DECISION NO:78/97

 

CATCHWORDS

 

 

 

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - dye machine operator - alleged failure to obey a reasonable and lawful instruction - meaning of "VALID" REASON - effect of Textile Industry Award provisions and Accident Compensation Act (Victoria) - alleged termination on the basis of PHYSICAL DISABILITY

 

 

 

 

Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988)

Ss 170DE(1), 170DF(1)(f), 170EA

 

 

AWU - FIME Amalgamated Union & Farrell v Canagra Wool Pty

Ltd (1995) AILR 3-015

Adami v Mason De Luxe Ltd (1924) 35 CLR 143

Australian Telecommunications Commission v Hart (1982) 65 FLR 41 at 47

Beckwith v The Queen (1976) 135 CLR 569

Bouzourou v Ottoman Bank (1930) AC 27 1

Byrne v Australian Airlines Limited (1995) 131 ALR 422

Chew v The Queen (1991-92) 173 CLR 626

Connolly v Wells (1994) 55 IR 73

Fargie v Freedom Foods (Aust) Pty Ltd, unreported, IRCA 498/96 Parkinson

JR, 14 October 1996

Fernandez v Comgroup Supplies Pty Ltd, unreported, IRCA 38/96,

Ritter JR, 9 February 1996

Garbutt v Stothers, unreported, IRCA 416/96 Ritter JR, 27 August 1996

Hacksall's Ltd v McDowell [1930] AR (NSW) 620

ex parte Halliday & Sullivan (1938) 60 CLR 601

Hospital Products Limited v United States Surgical Corporation (1984)

156 CLR 41

Huang v Ford Motor Company of Australia, unreported, IRCA 95/488 Murphy

JR, 8 September 1995

Izdes v L G Bennett & Co Pty Ltd (1995) 61 IR 439

Johns v Gunns Limited (1995) 60 IR 258

Jones v Dunkel (1959) 101 CLR 298

The King v Darling Island Stevedoring and Lighterage Co. Limited

Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427.

Lista v Romford Ice & Cold Storage Co. Ltd [1957] AC 555

Lupoi v Philips Fox, unreported, IRCA 485/96, Ritter JR, 3 October 1996

GJ McCarry (1984) 50 ALJ 327

Nettlefold v Kym Smoker Pty Ltd, Unreported, IRCA 469/96 Lee J,

4 October 1996

Nguyen v Nissan Casting Australia Pty Ltd, unreported, IRCA 95/657

Millane JR, 15 December 1995

Ottoman Bank v Chakarian (1930) AC 277

Pastry Cooks Employees v Gatral White (No. 3) (1990) 35 IR 70

Protean Holdings v American Home Assurance (1985) VR 187

R v Darling Island Stevedoring & Lighterage Co. Ltd

Senathirajah Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

Suttling v Director General of Education (1985) 3 NSWLR 427; 17 IR 447

Textile Industry Award 1994

Turner v Mason 14 M&W 112

Weissensteiner v The Queen (1993) 178 CLR 217

Westen v Union Des Assurances De Paris, unreported, IRCA 419/96,

Madgwick J, 28 August 1996

Winter v Australia National Hotels, Unreported, IRCA 574/95, Lee J,

 25 October 1995

 

 

NGHIA VAN TRAN v CALUM TEXTILES PTY LTD

VI 1401 of 1996

 

 

Before                                    :           RITTER JR

 

Place                                      :           PERTH (Heard in Melbourne)

 

Date of Judgment                :           13 MARCH 1997

IN THE INDUSTRIAL RELATIONS COURT   )

OF AUSTRALIA                                                                  )

VICTORIAN DISTRICT REGISTRY                  )

 

            VI 1401 of 1996

B E T W E E N:                                                       

 

NGHIA VAN TRAN

            Applicant

 

A N D:                                                                       

CALUM TEXTILES PTY LTD

            Respondent

 

 

 

MINUTE OF ORDERS

 

 

 

13 MARCH 1997                              PERTH                                        RITTER JR

 

 

 

THE COURT ORDERS THAT:

 

 

1.         The application be dismissed

 

 

 

 

 

 

 

 

 

 

 

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                                                                  )

VICTORIAN DISTRICT REGISTRY                  )

 

            VI 1401 of 1996

 

B E T W E E N:

 

NGHIA VAN TRAN

            Applicant

A N D:

 

CALUM TEXTILES PTY LTD

            Respondent

 

 

REASONS FOR DECISION

 

 

 

13 MARCH 1997                                                                                    RITTER JR

 

 

 

INTRODUCTION

 

The respondent is engaged in the business of supplying textile products.  There are four divisions of the respondent.  There is a yarn dye division, an automotive division, an apparel division and a curtain division.  It was the apparel division in which Mr Tran was employed. 

 

Mr Tran was employed as a dye house machine operator by the respondent at its plant in Thomas Town, Victoria, from 21 September 1988 until 23 February 1996.  On that date the employment of Mr Tran was terminated by Mr Malcolm McKenzie, the dye house production manager of the respondent.

 

The applicant seeks, pursuant to section 170EA of the Workplace Relations Act 1996 (the "Act"), a remedy in respect of the termination of his employment.  The remedy sought by the applicant is that of compensation.

 

The applicant submitted that the termination of his employment contravened sections 170DF(1)(f) and 170DE(1) of the Act.  With respect to section 170DF(1)(f), the applicant submitted that the termination of employment was for or included the reason of an alleged physical disability.

 

The applicant submitted that with respect to both subsections referred to above, the employer was unable to discharge its onus of proof:  see s 170EDA of the Act.

 

As part of its closing submissions, the respondent provided an outline of submissions and list of authorities which have been most helpful in considering the issues before the Court.  The respondent's position was that there was no contravention of section 170DF(1)(f).  The respondent submitted that the employment of Mr Tran was not terminated for or including the reason of his physical disability.  The respondent submitted that Mr Tran's employment was terminated because he failed to obey the lawful and reasonable direction of Mr McKenzie to work four dye house machines during his work shifts.

 

As to this contention, the applicant submitted:

 

1.         The direction was not lawful as it was not within the terms of the contract of employment;

 

2.         The direction was not lawful because it exposed Mr Tran to risk of injury;

 

3.         In any event, the direction was not reasonable;

 

4.         There was not sufficient disobedience to the direction to warrant dismissal.  For example, the applicant submitted that Mr Tran did not refuse to obey the command but said that he would follow the command if his union said that he had to;

 

5.         The respondent could not prove that the direction was lawful and reasonable for other reasons, being:

 

(a)        The respondent could not prove that the direction was not in contravention of the Textile Industry Award, and in particular:

 

                        (i)        clause 46A, a grievance procedure; and

 

                        (ii)       clause 47, dealing with the introduction of major change.

 

(b)       The respondent could not prove that the direction did not contravene a Memorandum of Agreement, allegedly entered into between the respondent and the applicant's union (the Textile, Clothing and Footwear Union of Australia), and in particular:

 

                        (i)        Clause 20, concerning a disputes settlement procedure;

 

                        (ii)       Clause 14, which dealt with health and safety issues; and

 

(c)       The respondent could not prove the direction was not in breach of section 122 of the Accident Compensation Act 1985 (Victoria).

