FEDERAL COURT OF AUSTRALIA

Crowley v Parker Hannifin (Australia) Pty Limited [2006] FCA 901

INDUSTRIAL RELATIONS – alleged unlawful termination of employment on grounds of temporary absence from work, complaint to authorities and disability – whether employee terminated for a temporary absence from work because of illness or injury within the meaning of reg 30C of the Workplace Relations Regulations 1996 (Cth)

Held – Regulation 30C not satisfied and termination not otherwise in breach of s 170CK(2) of the Workplace Relations Act 1996 (Cth). The application is dismissed.

Workplace Relations Act 1996 (Cth) s 170CR, s 170CK(2)

Laz v Downer Group Ltd [2000] FCA 1390; FCA (2000) 108 IR 244, followed

He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266, applied

Jennings v Salvation Army [2003] FCA 1193; (2003) 128 IR 366, followed

LEANNE CROWLEY v PARKER HANNIFIN (AUSTRALIA) PTY LIMITED

VID 953 OF 2005

MARSHALL J

13 JULY 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

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

REASONS FOR JUDGMENT

1                     Leanne Crowley worked for Parker Hannifin (Australia) Pty Limited from 15 July 2002 until 8 March 2005 when Mr David Flint, the then Group Human Resources Manager – Australasia of Parker Hannifin terminated her employment. Ms Crowley alleges that Parker Hannifin terminated her employment for reasons which include the following:

·                    her temporary absence from work because of illness or injury, within the meaning of the then applicable Workplace Relations Regulations 1996 (Cth);

·                    the filing of a complaint against her former employer alleging violation of laws or regulations; and

·                    her physical disability.

2                     In mid June 2004, whilst scuba diving off the Great Barrier Reef, Ms Crowley suffered an injury to her left ear, resulting in vestibular dysfunction.

3                     Parker Hannifin denies that the reasons for Ms Crowley’s termination include any of the above reasons. It says that it terminated her employment because it was unable to ascertain when Ms Crowley may return to work, in circumstances where Ms Crowley was actively looking for work elsewhere.

The issues

4                     The issues requiring determination in this proceeding are:

·                    did Parker Hannifin terminate Ms Crowley’s employment for reasons which included the reason of her “temporary absence from work because of illness or injury within the meaning of the regulations?”;

·                    did Parker Hannifin terminate Ms Crowley’s employment for reasons which included the reason that she filed a complaint against it “involving alleged violation of laws or regulations or recourse to competent administrative authorities?”; and

·                    did Parker Hannifin terminate Ms Crowley’s employment for reasons which included her physical disability?

Procedural background

5                     Ms Crowley applied to the Australian Industrial Relations Commission shortly after the termination of her employment. On 25 July 2005, Commissioner Gay certified that all reasonable steps to settle the matter by conciliation had been, or were likely to be, unsuccessful.

6                     On 15 August 2005, Ms Crowley commenced a proceeding in the Court seeking orders under s 170CR of the Workplace Relations Act 1996 (Cth) in respect of alleged breaches of s 170CK(2) of the Act.

7                     On 16 September 2005 the Court ordered, amongst other things, that Ms Crowley “file and serve a statement outlining her reasons for contending that the respondent breached s 170CK of the Workplace Relations Act.”

8                     In support of her contention that s 170CK(2)(a) had been breached by Parker Hannifin, Ms Crowley said, in her written submissions dated 22 September 2005:

“After a delay of some 8 days, the respondent finally provided a copy of an Employment Separation Certificate. This Certificate indicates that my employment was terminated due to ‘unsatisfactory work performance’ stating the reason “in excess of temporary absence conditions.”

9                     In support of her contention that s 170CK(2)(e) had been breached by her former employer, Ms Crowley wrote:

“During my employment I endured continued abhorrent, unconscionable and contemptuous actions by the respondent. Official complaints were lodged with the Equal Opportunity Commission of Victoria, Victorian WorkCover Authority, and the Australian Industrial Relations Commission. These complaints are in relation to alleged unethical and unlawful behaviour.”

10                  In support of her argument that Parker Hannifin breached s 170CK(2)(f), Ms Crowley wrote:

“I maintain that the respondent exploited the impairment / physical disability, caused by the aforementioned injury / illness, to terminate my employment in an attempt to evade any liability or responsibility for complaints and actions, in progress and planned, that may be deemed to be unethical and / or unlawful.”

