Van Thu Nguyen v Nissan Casting Australia Pty Ltd [1995] IRCA 657

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INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 3839 of 1995

B E T W E E N :

VAN THU NGUYEN

Applicant

AND

NISSAN CASTING AUSTRALIA PTY LTD

Respondent

Before: Judicial Registrar Millane

Place: Melbourne

Date: 15 December 1995

REASONS FOR JUDGMENT

On 13 July 1995 the respondent terminated the applicant’s employment of five years as a production technician with the company “due to frustration of contract” (see Exhibit R59). The applicant alleges that in doing so the respondent acted unlawfully and in breach of Division 3 Part VIA of the Industrial Relations Act 1988 (the Act). In particular, he alleges breaches of s.170DC, s.170DE(1) and (2) and s.170DF(1)(a) of the Act.

The applicant is a 42 year old Vietnamese man who taught his native tongue in Vietnam. He is fluent in English inasmuch as he can read, write and speak the language; albeit speaking English with an accent at times making it very difficult to understand him in Court when he chose to respond directly to questions, without the aid of the independent interpreter.

I make the abovementioned observation at the beginning of my judgment because one of the approaches adopted by the respondent was to rely on the applicant’s fluency in a non-native tongue to argue that the applicant at all times in the period leading up to his termination was aware of and understood exchanges with the respondent concerning his employment and, even in the absence of an interpreter, the applicant had a full understanding of discussions with the respondent’s management, particularly its return to work offers. The impression given by the respondent was that the applicant’s reliance on the use of an interpreter in Court was in some way a sham. However, at hearing the applicant quite properly pointed out that at times he could not understand spoken English because, for instance, he was troubled by the accents of those speaking to him. Given the difficulty the Court and Counsel for the respondent had in understanding the applicant’s English from time to time, the applicant’s point was well made. Clearly, fluency in a non-native tongue does not always equip a person with a full understanding of the spoken language and, in this case, the applicant at all times appeared to make a genuine attempt to understand the questions put to him and respond in English.

The Court heard four days of evidence from the following witnesses:

1. The Applicant.

2. For the Respondent:

(a) David John Savva (Savva), an Administration Officer and the

respondent’s Return to Work Co-ordinator;

(b) Kevin Eric Hooper (Hooper), who described himself as the

respondent’s General Manager or Plant Manager reporting to

the respondent’s Managing Director; and

Manager since July 1989 reporting to Hooper.

THE BACKGROUND TO THE CLAIM

The applicant commenced employment with the respondent in 1990, initially as a machine operator. In the period between the commencement of his employment and a back injury suffered in the course of his employment on or about 24 July 1994 and caused by lifting, the applicant moved to a position as a production worker in “z casting”. In August 1994 the applicant submitted a claim for compensation (see Exhibit R60) which, by letter dated 7 December 1994, was accepted by the respondent’s workcover insurer, MMI (see Exhibit R2).

The abovementioned letter is addressed to the respondent and includes the following points:

“We can help you with all aspects including:

* minimising the cost of the claim and lessening the affect

on your premium;

* arranging return to work and rehabilitation;

* advising and assisting in claims management; and

* general queries and information.

Now that the claim has been accepted, you are obliged to help the worker return to work and offer suitable employment (for example, modified or alternative duties). Please contact us for advice or assistance.

...

If there is any change in the worker’s employment conditions, or the worker’s entitlement to compensation, please contact us immediately. Strong laws govern this area. For example, failing to provide suitable employment for an injured worker can result in a fine of $25,000. Or an injured worker who fails to accept suitable employment offer can lose entitlement to benefits.”

I have adverted to the matters contained in the insurer’s letter to demonstrate the pressure on the respondent on the one hand to assist in the rehabilitation of its employee whilst offering suitable alternative employment and, on the other hand, whilst meeting its obligations to its insurer, to minimise the effect on the respondent’s insurance premiums and avoid any penalties for non-compliance with the Accident Compensation Act 1985 (Vic).

Although the applicant’s Counsel referred to some of the provisions of the Accident Compensation Act, the Court was not addressed by the parties in any detail on whether the respondent complied with the provisions of that Act and what effect, if any, this had on the lawfulness of the termination.

Section 122 of the Accident Compensation Act provides that:

“(1) If within the period referred to in sub-section (3) after a worker commences to be entitled to receive weekly payments in respect of an injury arising out of or in the course of employment with an employer -

(a) ...

(b) the worker has a partial incapacity for work, the employer must provide suitable employment for the worker.

(2) ...

(2A) ...

(3) for the purposes of this section, the period for the purposes of sub-section (1) after a worker commences to be entitled to receive weekly payments is a period of 12 months or the sum of the periods not exceeding, in the aggregate, 12 months first occurring after the injury during which the worker has an incapacity for work.”

Section 4A of the same Act defines “suitable employment” to mean:

“... employment in work for which the worker is suited (whether or not that work is available), having regard to the following -

(a) the nature of the worker’s incapacity and pre-injury employment;

(b) the worker’s age, education, skills and work experience;

(c) the worker’s place of residence;

(d) the details given in medical information including the medical

certificates supplied by the worker;

(e) the worker’s return to work plan, if any; and

(f) if any occupational rehabilitation services are being provided to or for the worker.”

On 29 March 1995 whilst engaged in light duties the applicant suffered an aggravation of his back injury. Section 4A of the Accident Compensation Act defines an “injury” to mean:

“... any physical or mental injury and without limiting the generality of the foregoing includes:

(a) industrial deafness;

(b) a disease contracted by a worker in the course of the worker’s employment whether at or away from the place of employment and to which the employment was a significant contributing factor; and

(c) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration; ...”

It is not clear to me whether such an aggravation as that alleged led to an entitlement under section 122(1) and (3) to a further period of up to 12 months in which the employer was required to provide suitable employment. Nevertheless, it is apparent that the respondent terminated the applicant’s employment less than 12 months from the date of the first injury and, on the medical certificates, whilst the applicant still had an injury related incapacity for work and was certified as unfit to perform certain duties.