 

The applicant submitted the respondent was unable to discharge the onus of proving it had not breached all of the above requirements and therefore the respondent had not proved there was a valid reason for termination of employment. 

 

Not all of these matters were clearly in issue when the trial commenced.  The respondent called its evidence first, but prior to doing so, Mr Kenyon, for the applicant, made a brief opening.  In this opening, Mr Kenyon submitted the respondent had breached section 170DF(1)(a) of the Act, although Mr Kenyon said later that this was a slip and that what he had intended to say was that the respondent had breached section 170DF(1)(e) of the Act.  Mr Kenyon submitted in opening that Mr Tran had been terminated because of an enduring hernia injury and a somewhat more temporary soft tissue injury to his shoulder.  The issue of the respondent not being able to prove there was not a breach of the award, the Memorandum of Agreement and the Accident Compensation Act only emerged as the trial proceeded.  Indeed, they only emerged with any clarity after the respondent had closed its case.  As a result, I granted an application by Mr Wood, for the respondent, to reopen the respondent's case.  The case had to be adjourned to enable the respondent to consider and prepare the evidence that it wanted to call to try and refute the allegations made by the applicant.  This involved the trial being adjourned from Thursday, 3 October 1996 until Monday, 25 November 1996, when the evidence and submissions were completed.

 

The course of the trial was also unusual in that the applicant did not give evidence.  Whether and to what extent this is a matter which can or will influence my decision is a matter which will be referred to later.

 

The respondent called a total of eight witnesses, being:

 

1.         Mr Richard Halpin, the general manager of manufacturing of the respondent;

 

2.         Mr Malcolm McKenzie, the dye house production manager of the respondent;

 

3.         Mr William O'Connor, a textile dyer and dye house supervisor;

 

4.         Mr Ali Buyukyazici, a textile dyer and dye house supervisor;

 

5.         Mr Cuong Pham, who worked as a scheduling assistant for the respondent and who acted as an interpreter, in Vietnamese, at one meeting between Mr McKenzie and Mr Tran;

 

6.         Mr Pusu Taupau, a dye machine operator;

 

7.         Ms Yvonne Duncan, the manager of human resources of the respondent; and

 

8.         Mr Neil Craven, a senior industrial relations counsellor with the Australian Chamber of Manufacturers.

 

The reopening of the respondent's case involved the recalling of Mr McKenzie and Ms Duncan and the calling of Mr Craven.

 

The only witness which the applicant called was Mr John Karas, a former dye machine operator of the respondent.  The applicant also tendered, with the agreement of the respondent, certain documents. 

 

After Mr Karas had given his evidence, the applicant made a no case submission.  Mr Kenyon relied on Protean Holdings v American Home Assurance (1985) VR 187, to support his submission that a no case application could be made at that stage.  I determined that there was no substance in the application, without having to decide whether the Court had jurisdiction to entertain the application at that time.

 

THE CHANGE TO FOUR MACHINES

 

As stated earlier, Mr Tran worked as a dye house machine operator for the respondent.  He commenced on 21 September 1988.  At that time groups of three people worked five machines.  This increased over time.  By January 1996, Mr Tran worked three machines in the dye house.  This was, in theory, as part of a team of three who worked nine machines.  In practice, however, it did not seem to be disputed that Mr Tran worked three identifiable machines.  Other groups of two operators worked seven machines each.  In February 1996, the respondent made a decision to require the dye house machine operators to work four machines each.

 

Mr Halpin described the work of the dye house as follows.  Fabric arrives at the dye house in prepared batches, depending upon customer requirements.  The operators in the dye house prepare and mix a dye recipe for the fabric.  The dye house operators load the machine, set the machine up and they run for between four and twelve hours.  During that time the dye house operators have to monitor the machines but, according to Mr Halpin, there was not a lot of physical work.  Mr Halpin said that the machine operators are "basically watching the machine and adjusting it".  Mr Halpin said that loading the machine was not very physical work.  Mr Halpin said that the fabric was loaded directly in through a suction system.  Mr Halpin said that the fabric, in a rope form, was put into the machine, and that a jet of water propelled the fabric through the machine.  Mr Halpin said that the machine operators' role was to stand there, watch the machine load "and then when the ends come around they will sew the two together and put the fabric in a loop configuration".  Mr Halpin said that the word "rope" was used because most of the fabric was a weft knit, which is a circular knit like a tube or a sock.  Mr Halpin said that most of the socks were around 30 inches in diameter and that the machine operator will twist the fabric and put it into the nozzle of the dye house machine.

 

Mr Halpin said that in the two and a half years that he had been in his current position, the respondent had a 35% reduction in its business.  Therefore, fewer batches of fabric were being dyed by dye house machine operators in any eight-hour shift.  Mr Halpin said that in February 1996 there was 25% fewer kilograms of fabric dyed than in February 1995.  Mr Halpin explained that the amount of work done by a dye machine operator will be determined not only by the number of machines that they are in charge of but also by the number of batches of fabric that they have to put through the machines in any given shift.

 

Mr Halpin said that there was a management "team discussion" about the number of machines that an individual operator should look after in the dye house.  Mr Halpin said that he lead the discussion and strongly recommended that the number of machines of an individual operator be increased from three and a half to four.  This was to try and effect a reduction in the cost per kilogram to the respondent in its fabric dying.  Mr Halpin said that the discussion probably took place in January 1996 and that this led to the managers of the dye house instructing operators to work four machines each.  Mr Halpin agreed that the change to four machines was first effected on 21 February 1996.  Mr Halpin was not sure, because he was not directly involved, of the extent to which there had been consultation between management and dye machine operators about the change from three and a half to four machines, or in Mr Tran's case, three to four machines.

 

Mr McKenzie said that when he began as dye house production manager in October 1995, each operator was generally responsible for three and a half machines.  He explained that there were a total of 23 machines.  There were two people who worked seven machines, another two who worked another seven and a set of nine machines worked by three people.  Mr Tran was one of these people.  Mr McKenzie said that after discussion with Mr Halpin a decision was made to work four machines per operator.

 

Mr McKenzie's evidence was somewhat confused as to the timing of the implementation of the decision for operators to work four machines.  In examination in chief he suggested that this was discussed at a meeting with staff on 6 February 1996.  However, in cross-examination he said that this meeting was to discuss a different issue and that the implementation of four machines per man came about later.  He said that the other operators had changed to four machines before 21 February 1996 but that this change could have occurred during the last week of Mr Tran's employment, and when Mr Tran was absent. He did not suggest Mr Tran had worked four machines, however.  Mr McKenzie agreed that the first time that he had a confrontation with Mr Tran about working four machines was on 21 February 1996, but maintained that Mr Tran was aware of the requirement to work four machines prior to that date.

 

In this regard it is important to note that Mr Tran was absent from work on 15 and 16 February 1996.  The reason for this was an injury to the arm which he had sustained when cleaning a machine on 14 February 1996.  On 17 and 18 February 1996 Mr Tran did not attend work because these days were Saturday and Sunday.  On 19 February 1996 Mr Tran had a pre-arranged day of annual leave for Chinese New Year.  On 20 February 1996 Mr Tran did not complete his day of work but was medically certified as being fit for normal duties from 21 February 1996.  It was on this date that the first confrontation occurred between Mr McKenzie and Mr Tran about the working of four machines.  The details of this will be referred to later. 

