson then terminated (the applicant) from ..the Company.. as he had been absent for over seven months and we had no indication when (the applicant ) would be fit for normal duties...I then phoned ...(an agency) to seek employment for (the applicant) in a suitable capacity..I sent a letter to (the union) dated 1 December 95 confirming the termination of (the applicant) and our reasons for so doing, and sent a copy of this letter to (the applicant)..when I learned that the applicant had lodged an application for unfair dismissal I then ceased my efforts to obtain him alternative work.”
The oral testimony of Mr Frize added little more to the above.
CONCLUSION
Common ground was reached concerning most of the facts of this application. It is clear that if the accident had occurred whilst the applicant was employed by the respondent the applicant would have had time of from work on Workers Compensation payments for the statutory period. In this case the respondent did not have to pay Workers Compensation payments as the injury did not arise out of the applicant’s contract of employment with the respondent. Had the injury ocurred at work with the respondent, and if the ankle had been presented in the same condition as it was when the applicant sought to re-commence work with the respondent as a picker, then the evidence tends to show the respondent would not have re-employed him in the chiller or freezer sections on the basis that he was medically unfit for work. There is no liability upon the respondent P & O Cold Storage to compensate Mr Hodgess for having sustained an accident per se, however the Industrial Relations Act provides the rules which govern the continuation of the employer/employee relationship which existed between P & O Cold Storage and Mr Hodgess after an accident such as that which befell Mr Hodgess occurred elsewhere. It is the application of those rules to the continuation of that relationship which has to be considered. It is my opinion that the applicant in these proceedings is asking that the respondent accept a partial performance of its original contract of employment because of his injury sustained outside that contract of employment. Nowhere can justification be found for that request.
Date of Termination
In the points of claim filed by the applicant on 1 February 1996 it was alleged the respondent would not permit the employee to resume work on 1 November 1995, and that the respondent purported to terminate the employment of the employee on 30 November 1995 or 1 December 1995.
The applicant claimed compensation on and from 3 November 1995 on the basis that at that time the applicant attended at his place of employment and requested that he return to normal duties as the normal work breaks that occurred during the working day would enable him to comply with the medical restriction placed by his own doctor. The applicant stated Mr Frize declined that request. The evidence presented to the Court showed that further medical examinations took place after that time and a meeting was held on 1 December 1995 when the position was discussed in detail culminating with the termination. Although not fully argued at the hearing it seems the applicant basis his claim for remedy on the earlier date that he presented for work and was turned away. The applicant submitted that from the contents of exhibit 3, the letter of termination, the respondent had formed the view that the applicant’s physical limitations were such that he was unable to perform his normal duties as from 1 November 1995 and that such physical limitation was not temporary. I do not agree with that assertion and find that a better interpretation of the respondent’s words used in exhibit 3, namely, “we had received medical advice on 20 October 1995 from a Workcover Doctor that Mr Hodges was not fit for normal duties but could be employed with the following restrictions...” to be descriptive of the then current medical position and not definitive of the final position. It is a finding of this Court that in light of the background and history of the applicant’s being absent from work the claim for compensation from 3 November 1995 adopts a simplistic approach unfair to the respondent. In support of that finding it is noted in submission that the applicant conceded he was not fit for work in the freezer as a slip could result in further injury. Further, respondent correctly argued the date of termination was not put to the respondent’s witnesses and that the actions of the respondent between 3 November 1995 and 1 December 1995 clearly indicated that it was not the intention of the respondent to terminate the applicant at any time before 1 December 1995. I agree with the proposition submitted by the respondent and find that the date of termination was 1 December 1995.
Did the respondent have a valid reason to terminate the applicant
Section 170 DE of the Act provides:
“170DE(1) An employer must not terminate an employee’s
employment unless there is a valid reason, or valid reasons,
connected with the employee’s capacity or conduct based on the
operational requirements of the undertaking, establishment or service.”
The applicant that “valid reason” was considered by Northrop J in Selvachradran v Peteron Plastics Pty Ltd, unreported, Industrial Relations Court of Australia, 7 July 1994 where it was stated:
“Subsection 170 DE(1) refers to “a valid reason, or valid reasons”, but the Act does not give a meaning to those phrases or the adjective “valid”. A reference to dictionaries shows that the word “valid” has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is ‘Of an argument, assertion, objection, ect; well founded and applicable, sound, defensible: Effective, having some force, pertinency or value.’ In the Macquarie Dictionary the relevant meaning is ‘sound, just or well founded; a valid reason.’
In its context in subsection 170 DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, or spiteful or prejudiced could never be a valid reason for the purposes of subsection 170 DE(1). At the same time the reason 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 each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995, unreported, when considering the construction and application of section 170 DC.
The requirements of subsection 170 DE(1) should not impose a severe barrier to the right of employer to dismiss an employee.”
The respondent submitted the applicant’s inability to perform his duties and the risk of further aggravation of the ankle injury were valid reasons for termination.