The respondent has an extensive rehabilitation program. Savva’s employment with the respondent commenced in October 1992. Prior to that he had no medical training, occupational health and safety training or experience in the management of workcover claims. From March 1993 he commenced assisting his predecessor in the management of workcover claims before assuming the role of the responsible officer from September/October 1993.

In summary, Savva relies on the respondent’s preferred work recovery agent and its workcover insurer to obtain the respondent’s medical assessment of the capacity of an injured employee to undertake return to work duties. This is apart from any medical reports or certification provided by the employee’s treating doctors. The respondent does not arrange its own medical examinations relying entirely on the insurer to do this and provide it with extracts from the examining doctor’s medical reports, which reports are directed to the insurer.

In his position Savva is required to monitor the return to work of injured workers. He conceded that where he was given medical opinions from treating doctors disagreeing with his opinion concerning the employee’s ability to return to work, he took it upon himself to investigate the matter, which included telephoning the employee’s treating doctors to discuss their medical certificates and reports and inviting the treating doctors to attend the respondent’s premises to inspect the work site and duties offered to the employee; such duties being designated as suitable employment by the respondent. Moreover, where the contents of a medical certificate did not concur with the opinions of the respondent’s insurer and the respondent’s belief as to an employee’s ability to perform particular duties over a period of working hours, the respondent took steps through Savva to ask the treating doctor to change his opinion to accord with the respondent’s opinion and presumably that proffered by the workcover insurer and its doctors.

Initially the applicant was treated by Dr Lane, a doctor the respondent described as “the company’s treating doctor”. I took this to mean that he was the doctor to whom the respondent sent its injured employees or on whom the respondent recommended its employees attend for treatment.

At some stage prior to August 1994 the company ceased to prefer Dr Lane or the clinic he was part of because of a diagnosis given in relation to another employee. As Savva told the Court, “... it was felt by the production management that the diagnoses were not correct and as a result we switched across to Dr Baillieu who had been recommended to us by our head office from North Dandenong Medical Clinic”.

It was apparent from the applicant’s evidence that although he attended Dr Lane for the period between the date of his injury and January 1995, he felt some dissatisfaction with Dr Lane because he viewed Dr Lane as being connected to the company. Whilst there was certainly no evidence of any impropriety on the part of Dr Lane it would be fair to say that if the company preferred him and the clinic where he worked sending its injured employees there, Dr Lane may face some conflict of interest if pressure was brought to bear on him by the respondent to provide medical certificates according with its view (and that of the insurer) of the applicant’s capacity to undertake the duties offered at the hours required.

For the duration of his injury related incapacity the applicant had medical certificates which variously provided him with periods off work as well as recommending light duties on reduced hours. The medical certificates and the applicant’s Orthopaedic Surgeon, Mr Grossbard, support a diagnosis of disc prolapse in the applicant’s lower back, (L5/S1). It was not contested that the applicant from at least August 1994, where certified as fit to do so, resumed light duties when they were provided by the respondent for 3 hours per day 5 days per week until being certified by Dr Lane as being fit to perform “light work 4 hrs per day calibrating and fork-lift driving”. The applicant attempted the extra time required, although he claimed to feeling “no good when working long time”.

There was a three week Christmas break to approximately 15 January 1995 when the applicant resumed light duties at 4 hours per day. Prior to the resumption of work the applicant consulted Dr Pereira on 10 January 1995 complaining that he found 4 hours per day too difficult to cope with. Dr Pereira referred the applicant to Mr Grossbard for assessment before certifying him as fit for any further duties.

To obtain Certificates of Capacity the applicant continued to see Dr Lane and on 16 January 1995 the doctor certified him as fit for light duties for 4 hours per day between 16 January 1995 and 23 January 1995 (see Exhibit R3). On 23 January 1995 Dr Lane again certified the applicant as fit for light duties on the same hours until 30 January 1995 (see Exhibit R4). However on 30 January 1995 Dr Lane certified the applicant as only fit for “light work 3 hrs/day (pain has increased on 4 hrs)” until 13 February 1995.

The receipt of the lastmentioned certificate galvanised the respondent into action because, as Savva conceded, the respondent was of the view that at that time the applicant was capable of 4 hours work per day. The action it took was to invite Dr Lane to visit its work site to examine the work site and stations and inspect the light duties being offered. Savva conceded that during the treating doctor’s attendance at the work site Savva “... may enquire as to whether a certificate would be altered to 4 hours”. I understood this evidence to mean that he saw no difficulty in directly seeking from the treating doctor a medical certificate to accord with the respondent’s view of the employee’s work capacity.

Section 103(1)(d) of the Accident Compensation Act overrides the common law privilege a patient may claim concerning medical examinations, to the extent that it requires the injured employee to authorise the provider of a medical service to give information regarding the relevant medical service to, amongst others, the employer. It is doubtful that such an authorisation also contemplates the employer telephoning, meeting with and directly seeking medical certification to accord with the employer’s view of the employee’s capacity in the absence of and without the direct consent of the employee. There was some dispute over whether the applicant was invited to attend the meetings with his treating doctors on site and if he was invited whether this was arranged in such a way as was convenient for his attendance. There was certainly no evidence called to show that permission was sought from or given by the applicant for his treating doctors to be approached in his absence for anything other than information regarding the service provided by them relevant to the claim.

Dr Lane did attend the work site on 1 or 2 February 1995 and, although Savva had no specific recollection of doing this in this case, he agreed he may have then arranged an appointment for the applicant or at the very least haved asked the applicant to go back to Dr Lane to obtain another certificate on or about 4 February 1995. By this stage Savva was aware that Dr Pereira was treating the applicant, receiving on 3 or 4 February a medical certificate from Dr Pereira (see Exhibit R7) which certified the applicant as fit for modified duties from 2 February 1995 to 16 February 1995 and stating:

“Mr Garry Grossbard. Consulted Mr Garry Grossbard who states that patient should refrain from continuous standing. Job should allow sitting and standing as required. No continuous bending or lifting. Continue 3 hrs a day light duties

(1) No lifting > 2 kg.