 

There was no evidence that Mr Tran or Mr McKenzie or anyone else on behalf of the respondent made contact with the medical practitioner that was treating Mr Tran to find out whether in the opinion of that person, Mr Tran was fit to operate four machines.  It would have been advisable for someone to have done this.

 

Mr O'Connor said that he became aware of the requirement for machine operators to work four machines by way of "management directive".  He was not asked for any precise time when he became aware of this.  He said that he recalled a discussion with the operators about working four machines when he was working on night shift.  However, Mr Tran did not attend this meeting because Mr Tran only worked day shift.

 

Mr Buyukyazici said there was a meeting in mid February about operators working eight machines between groups of two.  However, he could not recall whether Mr Tran was there.  He recalled that the other machine operators changed to four machines whilst Mr Tran was absent in mid February.  Mr Buyukyazici said the first time Mr Tran was requested to work four machines was the day after he returned from being absent from work due to his arm injury.

 

Mr Taupau said the first day that Mr Tran had been requested to work four machines was after he returned to work from the injury to his shoulder.  He said that prior to that there had been a meeting about the working of four machines but Mr Tran had not been there because he was absent injured.  He said that the workers were informed about the decision to run four machines and that he thought that "everyone was unhappy", but only a few spoke out.  He said that John Karas was one of those.  He said that people said that it would be too much work to do four machines.  He said that Mr McKenzie had informed the workers that no-one was going to be forced to do the four machines, that they should endeavour to work four machines and that there would be help for them if necessary.  However, he said that after people commenced working four machines there was almost no problem with it.

 

Mr Taupau recalled that when the number of machines to be worked by the individual operators increased from three to three and a half, people also complained, but Mr Tran was the only one who refused to work three and a half machines.

 

Mr Karas was a dye machine operator employed by the respondent from 1988 until July 1996.  Mr Karas said that in about early February 1996 he recalled a request from management to work four machines.  He said that there was a meeting and the workers were told by Mr McKenzie that they had to run four machines.  Mr Karas said that he objected at the meeting.  He said that Mr Tran was absent from the meeting, on "Workcare".  Mr Karas said that he thought working four machines was very difficult because "you can end up all day just running around keeping an eye on machines".  He said that it was easy to get behind schedule.

 

Mr McKenzie was recalled by the respondent as part of the reopening of its case.  He confirmed that when the four machines issue was first raised there was a generally negative reception to this by the workers.  However, he said that all except Mr Tran had accepted the requirement.  Mr McKenzie said that 21 February 1996 was the first occasion on which he spoke to Mr Tran about the working of four machines himself but that "the supervisors had knowledge of this and had spoken to people on the floor prior to this".  Mr McKenzie gave no evidence to indicate how he knew this and therefore this is evidence to which I can pay little regard. 

 

Mr McKenzie did not recall saying at a meeting with the workers that he was not going to force anybody to run four machines as Mr Taupau had indicated in his evidence.  He also said that he did not recall saying at the meeting that if somebody needed extra help the supervisors or somebody who was not busy would help the individual worker.  He said that he did not recall but he "could see himself saying" something such as that they needed to get "the plant running" and this is why the workers were having to work four machines.  Mr McKenzie agreed that at that meeting he did not say that if an individual refused to work machines they would be dismissed.

 

In my view, this review of the evidence indicates that Mr Tran did not know of the requirement to work four machines until he returned to work on 21 February 1996, although it had been discussed with the other workers whilst Mr Tran was absent.  In addition, at the meeting when the issue was discussed, some workers voiced their objection to working four machines.  However, all except Mr Tran agreed to and did do this work.  I do not accept that at the meeting Mr McKenzie gave an undertaking that workers who refused to work four machines would not be dismissed.  In saying this I should make it clear that I do not doubt the veracity of Mr Taupau's evidence, but consider that he may have been mistaken in his understanding of what Mr McKenzie did say.  It is clear, however, from Mr Taupau's evidence that he considered that management was, at least, ardently requesting the workers to work four machines each and that generally, although initially disgruntled, they did so.

 

THE WARNINGS AND THE TERMINATION

 

Mr McKenzie first discussed with Mr Tran his refusal to operate four machines on 21 February 1996.  The discussion culminated in Mr Tran being given a written warning.  The same thing happened the following day, with Mr Tran being warned that if he refused to work four machines on Friday, 23 February 1996, he may be dismissed.  The dismissal then occurred after further meeting on 23 February 1996.

 

Apart from Mr McKenzie and Mr Tran, Mr Buyukyazici was present at each of these meetings.  Mr Doug Brookes, the union shop steward, was present at the meetings on 21 and 22 February 1996 but not 23 February 1996.  It was known by all on 22 February 1996 that Mr Brookes would not be present the following day.  Mr Pham was present for part of the final meeting, to act as an interpreter.  Mr Doug Braham, another employee of the respondent, was also present at the first and second meetings.

 

Mr Braham and Mr Brookes did not give evidence at the trial.  With respect to Mr Brookes, it was said from the bar table that Mr Brookes was currently in Queensland and no-one was quite sure of his whereabouts.  With respect to Mr Braham there was no explanation given for his failure to give evidence.  However, one can infer that the respondent may have considered it unnecessary to call Mr Braham as a witness to the first and second meetings, given that Mr McKenzie and Mr Buyukyazici could give evidence about them. 

 

Mr McKenzie said the meeting with Mr Tran on 21 February 1996 was in his office in the presence of Mr Braham and Mr Buyukyazici.  The meeting was about Mr Tran's refusal to work four machines.  Mr McKenzie said that they tried to point out that he was only being asked to work an extra half machine.  (This was in fact incorrect as Mr Tran only worked three machines.)  Mr McKenzie said that he tried to convince Mr Tran that everybody else was working four machines and that the respondent needed him to work the fourth machine.  Mr McKenzie said that Mr Tran refused and said he did not want to "fuck up" his body.  Mr McKenzie said that he asked Mr Tran whether he had any medical evidence to support this and that Mr Tran said "no".  Mr Tran then asked him to get the union representative, Mr Brookes, which Mr McKenzie did.  Mr McKenzie said that he explained the situation to Mr Brookes.  Mr Tran then said "if the union tells me to work four machines I will work four machines".  Mr McKenzie said he indicated Mr Brookes was not in a position to do that and that Mr Brookes agreed.  He then went over the situation again and tried to convince Mr Tran that if he refused to cooperate serious action would have to be taken.  By this he meant a written warning.  Mr McKenzie said the discussion between himself, Mr Brookes and Mr Tran took approximately one hour.  After this Mr Tran was issued with a written warning saying that the situation would be reviewed the following day.  Mr Brookes and Mr McKenzie signed the written warning but Mr Tran refused to.  Mr Tran did not explain at the time why he refused to sign the warning. 

 

Mr McKenzie said that the meeting took place at about 10:30 am.  Both prior to and after this time, during his shift, Mr Tran worked three machines.

