William Henry Winter v Australian National Hotels Ltd

[1995] IRCA 574

CATCHWORDS

INDUSTRIAL LAW  -  TERMINATION OF EMPLOYMENT  -  casual employee removed from rostered duties until declared fit to carry out all duties  -  had not been required to do that work previously because of disability  -  whether termination at the initiative of the employer.

Industrial Relations Act 1988 ss 170DE, 170EA, 170CC, 377; sub-ss 170DE(1), 170EE(2); paras 170EDA(1)(a), 170EDA(1)(b)

McCarry, "Constructive Dismissal of Employees in Australia" (1994) 68 A.L.J. 494

Association of Professional Engineers, Scientists and Managers Australia v. David Graphics Pty. Limited, (Unreported) Industrial Relations Court of Australia, 12 July 1995
Association of Professional Engineers, Scientists and Managers Australia v. Skilled Engineering Pty. Ltd. (1994) 122 A.L.R. 471
Grout v. Gunnedah Shire Council (1994) 125 A.L.R. 355
Nicolson v. Heaven & Earth Gallery Pty. Ltd. (1994) 126 A.L.R. 233
Siagian v. Sanel Pty. Limited (1994) 122 A.L.R. 333
Witcher v. Griffin Press Ltd. (1982) 46 I.R. 47

WILLIAM HENRY WINTER V. AUSTRALIAN NATIONAL HOTELS LTD.
TI94/0193R

LEE J.
CANBERRA
25 OCTOBER 1995

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA  )
TASMANIA DISTRICT REGISTRY        )   NO. TI94/0193R

B E T W E E N:  WILLIAM HENRY WINTER

Applicant

and

AUSTRALIAN NATIONAL
  HOTELS LTD.

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:    LEE J.

DATE OF ORDER:    25 OCTOBER 1995

WHERE MADE:    CANBERRA

THE COURT ORDERS AND DECLARES THAT:

1. The applicant's employment was terminated by the respondent in or about September 1994.

1. The termination of the applicant's employment contravened s.170DE of the Act.

1. Reinstatement of the applicant in his employment being impracticable, there be liberty to apply to have the matter relisted for purpose of determining the appropriate amount of compensation to be paid under s.170EE of the Act.

Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA  )
TASMANIA DISTRICT REGISTRY        )   NO. TI94/0193R

B E T W E E N:  WILLIAM HENRY WINTER

Applicant

and

AUSTRALIAN NATIONAL
  HOTELS LTD.

Respondent

CORAM:     LEE J.
DATE :     25 OCTOBER 1995
PLACE:     CANBERRA

REASONS FOR JUDGMENT

This is an application under s.377 of the Industrial Relations Act 1988 ("the Act") to review a decision of a Judicial Registrar ("the Registrar") which dismissed the applicant's claim under s.170EA of the Act in respect of the termination of the applicant's employment.

The review was conducted as a hearing de novo under which the applicant ("Winter") and the employer ("National Hotels") presented their entire cases anew.  Winter appeared on his own behalf and National Hotels was represented by counsel.

National Hotels is the owner and operator of Wrest Point Casino in Hobart ("the Casino"). Winter commenced employment as a uniformed security officer at the Casino on about 10 December 1993. Winter and his fellow security officers were employed as casual staff but there was an understanding between National Hotels and the officers that a minimum of 32 hours work per week would be provided by the employer on a regular roster. As the terms of his engagement included an expectation that he would have continuing employment with National Hotels reg.30B(3) of the Industrial Relations Regulations did not apply to Winter to exclude him from the operation of Pt.VIA Div.3 of the Act. (See: s.170CC of the Act.)

The central issue for determination on the review hearing was whether the applicant's employment was terminated at the initiative of the employer in or about September 1994.  At the time of the review hearing Winter had commenced business on his own account and no longer sought an order that he be reinstated in his employment.

The terms of Winter's employment were recorded in a letter of employment (Exhibit 8) signed by Winter, 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.

Winter stated that he was normally rostered to work on Thursday, Friday and Saturday evenings on 8-hour shifts usually beginning at around 7.30 p.m. and finishing at around 3.30 a.m.  Some shifts would start and finish at later hours.

There were four defined areas to be patrolled by uniformed security staff being the foyer or entrance hall, the Casino, a bar area, and the discotheque.  There were usually eight or nine uniform security staff on duty on weekends and three to five on duty on other nights.