(2) Sit and stand as desired. ... please provide chair for patient.

(3) No continuous bending of back or lifting.”

In accordance with the respondent’s wishes the applicant did see Dr Lane on 4 February 1995 and a certificate was issued by Dr Lane on 6 February 1995. It is doubtful that that certificate was ever given to the applicant. The certificate purports to countermand Dr Lane’s earlier certificate on 30 January 1995 stating that the applicant was fit for alternative duties from 6 February 1995 to 20 February 1995 “light work as discussed at work site assessment on 1 February 1995 - 4 hrs/day”.

By the time Savva had the last of Dr Lane’s certificates he also had Dr Pereira’s certificate (see Exhibit R7). Indeed, Savva conceded that Dr Lane’s certificate was not provided by the applicant instead he, Savva, asked Dr Lane to send him the last certificate “... purely as a matter of record no other reason”. Contrary to this last statement Savva did use the lastmentioned certificate relying on it and Dr Lane’s site visit to prepare the first draft return to work offer dated 16 February 1995 (see Exhibit R9). That document also refers to and relies on a medical opinion of the insurer’s doctor Mr Elsner (without disclosing the extent of that opinion).

Savva conceded disappointment on receiving Dr Pereira’s certificate for 3 hours work per day. The effect of Dr Pereira’s report was to require the respondent to arrange a further site visit and renew its efforts to convince the applicant’s treating doctor that the applicant could work longer hours and perform the light duties designated as suitable employment by the respondent.

The site visit by Dr Pereira was not arranged until 23 February 1995 well after the respondent had prepared and presented to the applicant the first draft of a return to work employment offer on 16 February 1995.

THE EVIDENCE

At hearing written medical certificates, reports and extracts of reports were tendered in evidence without objection. However, the applicant’s Counsel objected to the admission of hearsay evidence by the respondent’s witnesses of conversations with the applicant’s doctors and third parties. Insofar as the respondent attempted to demonstrate that it had acted reasonably in the period leading up to and including the termination of the applicant’s employment, it sought to admit the evidence of the conversations held, not as proof of the truth of the contents of the conversations; rather as evidence that the respondent had sought and received advice which it acted upon, irrespective of whether the contents of and the giving of that advice was tested and proven to be correct. Broadly speaking the evidence was admitted under s.60 of the Commonwealth Evidence Act 1995 because it was relevant for a purpose other than proof of the facts intended to be asserted by the representations allegedly made. Notwithstanding its relevance to any argument under s.170DE(2) of the Act as it emerged in the course of the hearing this approach to the evidence left the respondent without proof, on the balance of probabilities, of an alleged statement attributed to Dr Pereira by Savva on the applicant’s last day of employment where the doctor agreed that the applicant was capable of performing certain duties, specifically excluded by Dr Pereira in a medical certificate provided to the applicant the day beforehand.

As it turned out the medical certificate issued on 12 July 1995 (see Exhibit R56) certified the applicant as fit for modified duties from 12 July 1995 to 19 July 1995 with the following work restrictions: “Light duties 5 hrs a day 5 DAYS a week ® with beforementioned restrictions. Please exclude CB beam machine at this stage.”

Essential to its decision to terminate the applicant’s employment on 13 July 1995 was his alleged refusal on that day to perform duties on the CB beam machine and his failure to honour an alleged agreement with the respondent to attend on Dr Pereira and obtain a medical certificate certifying him as fit for light duties, including that which the certificate obtained excluded.

Putting to one side the s.170DF(1)(a) claim, because the respondent carries the burden of proving that there was a valid reason at the date of termination, its failure, amongst other things, to prove on the balance of probabilities that the medical certificate was not a true reflection of the applicant’s capacity to perform the duties it offered as suitable employment pursuant to the Accident Compensation Act means that any allegation contradicting the medical certificate cannot amount to a sound, defensible or well founded reason for the termination (see Selvachandran v Peteron Plastics Pty Ltd (unreported) Northrop J. No VI 1322R of 1994 at pages 6 et seq.).

It may also be said that, the respondent’s failure, in the light of the provisions of the Accident Compensation Act to offer suitable employment, in the sense defined by the lastmentioned statute (see s.122(1)(b)), is in itself evidence of a lack of substantive fairness.

THE EVENTS LEADING UP TO THE TERMINATION

As already indicated the first return to work offer was originally formulated in the absence of the treating doctor’s certificate, his report or site inspection. The offer seems to have been generated by a letter from the insurer to the respondent dated 16 February 1995 (see Exhibit R8) referring to a medical report dated 8 February 1995 received by the insurer from Dr Lane suggesting that the applicant continue with 4 hours work per day from 6 February 1995 to 20 February 1995. Given the medical material available to it the insurer then felt and recommended that a return to work offer be made. Notwithstanding his knowledge of the medical certificate of Dr Pereira issued on 2 February 1995, Savva drafted the offer without any consideration of the matters raised in the supervening medical certificate. In his evidence-in-chief Savva described the offer as “... something put in writing, that details the worker’s current restrictions, the light duty job tasks that the worker is capable of doing, and sets a guideline time frame for hours per day to be worked by the worker, and also just spells out different conditions that may apply to the worker’s rehabilitation.”

The draft return to work offer was, according to Savva, read to the applicant at a meeting with the applicant on 20 February 1995. However, before that meeting a further medical certificate was issued by Dr Pereira on 17 February 1995 again restricting the applicant to modify duties between 17 February 1995 and 24 February 1995 at 3 hours per day (see Exhibit R10). The medical certificate makes references to a telephone conversation with Savva and an arrangement for a job site visit on 23 February 1995. It was Savva’s evidence that he faxed a copy of the return to work offer to Dr Pereira and then had a telephone discussion with the doctor on 17 February 1995.