11                  In response to Ms Crowley’s outline of argument, Parker Hannifin on the issue of s 170CK(2)(a), said that:

·                    Ms Crowley commenced sick leave on 29 November 2004 and was on paid sick leave until 13 January 2005;

·                    from 14 January 2005 until 31 January 2005, Ms Crowley was absent from work but not on paid sick leave;

·                    between 31 January 2005 and 4 February 2005, Ms Crowley attended work for a period of three days (later said to be 1, 2 and 4 February 2005);

·                    from 4 February 2005 until 8 March 2005, Ms Crowley was absent from work and was not on paid sick leave;

·                    Ms Crowley’s total absences, within a twelve month period, extended for more than three months during which she was not on paid sick leave;

·                    Ms Crowley did not provide, for each period of absence, a medical certificate for the illness or injury within 24 hours after the commencement of the absence or such longer period as was reasonable in the circumstances; and

·                    not all the periods of absence were temporary within the meaning of reg 30C(1).

12                  In response to Ms Crowley’s outline on the issue of s 170CK2(e), Parker Hannifin, amongst other things, said that:

·                    it was not aware (at that time) of any complaint being made to the Equal Opportunity Commission of Victoria;

·                    the complaint to the Australian Industrial Relations Commission post-dated the termination; and

·                    the WorkCover claim was lodged on 10 March 2005, two days after the termination.

13                  In response to the claim of discrimination based on physical disability in alleged breach of s 170CK(2)(f), Parker Hannifin denied that that reason actuated its termination decision.

14                  Parker Hannifin said that Ms Crowley’s employment was terminated because she:

·                    had been absent for an extended period of time;

·                    failed to provide any indication of when she may be able to return to work; and

·                    failed to provide appropriate notification of her absences or to discuss a return to work.

15                  Parker Hannifin further said that it was an inherent requirement of Ms Crowley’s position that she be able to attend for work.

16                  On 19 June 2006, Parker Hannifin filed and served a “notice to admit facts”. Ms Crowley made no response to the notice and is taken to have admitted the following facts:

·                    Ms Crowley sought and obtained medical certificates in respect of each week day from 29 November 2004 to 8 March 2005;

·                    Ms Crowley has received workers’ compensation benefits for the period 29 November 2004 to 2 April 2005;

·                    prior to 7 March 2005, Ms Crowley attended an interview with Tyco Flow Control Pacific Industrial Division for the purpose of obtaining employment;

·                    Ms Crowley received a written offer of employment from Tyco on 7 March 2005;

·                    Ms Crowley accepted the offer on 8 March 2005;

·                    Ms Crowley commenced employment with Tyco on 4 April 2005 and remained in such employment until 15 October 2005;

·                    Ms Crowley received workers’ compensation benefits for the period 22 October 2005 to 19 May 2006; and

·                    on 8 March 2006, Ms Crowley filed a complaint against Parker Hannifin and certain of its employees with the Equal Opportunity Commission of Victoria, being the only complaint lodged with that body against Parker Hannifin.

17                  On 22 June 2006, Ms Crowley filed a notice to admit facts. All the matters raised in that document dealt with alleged conduct of Parker Hannifin and certain of its employees which post-dated her termination of employment. Ms Crowley filed a further notice to admit facts, two days prior to the commencement of the trial. It was not capable of being disputed within 14 days as provided by the Rules of Court. It was largely discursive and dealt with matters some of which were the subject of evidence in the proceeding.

The termination

18                  Ms Crowley commenced employment on 15 July 2002 with Parker Hannifin as a Territory Manager. The position of Territory Manager, was essentially a sales manager position in which the relevant employee had responsibility for certain product lines within a designated geographical area.

19                  Parker Hannifin bears the onus of proving that it did not terminate Ms Crowley’s employment for the reasons alleged; see Laz v Downer Group [2000] FCA 1390; FCA (2000) 108 IR 244 at [26] per Moore J.

20                  Mr Flint is the decision maker who terminated Ms Crowley’s employment. Mr Flint gave evidence that he terminated her employment for the following reasons:

·                    her absence from work for an extended period during the previous 12 months;

·                    her failure to give timely notification of her absences, in that medical certificates generally arrived in bundles and were backdated by several weeks and sometimes by a month;

·                    the difficulty he experienced in communicating with her to ascertain when she would return to work;

·                    his belief that there was little prospect of her returning to work in the short to medium term; and

·                    his knowledge that she had applied for other jobs, including with Tyco and attending interviews when she was supposed to be too ill to work.