 

A meeting with Mr Tran took place the following day.  This was in the presence of Mr Brookes, Mr Buyukyazici and Mr Braham.  The meeting again took place in Mr McKenzie's office.  Mr McKenzie said that he again tried to convince Mr Tran to work four machines and tried to point out the seriousness of the situation.  Mr McKenzie told Mr Tran that if he did not comply another written warning would be given and the following day he would be dismissed if he did not comply.  Mr Tran explained that he had had a hernia operation and a sore arm.  Mr McKenzie asked Mr Tran to at least try and work four machines and that if he had problems the situation could be reassessed.  Mr Tran still refused to operate four machines.  Mr McKenzie said that when he explained the seriousness of the situation to Mr Tran he nodded his head.  Mr McKenzie said that he then gave Mr Tran a further written warning emphasising that if he refused on the following day he would be dismissed.  The warning was again signed by Mr McKenzie, with Mr Brookes signing as a witness.  Mr Tran again refused to sign the document.  Again, he did not explain why he refused to sign it.  After the meeting, which concluded about 2:30 pm, Mr Tran continued to work three machines until the end of his shift.

 

The final meeting with Mr Tran took place on 23 February 1996.  Mr Tran was asked to reconsider his situation and was also asked if he had any medical evidence to support his refusal to work the fourth machine.  Mr Tran replied "no".  Mr Tran was asked to reconsider his refusal to work four machines.  Mr Tran replied "I can't, I will wreck my body".  It was then that Mr McKenzie asked Mr Tran whether he had medical evidence to support his refusal.  Mr McKenzie said that he then went next door and asked Mr Pham to come in.  He asked Mr Pham to make sure that Mr Tran fully understood the situation and the seriousness of it.  Mr McKenzie said that Mr Pham spoke to Mr Tran for about five minutes.  Mr Pham then told Mr McKenzie that Mr Tran understood.  Mr McKenzie then asked Mr Tran directly whether he understood the situation and that he was giving Mr McKenzie no choice.  Mr Tran then said "yes, if you want to sack me, do it".  Mr McKenzie said that he did not want to lose an experienced person but Mr Tran had given him no choice.  Mr McKenzie then wrote out a termination notice.

 

When cross-examined, Mr McKenzie said he thought Mr Tran was being uncooperative and that he did have the physical capacity to work four machines. 

 

Mr Buyukyazici was not asked about these meetings in his evidence in chief, but was so in cross-examination and re-examination.  Mr Buyukyazici agreed that after Mr Brookes arrived at the first meeting, he asked when it had been company policy that Mr Tran had to work four machines and that Mr McKenzie had said there had been a meeting on the Monday about it.  Mr Brookes said that Mr Tran was away on Monday and queried whether the instruction was in writing.  Mr McKenzie said that it was not in writing but was now company policy.  Mr Tran was asked to work four machines and he refused.  Mr Buyukyazici agreed that Mr Tran said he did not want to "fuck up his body".  Mr Buyukyazici also agreed that Mr Tran said this was because of his hernia and his shoulder.  Mr Buyukyazici said that Mr McKenzie did not accept that.  Mr Buyukyazici agreed that Mr Tran did not give any reason why he would not sign the first written warning.

 

Mr Buyukyazici agreed that Mr Tran was terminated after he had indicated to Mr McKenzie at the third meeting that he still refused to work four machines.  Mr Buyukyazici agreed that Mr McKenzie said that this left him with no alternative but to terminate Mr Tran's employment.

 

When re-examined, Mr Buyukyazici said that in the first meeting Mr Tran had said he simply cannot run four machines and that he would not even try.  Mr Buyukyazici said that after Mr Brookes came to the meeting "I think Tran asked Mr Brookes if Mr Brookes give him permission to run four machines, he will run four machines" (sic).  Mr Buyukyazici said that Mr Brookes said it was not up to him to say.  Mr Tran then reiterated that he could not run four machines.  After that Mr McKenzie gave him the written warning. 

 

At the second meeting, Mr McKenzie again asked Mr Tran to run four machines and he still refused.  Mr Tran gave the same reason that he could not run four machines.  Again he said that he did not want to "wreck his body".  Mr McKenzie said that Mr Tran should at least try to run four and that if he had any problems they could discuss it.  Mr Tran said no to that.  Mr McKenzie said he would give him another day but that if he refused the following day he would be dismissed.  Mr Tran said "no worries" in answer.  Again, Mr Tran was asked to sign a warning but he refused. 

 

The following day, Mr Tran was again asked to run four machines.  Mr Buyukyazici said that Mr McKenzie repeated the same questions.  Mr McKenzie asked Mr Tran whether he would change his mind and run four machines, and Mr Tran answered no.  Again he said that he could not "wreck his body".  Mr McKenzie asked him whether he was fit or not or whether he had a medical condition and Mr Tran said no.  Mr Pham was called in midway through the meeting.  Mr McKenzie, in front of Mr Pham, asked Mr Pham to explain the situation to Mr Tran again.  Mr McKenzie told Mr Pham that if he refused again Mr Tran would be dismissed.  Mr Tran again refused to run four machines.  Mr McKenzie asked whether he understood everything and Mr Tran said yes.  Mr McKenzie then dismissed him.  Mr Buyukyazici said that to him, Mr Tran appeared to understand everything.  Prior to terminating his employment, Mr McKenzie had said to Mr Tran that it was his last chance, would he try to run four machines.  Again Mr Tran said no.  Mr McKenzie said that he was going to miss an experienced operator but could not do anything else, he had to dismiss Mr Tran.  A termination form was then completed by Mr McKenzie. 

 

Mr Pham's recollection of the meeting at which he attended was not precise.  However, he said that he was asked to tell Mr Tran that he was required to work four machines, that he had been given a written warning and a second written warning and that if he refused the request, Mr McKenzie may have to dismiss him from the company.  Mr Pham said he told Mr Tran what Mr McKenzie had said and that he thought Mr Tran understood this.  Mr Tran nodded his head and did not say anything.  Mr Pham then told Mr McKenzie that he translated what he had been asked to.  Mr Pham said he did not have any understanding as to why Mr Tran refused to work four machines.  He said that he did not know whether Mr Tran elaborated on this.

 

When cross-examined, Mr McKenzie said that he was unaware at the time of these meetings that Mr Tran had suffered a hernia when at work and had three months off work, including an operation, because of this.  Mr McKenzie had not seen the Workcare certificates in relation to this.  The Workcare certificates were tendered as exhibits.

 

THE MEDICAL EVIDENCE

 

There were no medical witnesses called by either party.  This was a little surprising in view of the nature of the dispute.  However, various documents were tendered by consent including the Workcare certificates applicable to Mr Tran's hernia and arm injuries. 

 

In relation to the hernia injury, the following Workcare certificates were tendered:

 

1.         Dr Shelly Gray - 7 February 1995

 

            This certificate noted Mr Tran had that day injured his groin and hernia and was referred to Mr Christopher Aitken, a surgeon.

 

2.         Mr Aitken - 7 February 1995

 

            Mr Aitken saw Mr Tran on 7 February 1995, noted the hernia injury caused from lifting at work on 7 February 1995 and pain in the left groin.  Mr Aitken noted that Mr Tran needed operative repair.  Mr Tran was scheduled unfit for duties until 16 February 1995.