It is clear that at the time the respondent discussed the return to work offer with the applicant the applicant was still certified by his treating doctor as fit for only 3 hours work per day on light duties. There was yet to be a determination by the treating doctor whether that state of affairs should alter following any site visit and any further medical examination.

It should also be kept in mind that the draft return to work offer contained the following statement:

“This offer will be held open until Friday, 24th February 1995 but request that you note that, if you failure to comply with this offer, MMI Workers Compensation Ltd may review your case and could terminate your Workcover entitlement (sic).”

The termination of workcover payments is a very serious sanction to impose on an employee and it is to be expected that such a threat would only be considered appropriate where due consideration had been given to all the medical certificates available at the date of making any return to work offer.

The meeting on 20 February 1995 was held between the applicant, Savva and Hooper, the purpose being to read to the applicant and discuss the contents of the draft document. It was not contested that at the meeting Savva read the contents of that document to the applicant and they all went through the various tasks referred to as duties approved by the applicant’s “treating doctor”. In the context of that discussion and the return to work offer the only treating doctor referred to was Dr Lane who by that stage had not medically examined the applicant since 4 February 1995.

In his evidence-in-chief Savva told the Court that during the meeting with the applicant and Hooper, “I pointed out to the worker that we were - our return to work offer had been formulated based on the medical opinion we had before us at the time ...”. On the evidence this statement is plainly inaccurate.

It is the respondent’s contention that the applicant was unco-operative in the rehabilitation program and, for instance, when the first return to work draft offer was discussed with him he was not happy to perform most of the light work duties set out in the offer. This is disputed by the applicant. It is a feature of the relationship between the parties in the months preceding the termination that there was considerable disagreement as to the applicant’s ability to perform all the tasks offered in the hours of work the respondent believed represented appropriate progress in the rehabilitation program. Given the respondent’s preparedness to disregard existing medical certificates when formulating its draft offer, it is not surprising that the applicant resisted any pressure on him to perform duties over periods other than those according with his treating doctors’ recommendations.

It is not the task of this Court to determine the applicant’s fitness to perform one duty in preference to another or to determine whether the applicant was able to work longer hours or not. The best the Court can do is to rely on the medical certificates obtained by the applicant throughout the relevant period. Where the certificates conflicted with opinions of the insurer’s doctors, the respondent or other work recovery experts it does not follow that the applicant was acting unreasonably, in breach of his contract of employment or any agreement to comply with any return to work offer, if he relied on the medical certificates given to him by his treating doctor.

Medical certificates and medical reports comprised the bulk of the 65 exhibits tendered in evidence by the respondent. At various times and on various dates the applicant was certified as being unfit to perform certain duties and unfit to work for the number of hours contained in the subsequent formal return to work offers dated 23 February 1995 and 14 June 1995 respectively. On the evidence there was no occasion on which the applicant did not attend work or attempt to perform duties required of him where certified as fit to do so. Inasmuch as there were periods of absence all such periods were the subject of an appropriate medical certificate.

Obviously there was pressure on both sides. The respondent was keen to ensure that the employee returned to full time duties as soon as possible and the injured employee was clearly concerned to retain his employment and return to work at a pace that suited his injury related incapacity. Because of these pressures, it appears that the respondent, on its part, behaved unreasonably towards the applicant and he, in turn, was voluble in his response to the pressure he perceived being applied as well as being suspicious of the respondent’s motives. For instance, the applicant received three written warnings in the period between 15 May 1995 and the date of termination. This is an employee who until his injury had an excellent work record. The first warning (see Exhibit R35) he refused to sign. It stated:

“You are hereby warned that your work record is unsatisfactory, in that:

Your non-attendance is becoming excessive.”

In the weeks prior to the receipt of the first warning the applicant had on 5 May 1995 been certified as fit for modified duties for 6 hours per day 5 days per week. He had one day off work on 12 May 1995 because of increased back pain and on that day his treating doctor certified him as unfit for that day’s work but fit to resume modified duties on the same hours between 13 May 1995 and 19 May 1995. Given the medical certification and the applicant’s attendance at work in the periods where provided for by his doctor the first warning from a supervisor was not in any way justified. This warning appears to have been accepted without reservation by the respondent’s management.

The second warning (see Exhibit R51) came from Hooper on 26 June 1995. Again the applicant refused to sign it. In that warning Hooper stated:

“You are hereby warned that your work record is unsatisfactory, in that:

Your belligerant (sic) attitude towards the company and

management and “frustration of contract”.

Can’t remember how many days he worked last week.”

The second warning came about because the respondent believed that the applicant was not meeting his obligations under the then applicable return to work offer dated 14 June 1995 (see Exhibit R48); that is to say, he was taking time off work and resisting certain duties and, particularly, the duty relating to CB beams claiming that it hurt his back. Savva described the applicant at this meeting as “... very animated, very vocal and very resistant to what we were asking him to do which was to comply with his rehabilitation and attempt to do - attempt to fulfil the job tasks.”

As with the first warning there is simply no factual basis for saying that the applicant took any time off work with his back injury which was not covered by a medical certificate and, whilst he complained about the effect various tasks had on his back, when required to do so he performed these duties. Indeed he was then working 6 hours per day.

Notwithstanding any return to work offer the medical certificates from time to time directed the employer to provide certain assistance to the applicant to enable him to continue in the rehabilitation program and also excluded certain duties where the doctor deemed it appropriate. The lastmentioned return to work offer was subject to monitoring of the applicant’s fitness by the applicant’s own treating doctor and other medical personnel and, as with the earlier return to work offers, carried a sanction if there was non-compliance. In this instance it was:

“This offer is effective immediately and request you note that, if you fail to comply, the company will not have work available outside this offer and therefore, you will continue on sick leave (unpaid).”

By the date of the abovementioned offer the insurer had ceased making payments of compensation on 15 April 1995 and there was a dispute notified by the applicant for conciliation under the Accident Compensation Act.

The third and final warning came on 13 July 1995, which was the date of termination (see Exhibit R58). Hodgson gave this warning which stated:

“You are hereby warned that your work record is unsatisfactory, in that:

You have further frustrated your contract and have not

followed rulings layed (sic) down by concilliation (sic).”