21                  Mr Flint denies that he terminated Ms Crowley’s employment because of her “temporary absence”. He says that he considered that her absence was not “a temporary absence”. Mr Flint also denies that Ms Crowley’s applications to WorkCover or the Equal Opportunity Commission of Victoria were reasons for the termination. He makes the same point in respect of her physical disability, which was the injury to her left ear which caused her absences from employment from November 2004 to March 2005.

Section 170CK(2)(e)

22                  The claim that Ms Crowley’s employment was terminated in breach of s 170CK(2)(e) is without foundation. As at the date of the termination (8 March 2005) Ms Crowley had not filed any complaint with any authority. To the extent that Ms Crowley relies on internal complaints within her former employer, such complaints are not encompassed by s 170CK(2)(e); see He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [44].

23                  Even if the complaint to WorkCover had have preceded the termination, s 170CK(2)(e) would not have been breached. This is because the making of a claim under the Accident Compensation Act 1985 (Vic) is not contemplated by s 170CK(2)(e); see Jennings v Salvation Army [2003] FCA 1193; (2003) 128 IR 366 at [35]. The making of a complaint to WorkCover can only be in the context of a claim with which it has jurisdiction to deal. Complaining to WorkCover about aspects of an employer’s conduct is also not contemplated by s 170CK(2)(e).

Section 170CK(2)(f)

24                  Mr Flint gave evidence that the injury to Ms Crowley’s ear was not a reason for the termination. Ms Crowley did not challenge that evidence in her cross-examination of him. I am confident that if Ms Crowley and Mr Flint had been able to agree on a program for Ms Crowley to be re-integrated into Parker Hannifin’s active workforce, on an agreed “return to work program”, her termination would not have occurred; at least not at the initiative of Parker Hannifin. I am satisfied that Parker Hannifin has discharged its onus of proof with respect to this aspect of the proceeding.

Section 170CK(2)(a)

25                  The critical issue for determination in the proceeding is whether Parker Hannifin terminated Ms Crowley’s employment for a reason which included the reason of her “temporary absence from work because of illness or injury within the meaning of the regulations”.

26                  Mr Flint considered Ms Crowley’s absence was not temporary. However, he also said that he did not expect her to come back to work in the short or medium term. It is possible that an absence from work is temporary notwithstanding that the employee is suffering from a long-term injury. Therefore I am satisfied that Parker Hannifin has not discharged its onus in contending that Ms Crowley’s temporary absence was not a reason for the termination in the ordinary sense of “temporary absence”. However, the critical issue is whether her temporary absence from work because of illness or injury was a “temporary absence” as defined by reg 30C. If it was not, s 170CK(2)(a) was not capable of being breached in the circumstances.

27                  Regulation 30C(1)(a) provides that:

“For paragraph 170CK(2)(a) of the Act, an employee’s absence from work because of illness or injury is a temporary absence if:

(a)    the employee provides a medical certificate for the illness or injury within:

(i)                 24 hours after the commencement of the absence; or

(ii)               such longer period as is reasonable in the circumstances”.

28                  The evidence discloses that Ms Crowley was absent from work due to illness or injury from 29 November 2004 to 8 March 2005, inclusive (except for 1, 2 and 4 February 2005). Ms Crowley contends that from 6 December to 17 December 2004 she was not absent from work but worked from home. The evidence suggests that Ms Crowley may have answered some work related queries during this period, but the evidence also shows that Ms Crowley submitted certificates from medical practitioners to show that she was unfit for work during the period 29 November 2004 to 8 March 2005. The only verifiable occasions, on the evidence, during which Ms Crowley performed work, as distinct from dealing with the odd query, were 1, 2 and 4 February 2005.

29                  Ms Crowley’s continuing absence from work because of her illness or injury cannot be considered to be a temporary absence because reg 30C(1)(a) has not been satisfied, for the reasons set out below.

30                  Ms Crowley did not submit a medical certificate in respect of her absence from 6 December 2004 to 6 January 2005 until 7 January 2005. She provided no explanation for the delay at least in respect of the December 2004 absences.

