C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - ABANDONMENT OF EMPLOYMENT - INJURY - applicant terminated on basis absence without leave without reasonable cause - applicant certified unfit to work - applicant not absent without reasonable cause - applicant had not abandoned employment pursuant to clause 10.5 of National Rail Enterprise Agreement.
Industrial Relations Act 1988, S170 DC, S170EA, S170EE, S170DE(1)
and (2).
Clause 10.5 National Rail Enterprise Agreement
CASES:
Automatic Fire Sprinklers v Watson [1946] 72 CLR 435.
Nicolson v Heaven and Earth Gallery Pty Limited [1994] 1 IRCR 199
Liddell v Lembke [1994-95] 127 ALR 342
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
HENRY TOMLINSON v NATIONAL RAIL CORPORATION LTD
No. VI-95/1888
Before: Ryan JR
Place: Melbourne
Date: 31 July 1995
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI-95/1888
B E T W E E N: HENRY TOMLINSON
Applicant
AND: NATIONAL RAIL CORPORATION LTD
Respondent
RYAN JR
MINUTES OF ORDER
4 AUGUST 1995
THE COURT ORDERS THAT:
1. The respondent reinstate the employee by either:
(a) reappointing the applicant to the position in which he was employed immediately before the termination; or
(b) appointing the applicant to another position on terms and conditions no less favourable to those on which the applicant was employed immediately before the termination.
2. The respondent to take all steps necessary to maintain the continuity of the applicant’s employment from 28 February 1995 to 31 July 1995.
3. The respondent to pay to the applicant the remuneration lost by the applicant because of the termination on 28 February 1995.
4. The orders to be effective as of 31 July 1995.
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
VICTORIA DISTRICT REGISTRY Matter No VI-95/1888
B E T W E E N: HENRY TOMLINSON
Applicant
AND: NATIONAL RAIL CORPORATION LTD
Respondent
COURT: RYAN JR
PLACE: MELBOURNE
DATE: 4 AUGUST 1995
REASONS FOR JUDGMENT
At the conclusion of the hearing on 31 July the Court ordered reinstatement and indicated reasons would be given later. These are the reasons.
THE WORKPLACE
The applicant was a terminal operator with National Rail Corporation. A terminal operator is multi-skilled. Each operator works in a team of ten or, at least since 20 February 1995 has actually worked in a team of ten. Before 20 February several officers worked in a formal team structure but seemed in practice able to do certain work on “a first in best dressed” principle.
Each terminal officer loads and unloads rail trucks using equipment such as forklifts and cranes. Each terminal officer has to check loads. Each terminal officer is expected to work on computers in the office situation and to do other office work including answering telephones. Much of the computer processing seems to be related to the entry of freight movements.
The applicant had some history of work related injury. He had been absent in respect of two injuries. One was a repetitive strain injury and is not relevant to these proceedings. The other was a back injury caused when the applicant fell from an office chair. The accident was witnessed by a supervisor and the incident was reported to the employer. This second injury led to some time off work and to a rehabilitation regime which was still in operation at the time the employment ended.
THE CLAIM
The ending of the employment resulted in a claim by the applicant for remedy for unlawful termination. Mr Borenstein appeared for the applicant and Mr Green for the respondent.
The applicant claims the termination was the initiative of the employer, was without valid reason and was in any event harsh, unjust and unreasonable.
The respondent denies termination at the initiative of the employer and asserts that the applicant abandoned the employment.
ABANDONMENT CLAUSE - ENTERPRISE AGREEMENT
The terminal manager, Mark Stoove, appears to have relied on Clause 10.5 of the National Rail Enterprise Agreement which states:
“Where an employee is absent from duty without authorised leave for a continuous period exceeding three working days without reasonable cause it will be prima facie evidence that the employee has abandoned his or her employment.”
THE TERMINATION
On Tuesday 28 February 1995 Stoove, having been advised that:
1. the applicant had been absent without explanation for four days and that this had occurred on a previous occasion in July 1994
2. attempts to locate the applicant on his home telephone number had been unsuccessful
3. telephone inquiries to Comcare had revealed no information as to the applicant’s whereabouts or status
4. the applicant’s rehabilitation supervisor at Workplace Solutions was unavailable
directed the preparation of a letter of termination, Exhibit A3.
There is some evidence that Exhibit A3 may have been drafted prior to advice to Stoove on the result of these telephone inquiries.
The letter (Exhibit A3) was delivered by courier to the applicant’s home address on 28 February.
The letter reads as follows:
“28 February 1995
Mr H Tomlinson
23 Marriot Road
KEILOR DOWNS VIC 3038
Dear Mr Tomlinson
I write in reference to your failure to report for duty for three consecutive shifts without notification of the reason for your absence.
Accordingly, under section 10.5 of the Enterprise Agreement you have been deemed to have abandoned your employment.
Your employment with National Rail Corporation Ltd has been terminated forthwith.