THE CONCILIATION PROCESS

The return to work offer formalised on 23 February 1995 (see Exhibit R13) did, on the face of that document, give consideration to Dr Pereira’s views in formulating the offer to the applicant. Part of the offer made was that the applicant agreed to return to a work program with the objective of performing 6 hours of work for 5 days per week on the following program:

Week commencing 20/02/95 3 hrs/day

Week commencing 27/02/95 4 hrs/day

Week commencing 06/03/95 5 hrs/day

Week commencing 03/04/95 6 hrs/day

The offer expressly provided for monitoring of the applicant by others including his treating doctors. It was agreed by the respondent’s witnesses that the return to work offers were not rigidly enforced as clearly the employee’s hours and duties may be subject to further medical opinion certifying the employee as unfit; for instance, to resume the numbers of hours of work proposed in the offer on a particular date.

The formal return to work offer made on 23 February 1995 reiterated the sanction for non-compliance contained in the earlier draft offer; namely:

“This offer will be held open until Friday, 3rd March 1995 but request that you note that, if you fail to comply with this offer, MMI Workers Compensation Ltd may review your case and could terminate your Workcover entitlement.”

On 24 February 1995 Dr Pereira provided a medical certificate amongst other things certifying the applicant as fit to commence the nominated duties at 4 hrs per day from 27 February 1995 to 6 March 1995. On 3 March 1995 Dr Pereira provided a further medical certificate (see Exhibit R16) for the period 3 March 1995 to 10 March 1995 stating:

“... claims to be in a lot of pain and struggling. However encouraged to continue with 4 hr a day for moment and to keep working ... Continue light duties 4 hrs a day 5 days a week

1. Filing water jackets

2. Spraying the die

3. Shot blasting relieving only

For time being no macbro machine. No bending or twisting of back please. Please provide seat for patient as requested and work at own pace.”

By a report dated 8 March 1995 from the applicant’s treating surgeon, Mr Grossbard, to the respondent’s work recovery consultant (see Exhibit R17) the surgeon made a number of observations about the tasks being required of the applicant and the way in which they could be performed whilst noting that the hours of work should then remain at 4 hrs per day.

Because of the abovementioned medical opinions it is apparent that by 6 March 1995 the applicant was not medically capable of meeting the timetable under the return to work offer of 5 hrs of work each day. Indeed, it was not until 17 March 1995 that the applicant was certified as being fit to perform light duties for 5 hrs per day 5 days per week (see Exhibit R20).

Notwithstanding the applicant’s medical certificates the insurer on 14 March 1995 took it upon itself to give formal notice to the applicant (and the respondent) allegedly pursuant to the Accident Compensation Act terminating the applicant’s payments of compensation from 15 April 1995 (see Exhibit R19). The letter to the applicant states amongst other things:

“After considering all available information we have determined that you are no longer entitled to weekly payments (Section 114(2)(b)(ii)) as:

· You did not participate in an occupational rehabilitation service

or a return to work plan. (Section 93B(2)(c)(i) and 93B(4))

· You did not make every reasonable effort to return to work in

suitable employment at your place of employment in co-

operation with your employer and the Authority or authorised

insurer. (Section 93B(2)(c)(ii) and 93B(4)).”

Interestingly enough the grounds relied upon by the insurer for terminating the payments of compensation include references to the opinions of the insurer’s examining doctor Mr Elsner and the work site visits by Dr Lane and Dr Pereira stating:

“It is noted that Dr Lane examined you on 4 February 1995, and certified you as being fit for 4 hrs per day, as a result of the work site visit. However, on 2 February 1995, you obtained a medical certificate from Dr P. Pereira, who had not seen you previously, certifying you as only fit for 3 hrs per day. It is further noted that Dr Pereira also performed a work site visit on 23 February 1995. It was agreed that you were capable of performing 4 hrs per day and so commenced on Monday, 27 February 1995. You were due to increase your hours to 5 hrs per day as at 6 March 1995, however you did not.

Therefore, it is the decision of MMI Workers Compensation (Victoria) Limited that you unreasonably did not accept an offer of suitable employment or you did not make every reasonable effort to return to work at your place of employment and in co-operation with your employment pursuant to Sections 93B(2)(c)(i) and (ii), 93B(4) and 114(1) of the Accident Compensation (Workcover) Act 1985, and as at 15 April 1995 you will no longer be entitled to weekly payments of compensation.”

There is no reference whatsoever to any of the medical certificates provided by Dr Pereira over the relevant period from the date of the then operative return to work offer.

The letter from the insurer and the grounds supporting the decision to terminate the applicant’s payments were also sent to the respondent under cover of a letter of the same date. I infer from the respondent’s obvious acceptance of the statements made by the insurer in its correspondence and accompanying statement of grounds that the respondent at the very least tacitly endorsed the insurer’s position, notwithstanding the respondent’s knowledge of the contents of Dr Pereira’s medical certificate in the relevant period and it’s further knowledge of Mr Grossbard’s involvement in supplying a report clearly contradicting the grounds relied on for terminating the payments of compensation.

The applicant collapsed at his place of employment on 29 March 1995 suffering an aggravation of his back injury. There was a period of further total incapacity as well as the Easter holidays following which time the applicant returned to work on light duties between 14 April and 2 May 1995 without interruption. In this period the conciliation of the dispute concerning the termination of his weekly payments occurred on 24 April 1995 at the work site. The conciliation was conducted by a conciliation officer, Dennis MacKinlay. The employer and insurer were represented and the applicant attended and was assisted by an interpreter. The Certificate of Conciliation Outcome (see Exhibit R28) states:

“As a result of negotiations the insurer and employer offered to review the present decision following two months of the worker attempting to achieve a full time return to work at the selected duties. To this end the employer agreed to co-ordinate the return to work, having regard for the opinions of the treating doctors and the availability of work within the plant. The worker was encouraged to attempt as wide a range of duties as possible and discuss alternative medication with his doctor.