 

3.         Mr Aitken - 16 February 1995

 

            This certificate said Mr Tran was unfit for any duties until 2 March 1995.  The certificate noted that Mr Tran required surgical repair as soon as possible.

 

4.         Mr Aitken - 2 March 1995

 

            This certificate noted that Mr Tran was to undergo an operation on 7 March 1995.  He was certified unfit for any duties until 28 March 1995.

 

5.         Mr Aitken - 24 March 1995

 

            This certificate said Mr Tran was unfit for any duties until 10 April 1995.  The certificate indicated that Mr Tran would return to work on a light duties program and that he was not to do heavy lifting.

 

6.         Dr Hoang Mai Lee - Undated

 

            This certified Mr Tran unfit until 3 May 1995 but fit for alternative duties on 4 May 1995, although it said that Mr Tran was not to lift over 5 kilograms, no long standing and a lot of walking.

 

7.         Mr Aitken - 7 April 1995

 

            This certified Mr Tran as unfit for any duties until 24 April 1995 but fit for alternative duties from 24 April 1995.  Again, this had restrictions on lifting, excessive bending or straining.

 

8.         Mr Aitken - 21 April 1995

 

            This said that Mr Tran was unfit for any duties until 1 May 1995 but fit for alternative duties from 1 May 1995.  The previous certificates were referred to.

 

9.         Dr Lee - 2 May 1995

 

            This certified Mr Tran as unfit for any duties until 9 May 1995.  There were no comments.

 

10.       Mr Aitken - 7 June 1995

 

            This noted that Mr Tran attended for a consultation on that day and was fit for normal duties from 8 June 1995.

 

11.       Mr Aitken - 7 August 1996

 

            This certified Mr Tran as unfit for duties from 7 August 1996 to 4 September 1996 and indicate recurrent pain following the surgical repair on 7 March 1995.  (This certificate and the next obviously relate to a period some months after termination.)

 

12.       Mr Aitken - 4 September 1996

 

            On this date Mr Tran was certified as being unfit on 4 September 1996 only, and specified the next review date "as necessary".  Treatment/ medication was stated to be exercises and anti-inflammatory drugs.  This certificate noted that Mr Tran suffered pain to the left groin.

 

The following documents were tendered in relation to the injury in February 1996:

 

1.         Certificate of Dr Lee - 14 February 1996

 

            This certified Mr Tran as being unfit for duties on 15 and 16 February 1996.  The description of injury was noted as a painful right arm and a diagnosis of soft tissue tenderness.  The treatment/medication was rest and analgesics.

 

2.         Certificate of Dr Lee - 20 February 1996

 

            This certified Mr Tran as unfit for duties until 20 February 1996 but said that he was "expected to be fit for normal duties" from 21 February 1996.  The same description of injury and diagnosis as on the previous certificate, was given.

 

There were also tendered as exhibits a hand-written one page report from Dr Lee dated 24 February 1996 and a Department of Social Security treating doctors report signed by Mr Aitken on 4 March 1996.

 

The report of Dr Lee dated 24 February 1996 was tendered by consent.  In its substantive parts, this report said that Mr Tran:

 

            "suffered from soft tissue tenderness of right arm at work (according to the patient) from 14 February 1996 to 20 February 1996.  He had been treated with analgesics, panadeine and rest (14 February 1996 - 20 February 1996).  He was back to normal duty on 21 February 1996 as before he got injured".

 

The treating doctor's report of Mr Aitken dated 4 March 1996 was tendered as an exhibit by consent, but on a conditional basis.  There were three concessions made by Mr Kenyon in relation to the report, which were made before Mr Wood agreed to the document being tendered.  These were:

1.         The document does not positively state that in Mr Aitken's opinion Mr Tran cannot work four machines;

 

2.         Mr Aitken did not know precisely what sort of work the applicant did, or at least the report does not make this clear and so one should not assume this;

 

3.         Mr Aitken has not seen the respondent's plant in operation.

 

Part four of Mr Aitken's report says that Mr Tran is "unable to do heavy work".  It states that a hernia developed in February 1995 and that there was an operation on 7 March 1995.  Mr Tran returned to work on 8 June 1995.  The report noted that since then there has been continuing discomfort in the left groin on standing.  Mr Aitken ticked the box marked "no", next to the question, "based on the person's current medical condition, is the person fit for his/her usual work for at least 30 hours per week".  However, Mr Aitken ticked the box "yes", next to the following question, "based on the person's current medical conditions, is the person fit for any other work he/she could reasonably be expected to do for at least 30 hours per week".  Mr Aitken then specified "no heavy work".

 

Given the concessions made by Mr Kenyon, this document is of limited assistance. 

 

In support of his submission that the document be received, absent the consent of the respondent, Mr Kenyon submitted that it was in the interests of the expedition of the case that leave be granted under section 64 of the Evidence Act for the document to be received without Mr Aitken being called.  Mr Kenyon submitted that there would be undue expense and delay in Mr Aitken being called to give evidence.  Mr Wood submitted that the document contained matters of opinion which the respondent wanted to test in cross-examination.  I indicated my misgivings in receiving the document, which stated the opinion of a treating specialist, without being able to know further details of what was in the surgeon's mind when he wrote the comments that he did, and without the possibility of cross-examination.

 

Mr Wood also said that, on instructions, he would not oppose an application to adjourn the trial so that Mr Aitken could be called as a witness.  He said this in the context of his instructions to make an application to reopen the case in relation to the issues that arose during the course of the trial, as set out earlier.  In the end, and given the concessions made by Mr Kenyon and the consent of Mr Wood, the document was received.  As the document was being received, Mr Kenyon confirmed that one could not read from Mr Aitken's report that Mr Aitken was familiar with the machines and "could not comment whether the additional one machine would exacerbate the injury".

 

THE MEMORANDUM OF AGREEMENT

 

As set out earlier, the applicant submitted that the respondent could not prove the instruction given to Mr Tran was both lawful and reasonable, because it could not prove the instruction did not contravene a Memorandum of Agreement ("MOA") entered into between the respondent and the Textile Clothing and Footwear Union of Australia which applied to the employees at the Thomas Town worksite.

 

This submission brings into question the status of the MOA.  Evidence was given on this by Ms Duncan. 

 

When first called she said that the redundancy part of the MOA (which was an enterprise bargaining agreement), came into force on 1 December 1995.  However, she said that the "actual EBA document was voted upon on 20 September this year and is currently being processed for ratification to the Commission and would take effect at that point of time".

 

When recalled, Ms Duncan confirmed that apart from the redundancy part of the agreement, the remainder was not applicable in February 1996.  This was because there had been no agreement finalised and no vote to accept the agreement by the union.

 

Ms Duncan said that so far as the respondent was concerned there was no intention for the MOA to have operative effect before voting on by employees or certification by the Commission.  She also said that there was no indication from the union that they had a contrary view.

 

When cross-examined, Ms Duncan denied that although not ratified and agreed upon the parties were "working to" the MOA.  Ms Duncan did not accept this and said that the parties were still adhering to the award.

 

There was no evidence which contradicted the evidence of Ms Duncan.

