WIllson v Traikbridge Pty Limited
[1996] IRCA 410
•22 Aug 1996
DECISION NO: 410/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 4365 of 1995
BETWEEN:
Gregory James WILLSON
Applicant
AND
TRAIKBRIDGE PTY LIMITED (A.C.N. 008 605 301)
trading as C.F.M KITCHENS
Respondent
BEFORE: Judicial Registrar LINKENBAGH
PLACE: SYDNEY
DATE: 22 AUGUST 1996
REASONS FOR DECISION
Delivered ex tempore and revised from the transcript
This is an Application pursuant to the provisions of Section 170EA of the Industrial Relations Act, 1988 in which the applicant by an Application filed in the Court on 9 November 1995 seeks a remedy in respect of the termination of his employment by the respondent. He commenced employment with the respondent on 28 August 1994 and the last date that he worked with the respondent was 30 July 1995.
The applicant was employed as a cabinet maker according to his Application but the evidence shows that he worked in the part of the respondent's factory which was dedicated to the construction of bench tops for kitchens to be installed in domestic premises in Canberra.
There is no issue taken with the quality of the performance by the applicant of his duties for the respondent. What brought his working life with the respondent to an end effectively was that he sustained injuries at work on 31 July 1995, being a rotator cuff tear injury to his left shoulder and a thoracic sprain injury. The applicant was treated at hospital that day and was certified unfit for work. Over the next couple of months the applicant sought treatment from his own doctors and provided the respondent with medical certificates from time to time.
The most significant of those medical certificates is a certificate of Dr Azam which is part of Exhibit “A3”. That certificate indicates that the applicant was examined by the doctor on 6 September 1995 and the doctor certified that he was unfit for duty thereafter until 3 October 1995. I accept the applicant's evidence that he forwarded that certificate to the respondent by mail. The respondent's witness, Mr Schiller, acknowledged receipt of that certificate although there is no evidence of the actual date of the receipt of the certificate. I am satisfied that Mr Schiller did receive the certificate not long after 6 September 1995.
The applicant made a Workers Compensation claim in respect of the injuries and Manufacturers Mutual Insurance Limited was the Insurer. That company notified the applicant that he was required to attend an examination by Dr Colin Moore in Sydney on 22 September 1995.
The applicant attended that examination and I accept the applicant's evidence that during that examination Dr Moore informed him that his services with the respondent had been terminated. The information itself and the fact that it came from Dr Moore were something of a surprise to the applicant and he contacted Mr Schiller. I find that that contact was by telephone on Wednesday 27 September 1995 and I accept the applicant's recollection that there were two telephone conversations between himself and Mr Schiller on that day. In the first of those telephone conversations Mr Schiller informed the applicant that his employment had been terminated because of Mr Schiller's perception that there was a risk of further injury to the applicant if he were to continue with his employment. In the second of the telephone conversations Mr Schiller informed the applicant that his position had been made redundant and that that was an additional reason for the termination of his employment.
During the second telephone conversation it was agreed between Mr Schiller and the applicant that in order for the applicant to be entitled to payments of severance pay, pursuant to Clause 14A.3 of the Building and Construction Industry ACT Award, 1991, Mr Schiller would have to be satisfied that the applicant was in fact fit for work. At that time Mr Schiller was in possession of a Medical Certificate which showed that the applicant was unfit for work and it was estimated that he would be unfit for work until 3 October. He requested the applicant to obtain a Certificate indicating that he was presently fit for work. The applicant agreed to do so and on 29 September the applicant saw the Erindale Immediate Health Care Medical Centre and obtained a certificate from Dr Don Curtotti to the effect that:
"The left shoulder injury is now resolved and he can return to full duties from 29 September 1995."
The applicant provided that certificate to the respondent on 29 September and subsequently received payment of moneys due to him in respect of the termination of his employment, including the equivalent of four weeks pay as severance pay. I find that the applicant on 29 September indicated to Mr Schiller verbally that he was not happy with the position in which he had been placed.
The evidence of the applicant and Mr Schiller is in conflict as to whether or not the two men spoke at all on 29 September. The applicant says that there was no conversation; that he saw Mr Schiller at the factory premises but did not speak to him. Mr Schiller's evidence is that he not only saw the applicant but spoke to him, sighted the Medical Certificate and indicated to the applicant that he would make the necessary arrangements for payment of the money due to him. I am satisfied that the applicant and Mr Schiller did have a conversation at the factory on 29 September. My finding about that is significant also in relation to the question of the extension of time for filing of this Application.