The parties agreed to the agreement, the worker with some reservations.”

Essentially the outcome of the conciliation seems to have left the applicant to persevere with the 23 February 1995 return to work offer duties and hours in return for a review of the decision to terminate payments.

The evidence supports a conclusion that the applicant attempted to comply with the return to work offer requirements, however, the employer’s behaviour became increasingly oppressive. The first warning on 15 May 1995 was followed by the applicant being placed on CB beam duties on 17 May 1995, duties which Mr Grossbard on 8 March 1995 had considered inappropriate. These were also duties which increased the applicant’s complaints of pain and led to a further two days’ absence from employment consequent on a medical certificate provided by Dr Pereira (see Exhibit R36) stating:

“Patient claims to be in a lot of pain when working on CB beam.

Today has had spasm and swelling in the lower back. Patient has seen Mr Grossbard, who feels that the new job that he is working in could be exacerbating his injury. Today lower back swollen with decreased range of movement. “

Indeed in a letter dated 15 May 1995 to Dr Pereira, a copy of which was also sent to the respondent’s work recovery consultant, Mr Grossbard made it clear that the CB beam job was not an appropriate duty for the applicant to perform and, by placing the employee in this work the respondent was exacerbating an already difficult relationship with the employee as well as jeopardising his return to full time employment.

The respondent agreed that it was “frustrated” by the surgeon’s letter whilst acknowledging that it knew that the applicant had difficulties with the CB beam duty.

By early June the applicant was no closer to resuming full time duties at 7.8 hrs per day 5 days per week as contemplated by the respondent and its return to work offers. On 31 May 1995 Dr Pereira certified the applicant as fit for duties for 4 hrs per day 5 days per week applying the same restrictions as previously applied between 3 June 1995 and 9 June 1995. Even with that medical certificate and a further certificate issued on 9 June 1995 (see Exhibit R47), the applicant was at that time unable to resume work because the respondent was allegedly unable to offer him suitable light duties. One of the issues exacerbating the ongoing conflict between the applicant and the respondent was the availability of certain light duties and the applicant’s alleged unwillingness to perform duties the respondent deemed to be suitable employment. Insofar as the light duties were concerned, I accept that from time to time the availability of such duties changed reflecting the change in operations in the respondent’s plant. However, the evidence supports a finding that at all relevant times and since the termination the respondent has a range of light duties which it rotates its employees and injured employees through.

A further return to work offer was made by the respondent on 14 June 1995 (see Exhibit R48) following an inspection of the site and the duties to be offered to the applicant by a consultant in occupational health and safety, Dr Maurice Wallin. The offer contemplated the following hours of work 5 days per week:

“Date commencing 14/06/95 6 hrs/day

Week commencing 03/07/95 7.8hrs/day (normal shift)”

The return to work offer also referred to six job tasks in what was referred to as the High Pressure Area to be rotated at 4 hourly intervals. It was alleged by the respondent that at the time of that offer it was not in a position to provide tasks in the Low Pressure Area, which tasks were previously performed by the applicant and preferred by Mr Grossbard. The fifth task included in the latest return to work offer related to working on CB beams which until then had been the most contentious task allocated to the applicant.

Following the return to work offer on 16 June 1995 Dr Pereira certified the applicant as fit to perform work duties for 6 hours per day 5 days per week between 19 June 1995 and 23 June 1995. The respondent concedes that the applicant did return to perform the duties set out in the return to work offer for 6 hours per day until 22 June 1995 when Dr Pereira noted an increased level of back pain and certified the applicant as unfit for work on 22 and 23 June 1995 but fit to resume on the same hours between 24 and 30 June 1995. On the following Monday, 26 June 1995, the applicant resumed work for the day on the duties allocated to him and it was on that date that Hooper saw fit to give the second warning already detailed above. Again there is simply no basis for saying that the applicant took time off work without medical certification. The evidence shows that he attempted the duties asked of him in the period of his return and this was regardless of whether or not he felt those duties were causing him problems with his back. In these circumstances, it is remarkable that the respondent made the decision to formally warn the applicant when he was notionally complying with the terms of the current return to work offer. It seems that one of the reasons for giving the second warning was that on that date; although the applicant had worked on other duties, Savva believed that the applicant had refused to perform duties on the CB beam. No evidence was called by the respondent to establish that there was any request or refusal in connection with this task on that date which could in any way justify the warning given.

Following the second warning the applicant continued duties as directed until 30 June 1995 when he was certified by Dr Pereira as unfit until 5 July 1995 (see Exhibit R52). On 5 July 1995 Dr Pereira’s medical certificate (see Exhibit R53) notes that the applicant “wants to try again” and the doctor certified the applicant as fit to resume his duties between 5 and 12 July 1995 but only for 4 hours per day 5 days per week.

On 11 July 1995 a further conciliation conference was conducted to review the conciliation of 24 April 1995 and to deal with a new dispute between the applicant and the insurer concerning the discontinuance by the insurer of compensation for physiotherapy expenses some months earlier.

At the further conciliation conference it was agreed that amongst other things the applicant reasserted his belief that he could not do the CB beam duties. It was further conceded in evidence by the respondent that since at least May 1995 the applicant had not been directed to perform duties on the CB beam in compliance with Dr Pereira’s requirements.

It is contended by the respondent that at conciliation the applicant agreed to perform CB beam duties and further that he had a clear understanding of what duties were included in the last return to work offer.

Exhibit R35 is a copy of the Certificate of Conciliation Progress dated 11 July 1995 which states:

“Agreement of Work Trial:

Working at the presently agreed duties, and commencing Thursday 13.07.95; -

2 weeks working every working day at 5 (five) hours each day,

graduating to;

2 weeks working every working day at 6 (six) hours each day,

graduating to;

2 weeks working every working day at 7 (seven) hours each

day, graduating to;

full time.

