DECISION NO:568/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - NO VALID REASON - Termination for reasons including TEMPORARY ABSENCE FROM WORK DUE TO ILLNESS OR INJURY - History of sexual harassment - Termination for reasons including the applicant’s SEX - COMPENSATION is not available under the Act for mere stress distress humiliation or the like arising from the termination of employment, which does not amount to a psychiatric illness, or the exacerbation of an existing psychiatric illness.

Industrial Relations Act 1988, ss: 170DC, 170DE(1), 170DF(1)(a), 170DF(1)(f)

Regulation 30D


Aitken -v- The Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch, 1995, 63 IR 1

Allan James Duncan -v- King Fleet Holdings Pty Limited trading as Lyster Removals and Storage, Industrial Relations Court of Australia, Patch JR, 1 August 1995, unreported

MELISSA EGGLETON v KINGSGROVE MEDICAL CENTRE PTY LTD

NI 1700 of 1996


Before:                       PATCH JR
Place:                         SYDNEY
Date/s of hearing:     30 OCTOBER 1996 & 1 NOVEMBER 1996
Date of judgment:    1 NOVEMBER 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 1700 of 1996

BETWEEN:

AND

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.   I declare that the termination of the applicant's employment was unlawful.

2.   The determination of the Court on the question of the quantum of compensation is reserved.

3.   I set a timetable for written submissions on the question of the quantum of compensation as follows:

            (a)       The applicant's written submissions on the question of quantum of compensation to be filed and served no later than 4 pm, Friday, 8 November 1996.

            (b)       The respondent's written submissions on the question of compensation to be filed and served no later than 4 pm, Friday, 15 November 1996.

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

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 1700 of 1996

BETWEEN:

AND

REASONS FOR DECISION

Delivered ex tempore - revised from the transcript

The applicant in this case claims that the termination of her employment was unlawful and seeks compensation. 

The applicant does not seek reinstatement, stating that it is impracticable.  The respondent agrees that it would be impracticable to reinstate her.  As the parties have a common position in respect to the question of the impracticability of the reinstatement of the applicant and as it is clear to me that the personal relationships between the parties, in particular the applicant and Dr Premarajah, the principal of the respondent, are such that it would cause an unacceptable level of disharmony in the workplace if I were to order the reinstatement of the applicant, I find that it would be impracticable to order the reinstatement of the applicant

There are a number of issues in the case.  They are as follows:

1.         Was there a valid reason for the termination of the applicant's employment?

2.         Was the applicant's employment terminated for reasons including a reason prohibited by section 170DF(1)(a) of the Industrial Relations Act, 1988 (“the Act”) namely, "Temporary absence from work because of illness or injury"?

3.         Was the applicant's employment terminated for reasons including a prohibited reason in accordance with section 170DF(1)(f) of the Act; namely, her “sex"?

4.         Was the applicant's employment terminated in breach of section 170DC of the Act?

WAS THERE A VALID REASON FOR THE TERMINATION OF THE APPLICANT'S EMPLOYMENT?

Section 170DE(1) of the Act requires that there be a valid reason for the termination of an employee’s employment.

The reason which the respondent submits was a valid reason for the termination of the applicant's employment was the alleged fact that the applicant, despite repeated directions that she do so, did not change her footwear from footwear which was considered unsafe and unsuitable to footwear which was considered safe and suitable. 

The applicant was employed as a receptionist at the medical centre run by the respondent.  There was a dress code.  For more than one and a half years the applicant wore what she described as shoes which were like clogs with a strap at the back.  The respondent disputes that the applicant's shoes during that period had a strap at the back, but it really does not matter.

In October 1995 the applicant slipped on the stairs at the back of the respondent's premises and suffered an injury.  Following that she was asked several times to change her footwear.  In early January 1995 the applicant went and purchased some new shoes.  I find as a fact that the applicant purchased the blue shoes, which are now exhibit 2, and the white nurse's shoes, which are now exhibit 3, on, or shortly after, 5 January 1996.

The question to be determined is whether or not the applicant wore the white shoes which are exhibit 3.  The applicant says that shortly after 5 or 6 January (when she had purchased those shoes) she wore them on every occasion that she went to work.

A witness called by the respondent, Fiona Michalatos, said that the applicant wore those very shoes every day that she (Miss Michalatos) was at work with the applicant on, or shortly after, 5 January, 1996.  It is clear on the evidence that Miss Michalatos was at work nearly all of the time when the applicant was at work. 