Yours sincerely
MARK STOOVE
TERMINAL MANAGER”
Mr Stoove had only taken over as Terminal Manager in Melbourne at Dynon Road on 20 February. He had never met the applicant. He had never heard of the applicant until the 28 February. Understandably, to a considerable degree, he appears to have relied on advice from one or more officers with more experience at the Dynon Road terminal. He certainly relied on advice from Robert Indrigo, a Terminal Operator, who appears to have special responsibilities in finance, administration, personnel and Comcare liaison. He may also have relied on advice to a smaller degree from the applicant’s team leader, Alf Peplow.
He describes the decision to proceed on the basis that the applicant had abandoned employment or, to use his own words, had “been deemed to have abandoned his employment” as a team decision. He later confirmed that the team was himself, Indrigo and Peplow. However, I am satisfied that Mr Stoove took the responsibility for the decision to advise the applicant that his employment had been terminated.
INCONSISTENCIES IN EVIDENCE
I regard Mr Stoove as a genuine, open and honest witness but not necessarily a witness with completely accurate recall of certain events on 28 February 1995.
The Court notes that there are a number of inconsistencies between his evidence and that of Mr Indrigo. In particular, Mr Indrigo seems to be of the view that the first discussion with Stoove took place before lunch on 28 February 1995. His evidence is that there had been an agreement between them, or a direction from Stoove, that Indrigo was to draft a letter in the terms of Exhibit A3. During this first discussion on 28 February Indrigo had advised Stoove of the applicant’s absence from work for three to four days without leave and without advice and without any contact with the work place. At this stage Stoove directed Indrigo to attempt to contact the applicant directly and through Comcare and his rehabilitation supervisor, Workplace Solutions,
Indrigo, in cross-examination, at one stage indicated that he was required to draft a letter “if there was not a satisfactory answer” to the telephone inquiries. Later, Indrigo described the decision or direction to draft the letter as a requirement to do it “in the interim” which the Court took to mean that the letter was to be drafted during the time when the telephone inquiries were underway.
Stoove’s evidence is clearly that the decision to draft the letter came during the second conversation when Indrigo reported that he had been unable to contact the applicant, had no information from Comcare and had left a message for Louise Fraser and Alison Smith of Workplace Solutions. Stoove believes both conversations took place in the afternoon, the first about 2:30 pm, the second about 4:15 pm.
Stoove has no recollection of a third conversation later in the afternoon in which Indrigo states he reported that Alison Smith of Workplace Solutions had just informed him that the applicant had, the previous day, 27 February, reported a further injury to his back sustained on Wednesday 22 February and which injury had resulted in a doctor’s certificate and unfitness for work for some future period.
It is not clear in what detail Indrigo reported the advice received from Alison Smith to Stoove. There is, I suppose, a possibility, given the fact that Stoove cannot recall the third discussion on 28 February, that it did not take place. What is clear is that Indrigo recorded the conversation with Smith in a note of 28 February 1995 which reads:
“spoke to Alison Smith, Work Solutions. Stated Henry was contacted per claiming to have aggravated his injury at work and would be off for 1 week. Advised Mark Stoove who agreed to proceed with abandonment of employment.”
Indrigo also appears to have made a further pencilled note referring to this conversation.
However, irrespective of the contents of the third discussion between Stoove and Indrigo on 28 February, if such discussion occurred, and irrespective of any other internal inconsistencies between parts of Indrigo’s evidence, it is very clear that Stoove signed a letter and directed the letter be delivered to the applicant and that the letter treated the applicant as having abandoned his employment and stated that his employment was terminated forthwith. The Court has gained the impression that Indrigo played a significant and persuasive role but that the responsibility for the termination must be and was taken by Stoove.
The respondent through Stoove acted on the assumption that the applicant had evinced an intention through his conduct no longer to be bound by the contract of employment although it is unlikely that Stoove did other than rely on the advice of Indrigo.
The respondent was treating the applicant as having repudiated the contract and by terminating the employment acted as an injured innocent party electing not to keep the contract on foot - Automatic Fire Sprinklers v Watson [1946] 72 CLR 435.
PROCEDURAL FAIRNESS
Section 170DC provides:
“An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:
(a) the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b) the employer could not reasonably be expected to give the employee that opportunity.”
Wilcox CJ in Nicolson v Heaven and Earth Gallery Pty Limited [1994] 1 IRCR 199 at 209 states;
“Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as “natural justice” or, more recently, “procedural fairness”. The relevant principle is that a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. The principle is well-established in public administrative law. It was accepted into international labour law when Art 7 was inserted in the Termination of Employment Convention. Section 170DC is directly modelled on Art 7. The principle is, I believe, well understood in the community. It represents part of what Australians call “a fair go”. In the context of S170DC, it is not to be treated lightly. The employee is to be given the opportunity to defend himself or herself “against the allegations made”; that is, the particular allegations of misconduct or poor performance that are putting the employee’s job at risk.”.