Physiotherapy to be available at once per week while working 5 hours daily, and three times per fortnight while working 6 and 7 hours daily, and to continue at this rate for the first few weeks of full time. Physio is not to continue long term.”

In itself the abovementioned document does not resolve the dispute between the parties. On the evidence I am not satisfied that the applicant fully understood at the meeting that he would be returning to CB beam duties. Whilst an interpreter was present during the first two hours of the meeting the last hour was conducted without an interpreter and in accordance with my earlier observation of the applicant’s understanding of spoken English, I am of the view that the applicant would have been at a distinct disadvantage without any interpreter present during the latter part of the conciliation process.

It is alleged by the respondent that at the end of the conciliation Savva noted that the current medical certificates were in conflict with the terms of the agreement and because of this it is alleged that the conciliator requested the applicant return to his treating doctor and obtain a medical certificate “... that would allow from Thursday, 13 July and increase to 5 hours per day and in the interim which would be 12 July the following day Thu would return to work and would be - it was agreed that he would be allowed to work at the current restriction of 4 hrs per day.”

My understanding of Savva’s evidence on the abovementioned point is that the concern was with the hours the applicant was then certified to perform not the duties, as there was no current medical certificate specifically precluding the CB beam duty. Savva’s evidence on this matter is contradictory because he subsequently asserted that the applicant was asked to obtain a medical certificate that would comply with the agreement. The evidence of any request by the conciliator is hearsay evidence. Nevertheless the request if made could be nothing more than just that because ultimately the doctor had to must make an expert decision on what work the applicant was medically capable of performing.

On 12 July 1995 the applicant resumed employment and was placed on CB beam duties for the first time since at least mid May 1995. On the same date he attended Dr Pereira and was certified as fit for modified duties from 12 July 1995 to 19 July 1995 with the following restrictions (see Exhibit R56):

“Light duties 5 hrs a day 5 days a week ®

with beforementioned restrictions.

Please exclude CB beam, at this stage.”

THE TERMINATION

It would not be overstating matters to observe that the respondent was angered by what, as it turns out, it erroneously perceived as a breach of the agreement reached at conciliation. I find that any agreement to work at “presently agreed duties” was necessarily subject to monitoring by the treating doctor as was always apparent from the return to work offer made on 14 June 1995. If there was any further agreement to obtain a medical certificate certifying the applicant as fit for the duties set out in the return to work offer on 14 June 1995 then that agreement could only be sensibly interpreted as being one requiring the applicant on his part to attend the doctor for medical examination, and if the medical opinion was that he was fit to perform those duties, including the CB beam duties, then a certificate would issue accordingly.

It is Savva’s evidence, unsupported by any evidence called from any of the persons to whom he spoke, that he telephoned a number of people on receipt of the medical certificate on 13 July 1995; including Dr Pereira. He alleges that in the course of the conversations he held with Dr Pereira, Dr Pereira told him “... that Thu had requested its (CB beam) exclusion and was led to believe by Thu that that was acceptable within the terms of the previous - in terms of the agreement that was reached at conciliation. I pointed out to Dr Pereira that that was not the case ... After a little bit of discussion Dr Pereira said that if that is - I also pointed out to Dr Pereira that this was a serious situation from the company’s point of view and his refusal to do CB beam was contrary to the agreement. Dr Pereira said that if that was a big deal then send the worker back and he will give him a new certificate including CB beams and I noted that point that he had said that (sic).”

Dr Pereira was not called by the respondent to give evidence of the abovementioned telephone discussions and because of this the respondent has failed to substantiate its claim that the medical certificate was not an accurate reflection of the applicant’s work capacity. Even if Dr Pereira was called to give evidence I would be very surprised if a doctor resiled from the truth and accuracy of a medical certificate provided concerning a worker’s capacity to perform certain work. At all times the applicant was able to and did rely on the medical certification given to him which excluded a particular duty as suitable employment at least for the period of the certificate.

Notwithstanding the doctor’s alleged willingness to provide a new certificate to accord with the respondent’s wishes, the respondent proceeded to terminate the applicant’s employment without giving him the opportunity to attend on Dr Pereira and obtain another certificate. In fact, according to Savva, the decision to terminate the applicant was made during discussions with the insurer and Dr Pereira, pre-empting any proper opportunity for the applicant to defend himself against the allegation of breach of an alleged agreement.

The applicant was not present during all of the discussion the respondent claimed it had with its insurers, the conciliator and Dr Pereira; neither was his presence considered necessary when the respondent telephoned both the conciliator and the treating doctor.

On the morning of 13 July 1995 after the respondent had made various telephone calls the applicant was called to a meeting with Hodgson, Savva, a union representative and an interpreter. It was Hodgson’s evidence that he explained to the applicant the importance of the CB beam function as a light duty and also told the applicant of the discussions with Dr Pereira stating that “... if he wasn’t prepared to do the bearing beam job, we had basically exhausted the opportunity for employment and would have to be terminated.” It is alleged that the applicant refused (and this is contested by the applicant) at that meeting to do the task and it was only after he was terminated that he said that he would go back to his doctor presumably to obtain a medical certificate the respondent believed complied with its understanding of the agreement allegedly entered into at the date of conciliation.

It was Hodgson who gave the applicant his third and final warning at that meeting. It was conceded by Hodgson that the alleged refusal to perform a particular duty was confined to events occurring at the meeting, as until then, the applicant had performed the tasks required of him in the period immediately preceding the meeting.

On the date of termination the applicant on presentation of the medical certificate was not offered any work duties and on that date the CB beam duties were performed by another employee. It is the applicant’s evidence that he believed that the respondent had previously agreed to exclude the CB beam job and he had not performed that job since mid May 1995. He alleges that he was given a warning at the last meeting and shortly thereafter he was terminated. This was before he was given any opportunity to speak to Dr Pereira, much less attempt to try and comply with the respondent’s wishes. It is the applicant’s evidence that he wished to retain his job but at the meeting was denied the opportunity to do this.