Mrs Angela Chan, the office manager for the respondent, who was also - on the evidence - at work nearly all of the time when the applicant was at work, gave evidence that the applicant never wore those shoes and continued, in defiance of directions, to the contrary to wear the same shoes that she had been wearing since about the commencement of her employment.

Dr Premarajah, the principal of the respondent, said that Mrs Chan had told him, some time in about mid-January (certainly at a time after the applicant had purchased the white nurse's shoes), that she, the applicant, was wearing the new shoes part of the time and the old shoes part of the time.  Dr Premarajah himself said that he had no particular memory of the shoes that the applicant was wearing during the period of January leading up to the termination of the applicant's employment on 21 January 1996.

The conflict in the evidence between what Dr Premarajah said as to what Mrs Chan had told him and Mrs Chan's evidence leads me to accept the evidence of the applicant and Miss Michalatos.  It is to be remembered that Miss Michalatos was called as a witness by the respondent. 

I therefore find as a fact that from some time shortly after 5 January 1996 the applicant at all times that she was at work wore the shoes which are exhibit 3, namely the white nursing shoes.  These shoes were clearly safe and suitable.  It follows as a matter of simple logic that there was no valid reason for the termination of the applicant's employment and that the termination of her employment was therefore unlawful. 

WAS THE APPLICANT'S EMPLOYMENT TERMINATED FOR REASONS INCLUDING HER TEMPORARY ABSENCE FROM WORK?

Section 170DF(1)(a) of the Act reads as follows:

            An employer must not terminate an employee's employment for any one or more of the following reasons or for reasons including any one or more of the following reasons:

                        (a) temporary absence from work because of illness or injury.

Dr Premarajah gave evidence that the applicant had been absent from work for 77 days during her employment, that this was "a matter of concern" to him and it was a matter of concern because if the applicant had an asthma attack (which was one of the reasons for her absence from workplace) it would disrupt the surgery.  He said that this "caused problems" for him and that the 77 days off work was part of the reason for the termination of the applicant's employment.

The applicant gave evidence that on each and every occasion when she was absent from work due to illness or injury she had the permission of Dr Premarajah to be absent. 

Regulation 30D defines the circumstances which are or are not intended to be included within paragraph 170DF(1)(a) of the Act. 

Regulation 30D(2) reads as follows:

            For the purposes of paragraph 170DF(1)(a) of the Act an employee's absence from work because of illness or injury is taken to be a temporary absence if due to the illness or injury the employee is on authorised leave.

As the applicant had permission from Dr Premarajah to be absent from work when she was ill or injured, she was "on authorised leave" within the meaning of regulation 30D(2). 

As Dr Premarajah took that temporary absence from work due to illness or injury into account as a reason for the termination of the applicant's employment, the termination of the applicant's employment was in breach of section 170DF(1)(a) of the Act and unlawful for that reason as well. 

WAS THE TERMINATION OF THE APPLICANT'S EMPLOYMENT FOR REASONS INCLUDING THE APPLICANT'S SEX?

Section 170DF(1)(f) of the Act prohibits an employee's sex being a reason for the termination of an employee's employment. 

The applicant alleges that on repeated occasions over the period of her employment, commencing in August or September 1994, Dr Premarajah touched her without her permission.  The applicant alleges that this commenced in August or September 1994 by Dr Premarajah massaging her neck and shoulders from behind without her permission.  The applicant says that this sort of behaviour continued up until early January, 1996, shortly before the termination of her employment.

The applicant says that when Dr Premarajah did this she would stand up, tell him not to do it, and would do work such as filing work which required her to be on her feet. 

The applicant further says that at Dr Premarajah's birthday party in June 1994 (which party took place at a Chinese restaurant), Dr Premarajah had touched her without her permission.  She, the applicant, says that Dr Premarajah "grabbed my legs under the table" and that "he patted my leg" and that "he tapped my shoulder in a rubbing motion."  She also said that Dr Premarajah "grabbed, softly, the back of my neck." 

The applicant was cross-examined about that particular event.  It was never put to her that her version of what had occurred at that restaurant was wrong.  All that was put to her was to the effect that it was a happy occasion and that there were some, in effect, “loose hands” moving around at the dinner table. 

I therefore accept the applicant's version of what occurred at that birthday party. 

The applicant also says that, from time to time from September 1994 until just before the termination of her employment, Dr Premarajah would approach her and hug her from behind and would put his chin and face on her shoulder and on the side of her face up against her ear and rub his face on the side of her face whilst hugging her from behind.