At the time his employment commenced Winter had been treated for, and was recovering from, cancer of the thyroid and was taking medication.  In May 1994 Winter was required to undergo radiotherapy treatment which obliged him to go off duty for approximately four weeks.  Winter gave evidence that the treatment was undertaken on 6 May 1994 but the employee time sheets maintained by National Hotels, show that Winter worked until 18 May 1994 and returned to duty on 20 June 1994.

Before the radiotherapy treatment was administered Winter was required to suspend his medication for a period of weeks before the radioactive substance was introduced to his system.  Cessation of the medication depressed the operation of his salivary glands causing a dry throat and hoarseness, and sensitivity in his throat and eyes to irritation from smoke.  Winter said that in March 1994 he explained those circumstances to the Security Manager ("Estcourt") and the Assistant Security Manager ("Best") and asked that he be excluded from patrol in the discotheque which had a higher level of ambient tobacco smoke than other areas.  He said he obtained their approval to exclude the discotheque from his area of duty.  Best gave evidence that Winter came to him and said he would have to suspend his medication before going to hospital for treatment but did not say that Winter asked to be excused from duty in smoke-laden areas.  He said that when Winter returned to work after his medical treatment Winter had asked to be placed in a quieter area because he was concerned that he may be punched in the throat or grabbed around the neck in the course of his duties.  Best said that it was for that reason that Winter's duties did not include the discotheque.  This arrangement continued for approximately four to five weeks and then Winter was returned to duty in all areas.  Best said that other uniformed security officers had expressed discontent at Winter excluding the discotheque from his duties and, therefore, Winter had been re-assigned to those premises.

Estcourt stated that when Winter returned to work after medical treatment he was quite frail and asked to be put in a quiet area where he would be less likely to become involved in an altercation.  Estcourt, however, confirmed Winter's evidence that Winter had not been returned to duty in the discotheque by 8 September 1994.  The General Manager of the Casino ("Rudge") gave evidence that in about August 1994 he became concerned that National Hotels may have been in breach of its duty of care to Winter to provide him with a safe working environment by requiring him to work in areas with a high ambient smoke level.  Rudge understood that Winter had not worked in the discotheque some months prior to 8 September 1994 and that he had not done so because he had a problem with the smoke in that area.

Winter called evidence from two security officers who were fellow employees of Winter in 1994.  One officer, Hitchens, gave evidence that Best had informed him that Winter would not be working in the discotheque area because of the level of smoke in that location and that other officers rostered on duty with Winter would cover that area.  Hitchens had no complaint with that allocation of duties and was not aware of any discontent expressed by co-officers.  The other officer, Hanlan, gave evidence that he was aware that Winter, because of his illness, was not required to work in the discotheque, a "smoke saturated" area.  Hanlan had no complaint with the employer's restriction of Winter's duties and was not aware of any complaint from any other officer in that regard.  Hitchens ceased employment at the Casino in July or August 1994 and Hanlan ceased in mid July 1994.

Winter said that on or about 12 August 1994 he handed to Best a handwritten report from his oncologist, Mr Ward, which stated that Winter's condition required him to avoid exposure to tobacco smoke at all times.  Winter said Best read the report and returned it to him.  Best denied reading the report.  I am unable to determine whether the report was read by Best at that time but I am satisfied that Winter's rostered duties did not include being stationed in the discotheque between 20 June 1994 and 8 September 1994.

I was not impressed by Best as a witness who appeared to be less than forthcoming in his evidence.  For example, an issue arose in the course of the trial as to whether Best had used the surveillance cameras to observe the movements of Winter whilst Winter was on duty on the evening of 7 September 1994.  Best denied that he had done so and gave evidence to support that denial that the surveillance camera controls and monitor screens were situated in a dedicated surveillance room separated from the office in which Best worked.  In cross-examination, however, Best agreed that the office of the security managers housed another set of camera controls and monitors.  Best would have been well aware of that fact.  Furthermore, Best agreed that all objects viewed by the movements of the surveillance cameras were recorded on videotape.  When Best was challenged by Winter as to the use Best had made of the cameras on the night of 8 September 1994, the issue could have been settled forthwith, and thereafter, by displaying the relevant tape.  Best offered no explanation as to why that course was not followed.

On the evening of 23 August 1994 Winter took ill whilst travelling to the Casino to commence work.  He had a blackout, was taken to hospital, was admitted as a patient and was discharged on the following day.  Winter returned to work on his next rostered day which was 26 August 1994.  Winter did not explain his failure to report for duty on 23 August 1994 until he returned to work on 26 August 1994.  On 30 August 1994 Estcourt summoned Winter to his office and informed him that an incident report had been written on Winter's failure to inform the Casino promptly of the reason for his absence from duty on 23 August 1994.  Estcourt informed Winter that he was giving him a "first and final warning".  No request was made to Winter that he present a report on the matter from a medical practitioner or the hospital.