 

Therefore, I think it is clear that the MOA did not operate to bind the parties to it, including the respondent, in February 1996, with respect to the grievance procedures and health and safety matters.  Accordingly, I think the respondent has discharged it's onus and proved that there was nothing in the MOA, which was binding upon it in February 1996 and which it failed to adhere to in the termination of employment of Mr Tran.

 

Therefore, the applicant's arguments which referred to clause 20 and clause 14 of the MOA are unfounded.

 

SECTION 170DF(1)(f)

 

This subsection provides that:

 

            "170DF(1)     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: . . .

 

(f)        race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin".

 

The applicant alleged that the respondent terminated Mr Tran's employment for or including the reason of his physical disability, being his physical disability to operate four machines.

 

It has been held that whether an employer has terminated employment for a reason including those set out in section 170DF(1), must be determined by having regard to the subjective reason why the employer terminated employment.  In this instance, the decision to terminate Mr Tran's employment was made by Mr McKenzie.  Therefore, it is his subjective reason which one must have regard to:  AWU - FIME Amalgamated Union & Farrell v Canagra Wool Pty Ltd (1995) AILR 3-015; Fernandez v Comgroup Supplies Pty Ltd, unreported, IRCA 38/96, Ritter JR, 9 February 1996 and Johns v Gunns Limited (1995) 60 IR 258 at 267 - 69.

 

I do not think that Mr McKenzie terminated the employment of Mr Tran on the basis of his physical disability.  Indeed, it seems clear that Mr McKenzie had grave doubts as to the genuineness of Mr Tran's claims that he was physically disabled.  Mr McKenzie chose to terminate Mr Tran's employment because of his failure to follow the order to work four machines.  When cross-examined, Mr McKenzie said that he thought Mr Tran was being uncooperative.  It was put to Mr McKenzie that Mr Tran had given a medical reason, involving his hernia and sore arm, for failing to follow the direction.  Mr McKenzie agreed with this but in answer to the next question said that he did not accept this because, in his opinion, Mr Tran had a medical clearance for both of those injuries.  A little later Mr McKenzie agreed with the proposition that he believed that Mr Tran was fit to work four machines.  He also agreed with the proposition that it was because he thought Mr Tran was fit to work four machines that Mr Tran was dismissed when he refused to do this.

 

Therefore I am satisfied that in terminating Mr Tran's employment, Mr McKenzie, on behalf of the employer, did not terminate the employment for or including the reason of Mr Tran's (alleged) physical disability.  The respondent has discharged it's onus under section 170EDA(2) and proved that the employment was not terminated for a reason including physical disability.

 

SECTION 170DE(1)

 

In closing, Mr Wood, for the respondent, said that there were five hurdles that the respondent had to overcome in proving that the termination of employment was for a valid reason.  These were that the order given to Mr Tran was lawful, that it did not expose him to danger, that the order was reasonable, and that given the extent, nature and persistence of the disobedience to the order and the fact that warnings were given, termination of employment was an appropriate sanction for the failure to follow the order. 

 

LAWFULNESS OF THE ORDER

 

The respondent submitted that the order was lawful in the sense that the order given by Mr McKenzie was an order which could lawfully be given within the terms of the contract of employment.  The respondent submitted this was so either as an express term of the contract of employment or as an implied term.

 

There was no written contract of employment.  This was therefore a case where there is greater difficulty in ascertaining later, the terms of the contract that the parties initially made:  see Connolly v Wells (1994) 55 IR 73, at 74 per Gleeson CJ.  At the time when Mr Tran was first employed by the respondent, as a dye house machine operator, groups of three people used to work five machines.  The number of machines that was operated by the workers increased, from time to time, as has been detailed earlier.  By January 1996 Mr Tran was operating  three machines.  The order he refused to follow was an order that he operate four machines.

 

The contract of employment between the applicant and respondent contained, in its terms, no express limit on the number of machines which Mr Tran would have to operate as part of his duties.  He was simply employed as a dye house machine operator, although the number of machines he was asked to operate when he commenced was as stated earlier.

 

Further, there was nothing in the Award which restricted the number of machines which workers had to operate.  From the evidence of Mr Halpin and Mr Craven, there is variation throughout Victoria, Australia and internationally as to the number of machines that individual workers will operate.

 

In The King v Darling Island Stevedoring and Lighterage Co. Limited; ex parte Halliday & Sullivan (1938) 60 CLR 601 at 621, Dixon J said that:

 

            "If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon it being reasonable.  In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of a contract of service and are reasonable".

 

It can be seen that Dixon J referred to commands that are within the scope of the contract of service and the command relating to the subject matter of the employment. 

 

Cantor J in Hacksall's Ltd v McDowell [1930] AR (NSW) 620 at 629 said that the question was whether the order disobeyed was one within the terms or scope of the contract.  This was quoted at page 199 of Macken, et al, The Law of Employment, 3rd edition, 1991 and was followed by the observation that, "whether the order is within the scope of the contract is determined by reference to the nature of the work the employee was engaged to do, the express and implied terms of the contract and the customs of the industry".

 

Earlier in that text at page 188, the learned authors stated that "in the absence of a contract allowing it, the employer cannot force changes on an employee.  An attempt to do so will involve the employer in a breach of contract if the employer presses his or her requirements..."  This passage was cited with approval, subject to a "gloss", by Madgwick J in Westen v Union Des Assurances De Paris, unreported, IRCA 419/96, 28 August 1996.  His Honour then said that:

 

            "The gloss is that this must not be taken to propound undesirable inflexibility; there must be some reasonable give and take.  In a rapidly changing world, it would be uncommon for the parties to a contract of employment to envisage no change in aspects of the job".

 

In my opinion those observations are apposite to the present case.  In my opinion, the terms of the contract of employment were not such that Mr Tran was employed as a machine operator for only the number of machines that he initially worked;  he was employed as a machine operator, to work the number of machines which his employer required, within the bounds of lawful and reasonable instruction to do so.

 

I do not think that each time the employer changed the number of machines that Mr Tran was to work it was, in effect, terminating one contract of employment and embarking on another with Mr Tran.  The employer was merely changing aspects of the existing contract of employment.  To put it another way, the changes were within the subject matter of the employment or the scope of the contract of service, to use the expressions quoted above from Dixon J in the Darling Island Stevedoring case. 

 

I am therefore satisfied on balance that the contract of employment was for Mr Tran to operate the number of machines and do the amount of work as directed by his employer, subject to such directions being lawful and reasonable.  Changing technology and market conditions, and the need for the respondent to remain competitive in the industry in which it was engaged, are all factors which, in my opinion, tend to indicate that there was no limit, subject to questions of lawfulness and reasonableness, as to the number of machines which the respondent could direct the applicant to work, within his contract of employment.

 

Therefore I am satisfied that the request to work four machines was lawful in the sense that it was within the scope of the contract of employment.  Although there was no express term of the contract as to the number of machines to be operated, in my opinion it can be implied that the applicant would work the number of machines that his employer directed.  The implication of such a term is, in my opinion, necessary for the reasonable or effective operation of the contract of employment in all the circumstances of the case:  Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 at 121 and Byrne v Australian Airlines Limited (1995) 131 ALR 422 at 428, 443 - 4.