FINDINGS

My original observation indicates that the finding of the Court should be that the respondent has failed to prove on the balance of probabilities that there was a valid reason for terminating the applicant’s employment on 13 July 1995. I am not satisfied on the evidence that on 13 July 1995 there was any direction to the applicant to perform the CB beam duties. If there was it is still necessary for the respondent to satisfy the Court that any such direction as was given was both lawful and reasonable (see Cox v South Australian Meat Corporation, (1995) 60 IR 293 at pages 297 et seq. and Izdes v L.G. Bennett & Co Pty Limited t/as Alba Industries, Beazley J., No. WI 307 of 1994 at pages 24 et seq.).

Because of the existing medical certification any direction from the respondent as alleged would have been unreasonable and, consequently, any failure to agree to perform CB beam duties could not constitute a valid reason for termination. It also follows from my earlier observations that any direction or alleged agreement to obtain a medical certificate to accord with the respondent’s view of the applicant’s capacity would not be a lawful or reasonable requirement under the contract of employment.

On the evidence I am not satisfied that the reason or any one of the reasons for termination on that date was a reason prohibited pursuant to s.170DF(1)(a) of the Act. In other words, any temporary absence because of his injury was not an operative factor in determining that the applicant’s employment should be terminated on 13 July 1995.

In the event that I am wrong in concluding that there was no sound, defensible or well founded reason for terminating the applicant’s employment on the date of termination, the evidence clearly supports a conclusion that the termination was in breach of s.170DE(2) of the Act; in that it was harsh, unjust and unreasonable. Clearly it was never open to the employee to agree to obtain a medical certificate from a medical practitioner adopting the respondent’s view of the applicant’s capacity if the medical practitioner acting bona fide thought otherwise. Moreover, because of the medical certificate it was unreasonable to require or insist on the applicant agreeing to perform the CB beam duties.

REMEDIES

The 42 year old applicant seeks reinstatement. He has not been gainfully employed since the date of termination. The respondent has a large workforce and still has light duties available at its work site. In these circumstances, I find that reinstatement is a practical and an appropriate remedy.

I note that there is outstanding litigation between the applicant, the employer and its insurer in the County Court of Victoria. That litigation relates to, amongst other things, the ongoing dispute concerning the cessation of compensation payments to the applicant in April 1995. Following the cessation of the payments and as at the date of termination the applicant was being paid $13.00 per hour for the hours he was employed on light duties.

Section 170EE(1) of the Act empowers the Court to, amongst other things, appoint the applicant to the position in which he was employed immediately before the termination. In making the order for reinstatement it is contemplated that the applicant, who was as at 13 July 1995 employed on 5 hours per day 5 days per week, will be returned to the same position held on that date at the hours then applicable. In view of the evidence concerning the applicant’s continuing back injury it is to be hoped that commonsense will prevail and consideration will be given to the provision of an up to date medical certificate regarding the hours and duties appropriate to the applicant’s present work capacity. Inasmuch as I have also ordered payment of remuneration lost by the employee because of the termination the calculation of that amount is best arrived at by reference to the matters raised by His Honour Justice Northrop in his decision in Johns v Gunns Limited (unreported) No. TI 148R of 1994. Because of these lastmentioned matters I have included an order granting both parties liberty to apply on reasonable notice.

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The respondent reinstate the applicant to the position in which he was employed immediately prior to the termination of his employment.

2. For all purposes the employment of the applicant by the respondent be deemed to be continuous from the date of termination on 13 July 1995 to the date of reinstatement.

3. Within 14 days of the date of the making of these orders the respondent pay to the applicant the remuneration lost by reason of the termination of his employment.

4. There be liberty to the parties to apply on the giving of reasonable notice.

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

I certify that this and the preceding thirty (30) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.

Associate:

Date: 15 December 1995

Solicitors for the Applicant: Ryan Carlisle Thomas

Counsel for the Applicant: Mr Richard Niall

Solicitors for the Respondent: Freehill Hollingdale & Page

Counsel for the Respondent: Mr Frank Parry

Date of hearing: 6, 8, 9 & 10 November 1995

Date of judgment: 15 December 1995

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether VALID REASON for termination - whether refusal to perform a duty where a medical certificate certifies the employee as unfit to perform the duty is a breach of the contract of employment - whether it is lawful or reasonable to require an employee to obtain a medical certificate specifically certifying the employee as fit to perform certain duties - whether termination HARSH, UNJUST OR UNREASONABLE - REINSTATEMENT

Industrial Relations Act 1988 ss.170DC, 170DE(1), 170DE(2), 170DF(1), 170EE(1)

Accident Compensation Act 1985 (Vic) ss. 4A, 103(1), 122(1) and (3)

Commonwealth Evidence Act 1995 s.60

CASES: Selvachandran v Peteron Plastics Pty Ltd, (unreported) Northrop J., No VI 1322R of 1994

Cox v South Australian Meat Corporation, (1995) 60 IR 293

Izdes v L.G. Bennett & Co Pty Limited t/as Alba Industries, (unreported) Beazley J., No. WI 307 of 1994

Johns v Gunns Limited (1995) 60 IR 258

VAN THU NGUYEN -v- NISSAN CASTING AUSTRALIA PTY LTD

No. VI 3839 of 1995

Before: Judicial Registrar Millane

Place: Melbourne

Date: 15 December 1995

INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 3839 of 1995

B E T W E E N :

VAN THU NGUYEN

Applicant

AND

NISSAN CASTING AUSTRALIA PTY LTD

Respondent

MINUTES OF ORDERS

Judicial Registrar Millane 15 December 1995

THE COURT ORDERS THAT:

1. The respondent reinstate the applicant to the position in which he was employed immediately prior to the termination of his employment.

2. For all purposes the employment of the applicant by the respondent be deemed to be continuous from the date of termination on 13 July 1995 to the date of reinstatement.

3. Within 14 days of the date of the making of these orders the respondent pay to the applicant the remuneration lost by reason of the termination of his employment.

4. There be liberty to the parties to apply on the giving of reasonable notice.

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

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