The applicant, after 29 September, sought advice from his Union as to what might be described, for want of a better term, as his “rights”. He obtained documents from, on his evidence, the Australian Industrial Relations Commission, and those documents included the form of Application to the Court which is appropriate in proceedings of this kind. The Application indicates that it was signed by the applicant on 16 October 1995. His evidence is that he posted it to the Court in Sydney. The document was filed in the Court on 9 November 1995.
If I had been satisfied that there had been written notice of the termination of the employment given by the respondent to the applicant, then the applicant was obliged by the provisions of Section 170EA (3) to file his Application within 14 days of receipt of the written notice of termination. As I have said the interchange between Mr Schiller and the applicant on 29 September is significant in this regard. Mr Schiller's evidence is that on 27 September he prepared a letter which he anticipated handing to the applicant on 29 September when the applicant came to the factory to furnish the Medical Certificate to which I have already referred.
There is nothing in evidence before me which constitutes written notice of termination and that is perhaps of an oversight on the part of the representative of the respondent. There was a document marked for identification but that document was not put in evidence before me. I am left, in regard to the provision of written notice, with Mr Schiller's evidence that he handed a letter to the applicant on 29 September; that that letter was dated 27 September and that it informed the applicant in writing of the termination of his employment. The applicant asserts that he did not receive the letter on that day or at all and that the first time he saw the letter was in the course of these proceedings when it was shown to him by his solicitor. I note that when the applicant completed his Application for relief in the proceedings he responded to question 11 which is:
"Were you given a written notice of termination?"
by ticking the box marked "No". That supports the view that the applicant had not in fact received written notice of the termination. He completed and lodged the Application himself and I think that it is reasonable to presume that had he been in possession of anything on 16 October which had the character of written notice, he would not have answered question 11 in the way that he did.
I am not satisfied that written notice was handed to the applicant, as Mr Schiller states in his evidence, on 29 September. In any event, I must say that even if written notice had been given and even if that written notice were in evidence before me, given the principles that the Court has espoused in decisions such as that of Beazley J in Turner -v- K. and J. Trucks Pty Limited, Beazley J, (Unreported) Judgment No.360/95, 10 August 1995) I would have no difficulty in deciding that in this case it was appropriate to grant the Application for extension of the time for filing the Application.
The Application was filed 41 days after the date on which it is alleged written notice was given, that being 27 days outside the time limit allowed by Section 170EA(3). That is not a long delay. The applicant has offered an explanation of his inaction to which I have already referred. There is no evidence before me of any prejudice suffered by the respondent in relation to the delay in filing of the Application. That is not to say that the parties would not have suffered some prejudice by the delay in the progress of the matter since the filing of the Application, but that is another matter. Also the substantive merits of the Application must be relevant in any consideration of the granting of an extension of time to institute the proceedings in the first instance and I am of the view that this Application has merit. For all of those reasons I propose to grant the Application for extension of the time for filing of the Application to 9 November 1995.
Turning then to the substance of the matter, the respondent's case is that there was a valid reason for the termination of this employment and that that valid reason related to the operational requirements of the respondent's business. I have great difficulty in accepting that that was genuinely the reason for the termination of this employment. I have already referred to the fact of Dr Moore having told the applicant that his employment had been terminated. That puts the decision to terminate the employment at some time before 22 September 1995. The reasons asserted by Mr Schiller on 27 September were firstly the question of his assessment that the applicant in resuming duties would be exposed to risk of further injury, and secondly, the question of the redundancy. Looking first at the decision by Mr Schiller to terminate on the basis of the injury or the risk of further injury, that is an opinion which Mr Schiller formed. Regrettably for him, that is a view that is contrary to the medical evidence which was available to him at that time.
If Mr Schiller was to form that view one would have thought that he would rely upon medical evidence. Dr Moore had examined the applicant on 22 September. The results of that examination are not in evidence before me. What Mr Schiller had by way of medical information at that time on the evidence before me is the two medical certificates to which I have referred, one of which said that the applicant was unfit until 3 October and the other of which, dated 29 September, indicated that the applicant was fit to resume full duties on that day. That medical opinion flies directly in the face of Mr Schiller's assertion that the return to full duties would involve some risk of further injury. The prudent course for Mr Schiller to have adopted in the circumstances would surely have been for him to seek some further expert opinion before coming to the conclusion to which he came in relation to the likely risk of further injury. In addition to the medical evidence, I note Mr Schiller's evidence that when the applicant phoned him on 27 September the applicant said to him that he was fit to resume duty. That was said by the applicant before Mr Schiller informed the applicant that the applicant's services would be terminated.