I am satisfied that as at the end of August 1994 some friction had developed in the working relationship between Winter and his immediate superiors, Best and Estcourt, for reasons not disclosed in the evidence presented at the hearing.  Winter stated that all three had been fellow officers in the Tasmania Police Force at an earlier time.

Whatever the problem was in the relationship between Best and his superiors it came to a head on the evening of 7 September 1994.  Whilst on duty Winter became convinced that he was being subjected to camera surveillance by Best throughout his shift.  Winter challenged Best about the matter and informed Best that he had had enough, that he intended to contact his union and that he was ceasing his shift there and then.  Best asked Winter if he was terminating his employment to which Winter replied that he would be returning to his rostered duty on 9 September 1994.  Although such conduct by Best may be regarded as unlikely it was not in issue that Winter believed that Best did so act and the material does not establish that Winter's belief lacked a rational foundation.  As indicated earlier the issue could have been put to rest by examining the recordings made by the security cameras but that action was not taken.

On 8 September 1994 Winter contacted his union and on 9 September 1994 a meeting took place in Rudge's office attended by Rudge, Winter, the Union Secretary, Estcourt and National Hotels Human Resources Manager Ms Langridge.

Perhaps surprisingly, the matter of Winter failing to complete his shift in the early hours of 8 September 1994 was not the principal issue discussed.  Rudge said in evidence he was anxious to resolve the differences between National Hotels staff and Winter and did not consider it fruitful to conduct a detailed examination of the causes of the incident.  That course tends to suggest that Rudge may have considered that a personality clash between Winter and his immediate superiors may have been responsible for the confrontation on the day before and that good management would not be served by dwelling on it.  At that meeting Rudge heard that Winter had been given a "first and final warning" in respect of the failure to attend for duties on 23 August 1994.  Rudge advised Estcourt that he considered such a formal warning to Winter to be unreasonable and directed that Winter supply a certificate that confirmed he had been admitted to hospital at short notice.

The principal concern Rudge held with regard to Winter's employment was whether Winter was fit to carry out the duties of a security officer, in particular, whether Winter's inability to work in the discotheque because of ambient smoke levels made Winter unfit for the duties of his job.  The outcome of the meeting was an instruction from Rudge that Winter was not to be rostered for any duties until he produced a medical certificate stating that he was fit to return to full duties which included the discotheque.  In his evidence Rudge confirmed that the effect of the conditions set by him at that meeting was that Winter would not continue in employment as a uniformed security officer unless he was declared fit to work in the discotheque.  Rudge was the officer who had responsibility for the termination of the services of the staff of National Hotels.

On 14 September 1994 Winter provided to National Hotels a certificate dated 13 September 1994 confirming that he had been admitted to hospital on the evening of 23 August 1994 and a certificate of the same date from a Dr McMillan stating that Winter was fit to carry out the duties of a security officer.

On 16 September 1994 Winter was rostered to resume his duties.  He was advised by Ms Langridge that the duties included working in the discotheque.  Winter refused to return to work on those terms.  Later in September 1994 Winter lodged a complaint with the Human Rights and Equal Opportunity Commission which alleged that he had been the subject of discrimination in his employment by reason of his disability.  On 24 October 1994 Winter commenced his claim in this Court in respect of the termination of his employment.

On 26 September 1994 National Hotels Industrial Relations Manager Durkin ("Durkin") drafted a letter to Winter's oncologist, Mr Ward.  Because of Winter's complaint to the Human Rights and Equal Opportunity Commission the letter was not sent to Mr Ward until 29 November 1994.  The letter sought a statement from Mr Ward as to whether Winter was able to work in the discotheque having regard to National Hotels duty as employer to provide Winter with a safe place of work.  On 2 December 1994 Mr Ward responded by stating that it was his opinion that the side effects of the treatment administered to Winter would be exacerbated if he were exposed to high ambient levels of tobacco smoke in a confined space.  He did not regard the smoke level likely to be encountered in a large public area as a problem but did consider the discotheque likely to be a confined space with high smoke levels.  Mr Ward stated that subject to that proviso he considered Winter to be fully fit to continue his duties as a security guard as stated by Dr McMillan in his certificate of 13 September 1994.  Mr Ward suggested that National Hotels have the discotheque premises assessed by a specialist in occupational medicine.

At no time after 9 September 1994 was Winter offered work on the terms that had applied until 8 September 1994.  National Hotels contends that it did not terminate Winter's services and that Winter acted to terminate the employment relationship.