S170DC is “the procedural fairness provision of the Commonwealth Act” and the majority (Wilcox CJ, Keely J) state in Liddell v Lembke [1994-95] 127 ALR 342 at 359:
“The effect of that section is that the dismissal of an employee in circumstances of procedural unfairness is unlawful. If procedural unfairness is established, the employee may be reinstated, unless this is impracticable; and, if it is impracticable, may receive compensation instead. This is so even if the employee was guilty of conduct that would have entitled the employer, adopting proper procedures, to terminate the employment under S170DE.
It is true that 170EE uses the word “may”, not “shall”, and that “may” connotes the conferral of a discretion, not a duty: see S33(2A) of the Acts Interpretation Act 1901 (Cth). However, as the Industrial Relations Act does not specify any criteria for the exercise of that discretion, they are those emerging from “the subject matter and the scope and purpose” of the legislation: see R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; 27 ALR 321. The subject matter of this legislation is unlawful termination of employment. Its scope and purpose is the provision of legally enforceable remedies for people whose employment is terminated in breach of the internationally-accepted standards introduced by the Act into Australian domestic law. Because of these considerations, and the fact that the Commonwealth Act makes a termination in violation of the requirements of S170DC unlawful in itself, whatever the employee’s merits or lack of them, it would not be right to withhold a remedy for a breach of S170DC because of considerations listed in S170DE(1). They are factors that permit an employer acting fairly to terminate an employee’s employment. Still less would it be correct for the court to exercise its discretion adversely to an applicant because of factors extraneous to the Industrial Relations Act, such as a respondent’s financial position or personal likes or dislikes.”
FINDINGS
The applicant was treated as a person who had absented himself from the work place for in excess of three days without reasonable cause. The respondent terminated the applicant’s employment.
I find the applicant had absented himself from the work place for in excess of three days but I do not find it was an absence without reasonable cause.
Using a balance of probability test I have grave doubts that the applicant sustained an injury of the degree he described jumping from the bed of a train carriage on 22 February. Be that as it may, the Court notes that the respondent through Counsel does not resist or deny that the applicant did sustain some injury to his back by this means on 22 February. The respondent’s position is that the applicant failed to report the incident and failed to report to the respondent his absence from work or the cause for it on 23 February, 24 February, 27 February and 28 February.
Using a balance of probability test, I do not accept that the applicant telephoned an unknown, unidentified male in the terminal office on the 23 February and left a message that he would be unable to work his shift that afternoon.
However I do accept that, indisputably on the basis of uncontradicted evidence, the applicant
(1) presented with back pain at his local medical clinic at 8:30 am on Monday 27 February
(2) was referred by the attending doctor to Dr Williams who was responsible for his return to work regime
(3) on that day, 27 February, contacted Alison Smith by telephone and advised her of his situation
(4) attended Dr Williams on 28 February and was certified unfit for work from 23 February to 5 March.
I also find that Smith undertook to advise the employer and that Indrigo’s pencilled note of his telephone conversation with her is support for the position that she told Indrigo on 28 February that she had forgotten to telephone on 27 February.
I note that Ms Smith in evidence had incomplete recall of a number of aspects of her conversation on 27 February with the applicant.
I find that
(1) irrespective of the degree of any injury which the applicant might have sustained on 23 February, and I find the applicant generally an unimpressive witness, he was suffering back pain on 24 February, 25 February, 26 February, 27 February and 28 February
(2) he consulted doctors on 27 and 28 February
(3) on 28 February he obtained a certificate of unfitness to work from 23 February to 5 March
(4) he had reasonable cause for his absence from work
(5) he did not abandon his employment.
I find that Mark Stoove, the recently appointed Terminal Manager at the Dynon Street terminal, acted in good faith and was an honest if at times uncertain and confused witness. He took action which in effect terminated the applicant’s employment. There were no valid grounds for the termination. The applicant was not given an opportunity to establish that he was absent with reasonable cause.
I also find that the termination was harsh, unjust and unreasonable and that the termination breached Sections 170DE(1) and (2) and Section 170DC.
I so find despite the fact that I find the applicant an unimpressive witness and I do not accept and I am not satisfied on the balance of probability that he ever informed the employer of his absence on 23 February or the reason for it.
ORDER
1. The respondent reinstate the employee by either:
(a) reappointing the applicant to the position in which he was employed immediately before the termination; or
(b) appointing the applicant to another position on terms and conditions no less favourable to those on which the applicant was employed immediately before the termination.
2. The respondent to take all steps necessary to maintain the continuity of the applicant’s employment from 28 February 1995 to 31 July 1995.
3. The respondent to pay to the applicant the remuneration lost by the applicant because of the termination on 28 February 1995.
4. The orders to be effective as of 31 July 1995.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : 4 August 1995
Appearances:
Counsel for the Applicant : H Borenstein
Solicitor for the Applicant : McMullin Coate & Co
Counsel for the Respondent : N Green
Solicitor for the Respondent : Minter Ellison Morris Fletcher
Date of Hearing : 27, 28 and 31 July 1995
Judgment : 31 July 1995
Reasons for Judgment : 4 August 1995