The applicant says that this unpermitted touching, and the unpermitted massaging, occurred at the medical centre.  The applicant also said that Fiona Michalatos was present at least during some of the occasions when the applicant was massaged without permission by Dr Premarajah. 

The applicant also said that Dr Premarajah also sometimes massaged Miss Michalatos in much the same way that she the applicant was massaged.  Miss Michalatos gave evidence that indeed Dr Premarajah did do that but that was with her permission. 

Neither party asked Miss Michalatos if she had ever seen Dr Premarajah hug the applicant from behind, or rub his head up against the applicant's head in the way that the applicant said had occurred, or if she had seen Dr Premarajah massage the applicant.

It was open to either party to ask those questions.  It is therefore difficult for me to draw an inference one way or the other against either party or for either party as a result of the failure of those questions to be asked.  I draw no such inference.

Miss Michalatos also said that the applicant had never complained to her about Dr Premarajah massaging the applicant without permission. 

It is not unusual for persons who are the unwilling victims of sexual advances in the workplace not to report them to their fellow employees.  It is the experience of the courts and tribunals in this country that the unwilling victims of such advances often feel powerless and will do nothing or little about it for a long time, particularly when the perpetrator of the advances is the person in charge of the business, as was the case here.

The fact (if it were a fact) that the applicant did not report or complain to Miss Michalatos about the massaging is, therefore, in my opinion, of little significance in this case. 

The applicant alleges that there was a further incident on 8 January 1996.  The applicant says that at about 7.30 in the evening Dr Premarajah called her into his room.  She says that she expected that there would be a discussion about safety issues in respect of her shoes because Mrs Chan had earlier that day mentioned the fact that Dr Premarajah wanted to talk to her about the shoes.  She says that Dr Premarajah closed the door and that her boyfriend (whose name is Ben) was waiting in the foyer to take her home, it being near closing time.

She says that Dr Premarajah said something like this:

            “Break up with Ben, he's no good for you.  Because he does boxing for a sport he'll end up bashing you and taking all his aggression out on you.”

The applicant replied,

            "I won't break up with him." 

Dr Premarajah said:

            “You should break up with him or you can't work here any more.  You don't need a boyfriend, you need a companion like me.  I can give you companionship and give you a good time.”

The applicant replied:

            “You can't sack me for not breaking up with my boyfriend.”

The applicant says that she then left the room and shut the door behind her. 

Dr Premarajah gave a completely different version of a conversation on 8 January 1996.  He said that a conversation occurred, not at about 7.30 pm, but between 12.45 and 1pm. 

I note here that the applicant was cross-examined and that it was put to her that a conversation had occurred between her and Dr Premarajah at 12.30 pm, not between 12.45pm and 1.00pm, but I do not think much turns on that in any case.  It is about the same time. 

Dr Premarajah gave evidence that he said to the applicant:

            “I don't really see my staff unless there's really a problem.

            You're standing on the wrong foot with the shoe issue.”

Dr Premarajah went on to give evidence that the applicant said that she had seen a podiatrist to which Dr Premarajah replied, "Fine." 

He gave evidence that he told the applicant that he had spoken to the podiatrist and that she (the podiatrist) had said that she was willing to put the applicant into more comfortable shoes. 

Dr Premarajah gave evidence that he went on to say:

            “If the shoe issue is not settled you'll have to go.”

And that the applicant replied to that by saying:

            “Fine, I'll see the podiatrist.”

That latter part of the conversation, namely from the words "If the shoe issue is not settled," was never put to the applicant in cross-examination.  I therefore find, for that reason alone, that it was not said.

The applicant said that she did not start work on 8 January until 3 pm in the afternoon.  That was her rostered commencement time.

The rosters show, on the other hand, that Dr Premarajah finished work at 1.30 pm.  If Dr Premarajah did not go back to the surgery after 1.30 pm (as he said in his evidence) then he could not have been there at the time that the applicant said the conversation took place. 

How then does the Court resolve the difficulty raised by the objective material?

In my opinion it is highly unlikely that the applicant would have gone to work more than two hours before her rostered time.  Dr Premarajah, on the other hand, was the principal of the respondent, and it is much more likely that he would have gone to the surgery outside of his rostered working hours.  I regard that matter as important.  In my opinion the applicant's version of the conversation and its surrounding circumstnaces is more likely.  I accept, on the balance of probabilities, her version of their conversation and I reject Dr Premarajah's version of the conversation.