The salient facts appear to me to be as follows.  At 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 the tobacco smoke levels present in the discotheque premises would not cause Winter any harm.  I am not satisfied that this action was forced on the employer by the level of discontent expressed by Winter's co-workers.  To the contrary, I consider that as at 9 September 1994 that was not a major problem for National Hotels in the management of its staff.  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 for 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 from 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.  Furthermore, whilst maintaining the status quo it would have been appropriate for National Hotels to undertake the step suggested by Mr Ward in his report of 2 December 1994, namely, to have the "discotheque assessed by a specialist in occupational medicine".  Any improvements suggested by that assessment may have satisfied the requirements of Winter's medical practitioner and moreover secured the better observance by National Hotels of its duty of care to all staff, including the security officers.

Although National Hotels stated through its counsel that if asked it would have been prepared to offer other employment to Winter, that was not advised to Winter at the time the condition was imposed.  I am satisfied that Winter correctly understood from National Hotels' actions that unless he obtained approval from his medical practitioner to work in the discotheque whilst his medical condition was being treated, his employment as a security officer at the Casino was terminated.  As at 26 October 1994 Winter had been advised by Mr Ward that his employment should avoid areas such as the discotheque and his understanding as at that date that National Hotels had terminated his services as a security officer was correct.  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.  (See:  Witcher v. Griffin Press Ltd. (1982) 46 I.R. 47; Association of Professional Engineers, Scientists and Managers Australia v. David Graphics Pty. Limited, (Unreported) Industrial Relations Court of Australia, 12 July 1995, Wilcox C.J. at 3 and 5. See also: McCarry, "Constructive Dismissal of Employees in Australia" (1994) 68 A.L.J. 494.)

The termination of the employment relationship was not an independent act of the employee Winter, it was the intended outcome of the employer's stipulation in relation to the employment relationship if Winter was unable to meet the condition National Hotels had imposed.  (See:  Siagian v. Sanel Pty. Limited (1994) 122 A.L.R. 333 at 371; Association of Professional Engineers, Scientists and Managers Australia v. Skilled Engineering Pty. Ltd. (1994) 122 A.L.R. 471 at 482; Grout v. Gunnedah Shire Council (1994) 125 A.L.R. 355 at 372.)
Pursuant to sub-s.170DE(1) of the Act an employer must not terminate an employee's employment unless there is a valid reason connected with the employee's capacity or conduct, or based on the operational requirements of the undertaking, establishment or service. Paragraph 170EDA(1)(a) provides that a termination is to be taken to have contravened s.170DE unless the employer proves that there was a valid reason of the kind referred to in sub-s.170DE(1). Notwithstanding para.170EDA(1)(a), under para.170EDA(1)(b) a reason is not valid if, having regard to the employee's capacity and conduct and the operational requirements, the employee proves that the termination is harsh, unjust or unreasonable.

In the present case National Hotels did not attempt to discharge the onus cast upon it by para.170EDA(1)(a).  Its case was that it had not terminated the employment of Winter and that it was Winter who had brought the employment to an end.  It should be noted that the conduct of Winter on the night of 7 September 1994 was not the reason for termination of Winter's services and was not a ground on which the employer relied in the hearing.

I am satisfied that it has not been shown that a valid reason existed for the termination of Winter's employment and that if it could be said that there was a valid reason connected with Winter's capacity the circumstances set out above show that in all the circumstances the termination for that reason was unreasonable, the employer having elected to adduce no evidence as to the reasonableness of its conduct in that regard.

It follows, therefore, that under s.170EA of the Act Winter is entitled to a remedy provided by the Act and under sub-s.170EE(2) the Court may order the employer to pay such compensation as the Court thinks appropriate, it being agreed that the reinstatement of Winter at this time is impracticable. The appropriate amount of compensation to be awarded is to be assessed by having regard to what would have occurred had the termination not been effected in the manner and at the time that it was. (See: Nicolson v. Heaven & Earth Gallery Pty. Ltd. (1994) 126 A.L.R. 233 per Wilcox CJ at 246.)

The parties agreed that if the matter of compensation fell to be determined the parties should attempt to resolve that question, with liberty to apply to the Court for the matter to be relisted if necessary.  An order will be made accordingly.

I certify that the preceding sixteen (16) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.

Associate:
               Date:

APPEARANCES

Applicant appeared in person.

Counsel for the Respondent: K.B. Procter

Solicitors for the Respondent: Murdoch Clarke Cosgrove & Drake

Date of Hearing  :  4 August 1995
Date of Judgment :  25 October 1995