The second reason asserted by the respondent for the validity of the termination was to do with the alleged redundancy. There is no doubt that there is some evidence before me that other employees in the respondent's organisation were retrenched in August and September of 1995 and it may well be that the applicant's position was one which might properly have been targeted for redundancy at that time. The difficulty for the respondent is, however, that it did not follow the procedures set out in clause 14A of the relevant Award. Those procedures are along the same lines as the pronouncements by this Court in relation to the affording of procedural fairness to employees in redundancy situations. There is not only no evidence that the procedures were followed but there is Mr Schiller's admission, a very frank and honest admission I must say, that he did not consult with the applicant about the possibility of the applicant's position becoming redundant.
I am therefore not satisfied that there was a valid reason based on the operational requirements of the enterprise. If I am wrong in that, and there was a valid reason, then certainly the failure to follow the procedures set out in the Award and the requirements of the law as set out in decisions of this Court in relation to procedural fairness would make the termination otherwise harsh, unjust or unreasonable. I therefore find that the respondent is in breach of Section 170DE(1) of the Act.
I also find that the respondent is in breach of Section 170DF(1)(a) in that the termination of this employment included one of the prohibited reasons set out in Section 170DF(1), that is, a temporary absence from work because of illness or injury. I make that finding for the reasons that I have already indicated in relation to the formation of the view by Mr Schiller that the applicant's injury precluded him from continuing on with this employment.
I note also in relation to the genuineness of the stated reasons of the respondent for the termination of the employment that Mr Schiller's evidence was that where an employee is in receipt of Workers' Compensation benefits, the usual practice of the respondent is that the respondent pays the usual wages to the employee and is then reimbursed by the Insurance Company. Mr Schiller's evidence is that that usual practice is only varied by way of directing the Insurance Company to pay benefits direct to an employee where the employee is totally incapacitated and not likely to return to work. There is in evidence Exhibit “B2”, which is a letter from the respondent to the Insurance Company directing it to make payments direct to Mr Willson from 19 August 1995. Taking that Exhibit with Mr Schiller's evidence, the conclusion must be drawn that as the date that letter, which was 16 September 1995, Mr Schiller viewed the applicant's employment as being at an end.
Turning then to the question of remedy, reinstatement is the primary remedy which the Court may grant. I note that the applicant's evidence was that he as at October 1995 wanted a job in Sydney and Exhibit “F” which sets out the efforts that he made to obtain work clearly indicates that he applied for jobs in Sydney from 22 September onwards. It may well be that if this employment had not been terminated the applicant would have left it to return to employment in Sydney, if he could have obtained employment in Sydney, in any event. I am also mindful that the respondent was in fact engaged in a process of retrenching employees and it might well have been that if the employment of the applicant continued, had he been retrenched using the proper procedures, then that retrenchment would have happened sooner rather than later. I accept Mr Schiller's evidence that there is no job available at the factory in Canberra which would suit the applicant at the present time. I note also that the applicant is now resident in Sydney and for all those reasons I am of the view that reinstatement is not practicable in this case.
The alternative to reinstatement is compensation. There has been a considerable delay in this matter coming on for hearing. I note that it was listed for hearing on 28 March 1995 and that on that date it was adjourned because the parties had apparently entered into some negotiations to attempt to resolve the matter between themselves. The delay in the hearing of the matter cannot be said to be the fault of either party but the effect that it has had is that a period of greater than 6 months since the date of termination of the employment has passed. During that period the applicant worked as a labourer and has earned income for only two weeks. I am obliged by the amendments to the legislation which came into effect on 15 January 1996 to take all of the circumstances of the case into account in assessing an appropriate amount of compensation. As I have said it is very likely that this employment would have come to an end at some stage after 29 September 1995 if the employment had continued beyond that date. The well known principles espoused by the Chief Justice of this Court in Nicholson v Heaven and Earth Gallery Pty Limited [1994] 126 ALR 233 require me to take that view into account and that view is also relevant in assessing the whole of the circumstances of the case.