I do not agree with the submission of the applicant that the applicant successfully demonstrated he could perform his duties without repetitive twisting of the ankle as that conclusion was not agreed to by the parties present at the meeting held on 1 December 1995 and further it was not established to the satisfaction of the Court that the work breaks the applicant alleged were taken were legitimate and established work breaks - a procedure that could be relied upon. In this regard the evidence of Mr Michael Chain, whose statement was exhibit H was preferred. Accordingly it is a finding of this Court that the respondent did have a valid reason for the termination on the basis of the applicant’s incapacity to perform his tasks with safety.
Was the termination harsh unjust or unreasonable
The applicant sought a declaration that the termination of the employment was harsh unjust or unreasonable. The applicant’s prime submission is that the weight of the evidence supports the contention that his work restrictions would not prevent him from satisfying the inherent requirements of the position of a picker in the chiller from 3 November 1996 and that on the weight of the evidence the dismissal was harsh unjust or unreasonable. Section 170 DE(2) of the Act provides:
“A reason (for termination) is not valid if, having regard to all of the circumstances of the case, including the employee’s capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable.”
The respondent correctly submitted that it is the applicant who bears the onus of proof under Section 170 EDA of proving a breach of subsection 170DE (2) of the Act by the respondent. The applicant submitted that the decision of Lee J in Winter v Australian National Hotels Ltd, unreported, 25 October 1995, Industrial Relations Court of Australia 574 of 1995, is of assistance when determining whether, on specific facts, the actions of an employer are reasonable in respect of the employment, or termination of employment, of an employee who has a disability which is not related to his work with that particular employer. In that case the central issue for determination was whether the applicant’s employment was terminated at the initiative of the employer in or about September 1994. The terms of Mr Winter’s employment were recorded in a letter of employment signed by the applicant, the relevant parts which read as follows:
“Rostering
You are required to make yourself available to work any roster (eg night shift/day shift or alternative days of the week) in the future. You may spend lengthy periods of time on one specific shift. This is not to be taken to be a permanent condition in your contract.
All other conditions of employment shall be in accordance with the Hotels, Resorts and Hospitality Industry Award 1990 and subject to the observance of all Company policies and regulations as outlined in the Staff Handbook which was provided upon commencement.”
No evidence was adduced by either party as to the contents of the Award or the Staff Handbook referred to in the letter. It was agreed that Winter’s duties included maintaining general security in the Casino area and enforcing standards of dress and sobriety on the Casino premises.”
As with the case of Mr Hodgess, the applicant Winter at the time the matter was before Lee J no longer sought an order that he be reinstated in his employment. At the time of the commencement of the employment Mr Winter had been treated for, and was recovering from, cancer of the thyroid and was taking medication. The treatment for his condition depressed the operation of the salivary glands causing a dry throat and hoarseness, and sensitivity in his throat and eyes to irritation from smoke. His Honour stated:
“At (all) material times National Hotels had the capacity to arrange the duties of its employees to accommodate Winter’s inability to work in the discotheque area. National Hotels became concerned about its exposure to liability to Winter for breach of a duty of care and wanted to terminate Winter’s employment as a security officer unless Winter was able to provide a medical practitioner’s opinion that exposure to tobacco smoke levels present in the discotheque premises would not cause Winter any harm...As at 9 September 1994 National Hotels was not prepared to offer Winter any employment as a security officer if he could not supply a medical certificate that stated there was no reason why he could not be employed in the discotheque. Up to that time it was within the bounds of the contract of employment, and reasonable for the employee to expect, that the employer would assign duties amongst the security staff as may be necessary from time to time to meet the reasonable requirements of a particular employee. That was being done in Winter’s case until 8 September 1994 and there was no operational reason obliging the employer to alter that situation. As long as Winter was not assigned to the discotheque no question was likely to arise as to the breach of any duty of care owed to him as an employee if the possibility of such a breach was the employer’s principal concern. The reasonable course of the employer to have followed in the circumstances was to have maintained the status quo, perhaps requiring Winter to obtain a medical prognosis as to how long the treatment he was receiving would require him to be removed form exposure to high tobacco smoke levels in confined spaces and to determine whether that period posed any problem for the delivery of the necessary level of service by its security staff...Either actually or constructively, National Hotels had brought the employment relationship to an end by failing to remove the condition it had imposed, being a condition that departed from the terms of the contract of employment, and by withdrawing from Winter the opportunity to be employed under that contract.”
The case of Mr Winter is distinguishable from the present case as the respondent National Hotels sought to alter the status quo and to change the working conditions adhered to previously. On that basis his Honour found that the respondent ended the contract of employment. In Mr Hodgess’ case the applicant sought to continue the contract on a different basis from that which it had been prior to the accident in that rest breaks, sitting down facilities, no prolonged standing, were requirements of the applicant only after the accident. In Mr Winter’s case the operational requirements of the undertaking would allow for his working in places that would not aggravate his injury. In Mr Hodgess’ case, there was no such margin available. Accordingly it is finding of this Court that the applicant has not discharged his burden to show the termination was harsh and unjust or unreasonable.