31                  Ms Crowley did not provide a medical certificate for her absence on 14 January 2005 until 18 January 2005, with no explanation for the delay. The 15, 16 and 17 January 2005 absences were also covered by the same medical certificate.

32                  It is not in dispute that Ms Crowley provided medical certificates within the time frame set out in reg 30C(1)(a) in respect of the following absences:

(a)                29 November 2004 to 3 December 2004; and

(b)               7 January 2005 to 14 January 2005.

33                  No medical certificate was provided in respect of the absence from 6 December 2004 to 6 January 2005, until 7 January 2005, with no explanation for the delay. The medical certificate to cover the absence from 14 to 20 January 2005, was provided on 18 January 2005. No legible medical certificate was provided for the period 13 February 2005 to 8 March 2005, until after the termination.

34                  Based on the foregoing, reg 30C(1)(a) has not been complied with. However, that issue is not strictly necessary to determine given my view of the application of reg 30C(2).

35                  Regulation 30C(2) provides that sub-reg (1) does not apply if:

“(a) the employee’s absence extends for more than 3 months, unless the employee is on paid sick leave for the duration of the absence; or

(b) the total absences of the employee, within a 12 month period, whether based on a single or separate illnesses or injuries, extend for more than 3 months, unless the employee is on paid sick leave for the duration of the absences.”

36                  Counsel for Parker Hannifin, Ms Siemensma, contended that Ms Crowley’s absences from work within a 12 month period extended for more than 3 months and that Ms Crowley was not on paid sick leave for the duration of the absences.

37                  The relevant 12 month period is 9 March 2004 to 8 March 2005. During that period, Ms Crowley was absent from work due to illness or injury from 29 November 2004 to 8 March 2005, with the exception of 1, 2 and 4 February 2005. This means that her absences exceeded 3 months. She was not on paid sick leave for the duration of the period of her absences. Ms Crowley’s sick leave had been exhausted by 13 January 2005. Those sick leave days included the days in December 2004 on which Ms Crowley asserts that she was working from home. The independent documentary evidence of her being in receipt of sick leave during that period is inconsistent with such an assertion.

38                  A former employee of Parker Hannifin, Mr Sinclair, gave evidence that Territory Managers, like Ms Crowley, did not work from home in the sense of being at home five days a week, eight hours a day performing work functions. There is no contrary evidence. Ms Crowley acknowledged that she was told specifically on 6 January 2005 that she was not permitted to work from home. She also gave evidence that from 16 December 2004 until 14 January 2005 she was “critically ill”. I do not accept that a critically ill person would work from home.

39                  A medical certificate is in evidence which shows that Ms Crowley informed the certifying medical practitioner that she had been away from work since 29 November 2004 and was unfit for work until 3 December 2004. An application for sick leave for the period 29 November 2004 until 3 December 2004 is also in evidence; 29 November 2004 was a Monday and 3 December 2004, a Friday. The sick leave application stated that 6 December 2004 (a Monday) was to be the return to work day.

40                  A marked off desk calendar, kept by Mr Stack (Ms Crowley’s former supervisor) records her as being absent from work on all normal working days in December 2004. In addition there is a medical certificate covering the period 9 December 2004 until 17 December 2004 and the others covering the periods 6 to 8 December 2004 and 9 to 10 December 2004.

41                  This evidence confirms my view that Ms Crowley’s absence from work extended for more than three months in a twelve month period during which she was not on sick leave for the entire duration of her absences. There are no days in the period 29 November 2004 to 8 March 2005 (apart from 1, 2 and 4 February 2005) on which any evidence supports the view that she was working, whether from home or otherwise. There is, however, as disclosed above, documentary evidence to the contrary.

42                  As a consequence of the application of reg 30C(2)(b), Ms Crowley’s temporary absences from work, in respect of which a medical certificate was provided in accordance with reg 30C(1)(a), cannot be considered to be temporary absences within the meaning of s 170CK(2)(a). Accordingly s 170CK(2)(a) is not capable, on the facts before me, of being relied upon by Ms Crowley to contend that her employment was unlawfully terminated.

Order

43                  Having regard to the foregoing, the application must be dismissed. Had the application succeeded it would have only been necessary to consider the question of penalty as Ms Crowley did not seek reinstatement or compensation.

Associate:

Dated: 13 July 2006