 

REASONABLENESS OF THE ORDER

 

As stated earlier, the respondent submitted that it had to prove the order was reasonable, did not expose Mr Tran to danger and that the termination of employment was an appropriate sanction for the failure to follow the order.

 

To some extent, these issues overlap.  For example, if the order was going to expose Mr Tran to an unacceptable risk of danger, the order was clearly not reasonable.

 

The respondent did not submit that it was not required to prove that the order was reasonable, despite the fact that there has previously been some controversy about this requirement:  see Lupoi v Phillips Fox, unreported, IRCA 485/96, Ritter JR, 3 October 1996, page 26.

 

This concession of the respondent seems to have been well made.  I have already quoted from the judgment of Dixon J in the Darling Island Stevedoring case, in which his Honour said that a command must be reasonable.

 

Further, Beazley J in Izdes v L G Bennett & Co Pty Ltd (1995) 61 IR 439 said at 449:

 

            "It is well settled by the authorities that any direction to an employee must be both lawful and reasonable:  see Adami v Mason De Luxe Ltd (1924) 35 CLR 143; Suttling v Director General of Education (1985) 3 NSWLR 427; 17 IR 447; Pastrycooks Employees v Gatrell White (No. 3) (1990) 35 IR 70; Lister v Romford Ice & Cold Storage Co. Ltd [1957] AC 555; Australian Telecommunications Commission v Hart (1982) 65 FLR 41 at 47; R v Darling Island Stevedoring & Lighterage Co. Ltd; ex parte Halliday & Sullivan (1938) 60 CLR 601; cf the academic debate on this issue in The Employees Duty to Obey Unreasonable Orders, GJ McCarry (1984) 50 ALJ 327".

 

The respondent submitted that the direction for individual workers to each work four machines was reasonable because of industry pressures that the respondent faced and other economic factors.  This was not disputed.  The respondent also queried whether there was any additional work that the applicant would have to do given the extra machine that he was required to work and the decreased amount of dying done by the machine operators, over time.  In addition, the respondent referred to the operators controlling the loading and unloading process, the limited amount of lifting that machine operators were required to do and the response of other operators to the change to four machines.

 

The respondent also submitted that "unless the command . . . exposes the employee to undue danger of death or bodily injury, the employer is entitled to performance", citing Sykes, Labour Law in Australia, second edition, 1980, page 48.

 

The respondent submitted that the employee bears the onus of establishing a case of "substantial danger".  The respondent referred to the judgment of Dixon J in the Darling Island Stevedoring case at page 622 where his Honour said that:

 

            "When an employee objects that an order, if fulfilled, will expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service (Bouzourou v Ottoman Bank (1930) AC 27 1, at pages 275 - 277; Ottoman Bank v Chakarian (1930) AC 277, pages 282, 283)"

 

The context of the two Ottoman Bank cases is different from an application made under the Workplace Relations Act.  Both involved claims for damages for wrongful termination of employment.  In that context, the onus was on the plaintiffs to establish that the termination of their employment was wrongful.  In each case, the dismissal was based, at least in part, upon an alleged failure to obey a lawful command.  In both cases the issue was raised as to whether the command was lawful, given an allegation that the plaintiff would be in danger if the command was followed.

 

In Bouzourou, the House of Lords at page 275 and 276 referred to Turner v Mason 14 M&W 112.  In that case a domestic servant sued for alleged wrongful dismissal where she had requested leave of absence to be with her mother who was ill and "in peril of her life".  The master refused leave, the plaintiff nevertheless absented herself and she was dismissed.  It was held that there was no sufficient excuse for the disobedience of the order of the master.  The House of Lords in Bouzourou referred to and quoted from part of the judgments of Pollock CB, Alderson B and Rolfe B.  Alderson B said, "there may undoubtedly be cases justifying the wilful disobedience of such an order, as where the servant apprehends danger to her life, or violence to her person, from the master, or where, from an infectious disorder raging in the house, she must go out for the preservation of her life".  Rolfe B said, "in truth the cases suggested by my brother Alderson are cases in which there is not legally any disobedience, because they are cases not of lawful orders.  It is an unlawful order to direct a servant to continue where she is in danger of violence to her person, or of infectious disease".  The House of Lords in Bouzourou then said (page 276), "their Lordships agree with the view that there must be an immediately threatening danger by violence or disease to the person of the servant before an order to remain in the zone of danger can be held to be unlawful".  The Court held that the facts in Bouzourou did not establish this and therefore the application was dismissed.

 

Chakarian's case was decided differently, because it was held that the actions of the plaintiff, in leaving Constantinople, contrary to the order of his employers was motivated by a "risk of personal danger".  The House of Lords at page 282 described the risk of personal danger as being "real and justified from the point of view of his personal safety".  At page 283 the Court found that the risk to the plaintiff was such that he was not bound to obey the order, which was not therefore a lawful one.  The Court referred to Turner v Mason, per Alderson B and Rolfe B.

 

Interestingly, these cases suggest that, to be liable to be followed, an order from an employer need only be lawful, not reasonable; and that if the order places the employee in a position of unacceptable risk of injury, the order is not lawful.  This point is picked up by GJ McCarry in his article, The Employees Duty to Obey Unreasonable Orders, 58 ALJ 327 at 330/331, although Beazley J disagreed with this view, implicitly, in that part of the judgment in Izdes, quoted above.  Further debate on this issue appears at paragraph 8.8, page 185 of Labour Law, Text and Materials, Creighton, et. al, second edition, 1993.

 

Whatever be the position regarding onus at common law, I must here follow the terms of the Act.  The Act, in section 170EDA, makes it clear that the employer must prove that there was a valid reason for termination of employment under section 170DE(1).  In this case the employer asserts that the valid reason was the failure of the employee to follow a lawful and reasonable direction.  It is therefore for the employer to prove that the direction was both lawful and reasonable.  If the direction exposed the employee to an unacceptable risk of injury, then the direction was unreasonable and arguably unlawful.  Where the issue is raised, it is thus for the employer to show that in a particular case the direction did not expose the particular employee to an unacceptable risk of injury.  McCarry, at page 331 of his article suggests that unacceptable risks are those beyond which the employee has contracted to undertake.  For example, the author states that, "the lion tamer is not obliged to risk execution by a firing squad".

 

Transposed into the facts of this case, a direction which exposed Mr Tran to the ordinary risks of his occupation as a dye house machine operator could not be said to be unlawful or unreasonable.  However, one which exposed him to risks beyond that, would not be reasonable or lawful. 

 

In this case the command to Mr Tran was to individually work four machines rather than work three.  It was therefore an increase in the work Mr Tran was to do, of one machine. 

 

The evidence seems clear that Mr Tran was fit to work three machines at the time.  The evidence was that, without demur, Mr Tran worked three machines, both before and after the meetings with Mr McKenzie and others on 21 and 22 February 1996.  Further, Mr Tran was certified fit for work by Dr Lee for "normal duties".  Given that Mr Tran had previously been working three machines, this certificate must be taken to at least indicate he was fit to work three machines. 