I accept therefore, on the balance of probabilities, that on 8 January 1996 Dr Premarajah made an improper advance to the applicant suggesting, in effect, that she give up her boyfriend and begin a relationship with him, and threatening her with dismissal if she did not do what he said.

Having accepted that I then revert to the questions of whether or not Dr Premarajah massaged the applicant in the way that she said he did without permission, and hugged her from behind in the way that she said he did without her permission. 

I have found as a fact that at the birthday party in June 1994 Dr Premarajah touched the applicant in the way that she said he did without permission.  That was clearly a sexual advance, and touching of a physical and sexual nature.

I have found as a fact that Dr Premarajah made an improper advance to the applicant on 8 January 1996. 

In my view the behaviour of Dr Premarajah on those two occasions is consistent with his alleged behaviour in massaging the applicant without her permission and hugging her without her permission. 

Furthermore, as I have rejected Dr Premarajah's version of those two other events, and have accepted the applicant's version for the reasons that I have stated, I regard the applicant as a witness of credit and I do not regard Dr Premarajah as a witness of credit whenever his evidence conflicts with that of the applicant.  I prefer the applicant's version of the alleged massaging and alleged hugging and find as a fact that the applicant's allegations in those respects are true.

As there was a history of sexual harrassment of the applicant by Dr Premarajah, and as there was a direct threat on 8 January that the applicant's employment would be terminated if she did not give up her boyfriend, I find that the reasons for the termination of the applicant's employment included a reason to do with her sex.

The termination of her employment was therefore for reasons including a prohibited reason under section 170DF(1)(f) of the Act, and unlawful. 

WAS THE TERMINATION OF THE APPLICANT'S EMPLOYMENT IN BREACH OF SECTION 170DC OF THE ACT?

The applicant was never, on the evidence that I have accepted, warned that her employment would be terminated if she continued to wear unsatisfactory shoes.  On the evidence that I accept she was merely told to change her footwear without ever being told that her employment would be terminated if she did not do so. 

I therefore find that, even if I were to accept that the applicant had not changed her shoes, the termination of the applicant's employment was in breach of section 170DC of the Act because she was never given an opportunity to respond to the allegations in respect of which her employment was terminated. 

In order for that section of the Act to be satisfied, as I have said in several other cases in the past, not only must the criticism be made, but it must be made in the context that the termination of the employee's employment is under consideration.  That must be made clear to the employee.

COMPENSATION

The applicant was unemployed for a period of about six weeks before she got a new job at another medical centre.  I am told from the bar table that the material which was tendered late in the case will establish that the applicant has suffered an ongoing economic loss, but counsel was unable to address the Court in any further detail.  I am not in a position, without the assistance of counsel, to determine what that ongoing economic loss is.  I will therefore reserve on the question of quantum of compensation and invite written submissions on the question of quantum of compensation.

The orders that the Court makes therefore are as follows:

(1)       I declare that the termination of the applicant's employment was unlawful.

(2)       The determination of the Court on the question of the quantum of compensation is reserved.

(3)       I set a timetable for written submissions on the question of the quantum of compensation as follows:

            (a)       The applicant's written submissions on the question of quantum of compensation to be filed and served no later than 4 pm, Friday, 8 November 1996.

            (b)       The respondent's written submissions on the question of compensation to be filed and served no later than 4 pm, Friday, 15 November 1996.

The applicant submitted that in accordance with the decision of Lee J in Aitken -v- The Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch, 1995, 63 IR 1, that I should take into account the stress and humiliation suffered by the applicant as a result of the termination of her employment. 

Since the decision in Aitken several judges of this Court have expressed a view contrary to that expressed by his Honour.  I am, therefore, with respect, not bound to follow Aitken.

I abide by what I said in Allan James Duncan -v- King Fleet Holdings Pty Limited trading as Lyster Removals and Storage, Industrial Relations Court of Australia, Patch JR, 1 August 1995, unreported, which by chance I delivered six days before the judgment of his Honour in Aitken, in which I said that compensation under the Act is not available for mere stress, distress, humiliation or the like arising from the termination of employment, which does not amount to a psychiatric illness or the exacerbation of an existing psychiatric illness.

I certify that this and the preceding 15 pages
are a true copy of the reasons for decision of
Judicial Registrar Patch as recorded in the transcript
and revised by him.



Associate:      Renee Cauchi
Dated:                        21 November 1996




APPEARANCES