The applicant in his amended Statement of Claim and in final submissions alleged that the respondent breached subsection 170 DF(1)(a) and (f) in the terminating of the employment. That section provides that an employer is not to terminate an employee on certain grounds. Subsection (a) of 170 DF(1) provides that one of those grounds prohibiting termination is:
“ (a) temporary absence or injury”
and Subsection (f) of 170 DF provides a further ground is:
“(f) ...physical or mental disability...”
The fact that the applicant may or may not have been dismissed for temporary absence or injury was not put to the respondent during the hearing and so there is no factual evidence upon which a finding can be made. The evidence shows the applicant was terminated as he was unable to perform his allotted tasks. It is not correct now to suggest the Court make a finding against the respondent on the basis of Section 170 DF(1)(a) without allowing the respondent to be heard on the matter. The meaning of the word “temporary” and the understanding of both parties as to that meaning would have to specifically dealt with and it was not. However I discount the submission by the respondent that somehow the applicant was not on authorised leave, in that the applicant may have omitted to forward an intervening medical certificate during his absence, as it is clear that the respondent knew the circumstances and conditions of the applicant’s absence from work and took no positive steps to clarify the position until the applicant approached and sought re-employment.
In written submissions the applicant set out four grounds as reasonable options available to the respondent. Those were first that the applicant should have been allowed to return to his normal position on a trial basis. I can see no difference between a trial basis and a permanent position - the inherent risks are the same and the applicant would be potentially as much at risk. As to whether it is reasonable to risk an aggravation of the applicant’s injury during such a trial period, the respondent relied on a decision of Marshall J in Patterson v Newcrest Mining, (21 December 1995, unreported, Industrial Relations Court of Australia). In that case the applicant was terminated by a letter from the employer that stated inter alia:
“As per our previous discussion on ...the reason for your termination is that you are no longer capable of fulfilling your work obligations as a Trades Assistant in the Light Vehicle Workshop...the specialist report and work place study conducted ...to assess the physical demands of your duties as a trades assistant are conclusive in that due to the degenerative changes in your lumber spine you cannot not, nor with ongoing medical treatment be able to fulfil your duties in the future.”
His Honour stated further:
“I am most reluctant to order the reinstatement of an employee to his or her former position if so doing involved a real and substantial risk of the employee being seriously injured upon her or his return to the position occupied prior to the termination of employment.”
Secondly the applicant submitted he should have been required to obtain from a specialist a medical prognosis as to when work restrictions would be lifted. The respondent, at the request of the applicant, obtained an independent medical opinion from Dr Haynes, the last line of which stated: “Of course an aggravation in the workplace by a further fall could not be ruled out.” Accordingly it is felt that as a fall could occur at any time, the inherent weakness remaining a permanent factor, an estimate of time in all probability would not be possible. I discount the submission that the respondent should have required the applicant to obtain an estimate of time as such a requirement, on the facts before the Court, was not capable of being fulfilled.
The applicant submitted he should have been granted further leave without pay. In reply the respondent stated that this matter was never sought by the applicant or his representatives prior to termination. I agree with that analysis of the facts before the Court, and note that no authority is cited in support the requirements on a respondent to extend the time of leave without pay. Fourthly the applicant submitted that the respondent could have arranged the duties of the applicant to accommodate the applicant’s situation for a period of time. I agree with the
submission in reply of the respondent that the affidavit of Ms Gordana Funda, exhibit I, indicates that no light duties were available at the time, and the evidence of Mr Frize supported the fact that the applicant would not be suited to driving a forklift vehicle. With regard to the provision of light duties while employees are recovering from accident, it is sound business practice that an employer has a priority to provide light duties to employees whose injuries arise out of work-related accidents over employees whose injuries arise out of separate contracts of employment.
It cannot be overlooked that if the respondent had decided not to terminate the applicant’s employment on 1 December 1995 and had allowed him to return to work given the medical opinions of Dr Haynes and Dr Purcell, and possessing the knowledge that it did about the actual work performed by the applicant and the physical demands that would have been placed on him, the respondent would have been potentially in breach of the Occupational Health and Safety Act, (NSW). The Industrial Relations Act in no way ousts the respondent’s obligations or liabilities in that regard.
On the basis of the findings above this Court dismisses the application of Mr Hodgess for relief under the Industrial Relations Act.
However it was conceded by the respondent, that the applicant, Stephen Hodgess, is entitled to the loading on annual leave in accordance with Clause 16.9 of the Cold Storage Enterprise Arrangement 1994 Award and it is the second Order of this Court that those monies be paid within 28 days of the date of this judgment.
I certify that this and the twenty-one (21) previous pages are a true and correct copy of the reasons for decision of Judicial Registrar Tomlinson as recorded in the transcript and revised by the Judicial Registrar.
Associate: J A Liston
Date: 4 JUNE 1996
Appearances
Applicant
Representative: Ms Faye Robinson
Australasian Meat Industry Employees Union
Respondent
Representative: Mr Anthony Britt
Australian Chamber of Manufacturers
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