Another circumstance which is relevant is that the applicant received four weeks pay by way of severance pay. The applicant at the time of the termination certainly agreed to obtain the Medical Certificate and give it to his employer on 29 September for the purpose, and I find that that was for the primary purpose, of becoming entitled to the severance pay. However, I bear in mind the evidence of Mr Schiller as to the applicant's attitude on 29 September towards the termination of the employment and I cannot agree with Mr Gillingham's submissions that the fact that the applicant agreed to get the Medical Certificate so that he could obtain the retrenchment pay led the company to believe that it would not be challenged. The applicant in taking the steps that he took to obtain payment of that money was not in my view fully aware of the consequences of his actions and nevertheless, though, he did receive the money and receipt of that money has to be taken into account by me as one of the circumstances of the case in assessing the appropriate amount of compensation. Mr Harris submitted that the action of the respondent, at the end of September, in terminating this employment was too hasty, and I agree that that is probably the level of it. The respondent acted hastily and acted for reasons which were not the right reasons at the time. That is not to say that the employment may not have come to an end in any event in the fullness of time.
In all of the circumstances of the case I do not believe it is appropriate for this applicant to receive payment of an amount equivalent to the maximum which is available pursuant to the provisions of Section 170EE. His wage at the time of termination of employment was $438.40 per week. I believe that an appropriate amount in addition to the moneys which he has received or taking into account the moneys that he has received by reason of the termination of the employment would be $5000 and I propose to make an order for compensation in that sum. I will also make an order by consent in the sum of $155.36 in satisfaction of moneys due from the respondent to the applicant for wages and other entitlements up to the date of termination of the employment and that should bring to an end all of the outstanding issues between these parties. The orders that I make today are that:
The identity and name of the respondent be changed to Traikbridge Pty Limited (A.C.N.008 605 301) trading as C.F.M Kitchens
Pursuant to the provisions of Section 170EA(3) of the Industrial Relations Act 1988 the time for filing of the Application is extended to 9 November 1995.
By consent the respondent pay to the applicant the sum of $155.36 in satisfaction of all moneys due for wages and other entitlements up to 29 September 1996 in respect of the employment of the applicant by the respondent.
That the respondent is in breach of Sections 170DE(1) and DF(1)(a) of the Industrial Relations Act 1988 and that pursuant to Section 170EE(2) and (3) of the Act the respondent pay the applicant compensation in the sum of Five Thousand Dollars ($5000.00)
I certify that this and the preceding 11 pages are a true copy of the reasons for decision of Judicial Registrar Linkenbagh as recorded in the transcript and revised by the Judicial Registrar.
Associate:
Dated: 22 August 1996
APPEARANCES
Solicitor for the applicant: Mr G Harris
Willis & BowringIndustrial Advocate for the respondent: Mr F Gillingham
Masters Builders Association A.C.T.Date of hearing: 22 August 1996
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - EXTENSION OF TIME - VALID REASON - TERMINATION FOR PROHIBITED REASON - COMPENSATION
Industrial Relations Act 1988, ss 170DE(1), 170DF(1),170EA,170EE
Turner -v- K & J Trucks Coffs Harbour Pty Limited (unreported) Judgment No. 360/95, Beazley J, 10 August 1995
Nicholson -v- Heaven & Earth Gallery Pty Ltd [1994] 126 ALR 233
Gregory James WILLSON -v- TRAIKBRIDGE PTY LIMITED (A.C.N. 008 605 301) trading as C.F.M KITCHENS
NI 4365 of 1995
Coram: LINKENBAGH JR
Place: SYDNEY
Date: 22 AUGUST 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 4365 of 1995
BETWEEN:
Gregory James WILLSON
Applicant
AND
TRAIKBRIDGE PTY LIMITED (A.C.N. 008 605 301)
trading as C.F.M KITCHENS
Respondent
Coram: Judicial Registrar LINKENBAGH
PLACE: SYDNEY
DATE: 22 AUGUST 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The identity and name of the respondent be changed to Traikbridge Pty Limited (A.C.N.008 605 301) trading as C.F.M Kitchens
That pursuant to the provisions of Section 170EA(3) of the Industrial Relations Act 1988 the time for filing of the Application is extended to 9 November 1995.
That by consent the respondent pay to the applicant the sum of $155.36 in satisfaction of all moneys due for wages and other entitlements up to 29 September 1996 in respect of the employment of the applicant by the respondent.
That the respondent is in breach of Sections 170DE(1) and DF(1)(a) of the Industrial Relations Act 1988 and that pursuant to Section 170EE(2) and (3) of the Act the respondent pay the applicant compensation in the sum of Five Thousand Dollars ($5000.00)
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
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