 

When directed to work four machines, at each of the three meetings with Mr McKenzie, Mr Tran said he would not follow this direction because he did not want to "wreck" his body or "fuck up" his body.  It is clear from this that Mr Tran was raising as an issue the impact that the "extra work" would have on his health.  For the respondent to prove that the direction to work four machines was reasonable, therefore, it would need to prove that Mr Tran's objection to this, on the basis that he may harm himself, was either not genuine or overly cautious to an unreasonable degree.

 

It is unfortunate that Mr McKenzie, nor anyone else on behalf of the respondent, had a conversation with the doctor treating Mr Tran to ascertain whether, in the opinion of the doctor, Mr Tran could indeed work four machines.  If the respondent had taken this action, the dismissal of Mr Tran and the litigation that has followed, may have been avoided.  I make this point, having full regard to the evidence of Mr McKenzie and others that Mr McKenzie asked Mr Tran if he had medical evidence to support his view of the impact of working the extra machine on his body, and that Mr Tran said no on each occasion.  However, it seems to me that it would have taken little effort for Mr McKenzie to have spoken to the doctors concerned and to have found this out for himself.  On the other hand, Mr Tran could have gone back to his doctor and got a medical certificate saying he was unfit to work four machines, if this was the case (an issue I will consider further later).  Interestingly, when Mr Craven was cross-examined and a hypothetical example was put to him which mirrored the applicant's case, Mr Craven said based on his knowledge in the industry, "the normal practice would be to ascertain whether he was medically fit to do the job, because there are quite clear legislative requirements in terms of providing a safe place of work and not putting the employee at risk".  Mr Craven was asked whether that would involve a health and safety committee.  He said, "no, not necessarily, no, you would go on the medical evidence available".

 

One difficulty with what the respondent did was that it failed to have regard to the medical evidence available or consult Mr Tran's doctors.  Mr McKenzie was largely ignorant of Mr Tran's pre-existing medical condition.  Further, Mr McKenzie asked  Mr Tran to provide him with medical evidence that he could not do the job.  At the third meeting, when Mr Tran said he did not have medical evidence, Mr McKenzie dismissed him.  In my opinion, Mr Craven's answers support my own view that Mr McKenzie would have been wiser to have taken the matter further than simply the questions that he asked of Mr Tran, and the answers that he got.

 

I also note Mr Halpin's evidence, which I accept, that he told Mr McKenzie to involve the Human Resources Department in dealing with Mr Tran on the dispute.  Mr McKenzie did not follow this advice, although it may have been beneficial if he had.  Experience shows that disputes which can lead to a termination of employment occur at times because of personality clashes and difficulty of communication.  If this was at the heart of the dispute between Mr Tran and Mr McKenzie, a skilful human resources manager may have been able to negotiate with Mr Tran and Mr McKenzie and solve the issue;  cf Lupoi v Phillips Fox.

 

Be that as it may, the respondent, in effect, submits that there is circumstantial evidence, which, drawn together, supports the conclusion that Mr Tran's claims that he did not want to work the fourth machine for fear of injuring his body were either not genuine or at least unacceptably unreasonable.  The effect of this, as set out above, would be that the request to work four machines was not unreasonable as it did not expose Mr Tran to risks of injury beyond those within the scope of his contract of employment.

 

The respondent pointed to matters which may be summarised as follows in support of the submission that the direction was reasonable:

 

1.         The evidence that Mr Tran said he was willing to work four machines if Mr Brookes said he should do so.  It was submitted that this was inconsistent with a genuine belief that Mr Tran may injure himself if he had to work four machines.

 

2.         Mr Tran did not produce evidence of his incapacity to work four machines when requested to do so at the meetings with Mr McKenzie.

 

3.         The failure by Mr Tran to get such evidence by Friday, 23 February 1996 was indicative of a lack of genuineness and/or reasonableness of Mr Tran's belief.

 

4.         Inferences against Mr Tran's position can be drawn by the fact that he did not give evidence.

 

5.         Given that Mr Tran was able to work three machines on 21 - 23 February 1996, that he obtained a medical clearance on 20 February 1996 to work normal duties and that the actual increase in work was not more than five to ten percent, on the balance of probabilities there was no substantial danger in Mr Tran working four machines.

 

I first turn to the evidence on this final point.

 

THE EXTRA WORK MR TRAN WOULD HAVE TO DO

 

Some of the witnesses gave evidence of the particular machines that Mr Tran worked.  For example, both Mr O'Connor and Mr McKenzie said that Mr Tran was working machines 16, 17 and 32 prior to the directive to work four machines.  Mr O'Connor said that Mr Tran was asked to work machine 12 in addition to these, whilst Mr McKenzie said that Mr Tran could choose whether he worked machine 12, 13 or 14.

 

Mr O'Connor described machine 12 as being a little machine, having two rows.  He said that it was a colour dye machine and was not labour intensive.  He also said that the additional work involved in operating machine number 12 did not involve heavy lifting.  Mr O'Connor said it was "really a miniature version of what he would have been doing on number 17".

 

Mr McKenzie also gave evidence about this when recalled to give evidence.  He spoke of the number of ropes and rolls of fabric operated in the machines.  A roll of fabric generally weighs about 20 kilograms.  Mr McKenzie described it as a manageable role of fabric that people can handle.  The rolls are sewn together to make a continuous rope of fabric.  Machine number 16 took one rope of fabric and one roll.  Machine number 17 had four ropes of fabric of six rolls, giving 24 rolls in total.  Machine 32 had three ropes of fabric of up to six rolls, giving a total of 18.  Mr McKenzie said that machine number 12 could take one rope of fabric and two rolls, giving a total of two.  Therefore, it was twice as big as machine 16. .  This evidence was not contradicted

 

In terms of ropes of fabric, therefore, Mr Tran had operated three machines carrying a total of eight ropes and the machine he was requested to work could take only one rope.  The three machines that Mr Tran worked could hold 43 rolls of fabric and the additional machine he was asked to work involved an extra burden of 2 rolls. 

 

The evidence indicates that it would be a too simplistic an analysis to simply say that in being asked to work four machines instead of three, Mr Tran's workload was to increase by 25 per cent.  It would be more accurate to say that in terms of ropes, the work was to increase by 12.5 per cent and with respect to rolls, about 4.6 per cent.

 

However, one needs to take into account the evidence of Mr McKenzie that ropes can become twisted and the machine operator needs to correct this by partially unloading the machine.  Mr McKenzie agreed that this could be quite physical but was not "terribly physically demanding". 

 

Another aspect of the job which one needs to take into account is that the work involved lifting 25 kilogram salt bags onto a machine which loaded the salt into the dye machine.  Mr McKenzie said, when re-examined, that if one was running four machines it may be that two or three times per shift one would need to lift salt.  He described the process of loading salt as follows.  There was a spring loaded platform on which is put pallets of salt.  Mr McKenzie said as the weight on the platform reduces, the spring rises so that the platform is always at a working waist height.  There is a salt dispensing machine which the bags of salt are loaded onto.  The bag is then cut open and the salt falls into the machine.  The salt machine is then taken to the dying machine and the salt machine gradually dispenses salt into the dying machine at a metered rate.

 

There was other evidence given about the work effort involved in operating dye machines.  Mr Halpin explained that one not only needs to consider the number of machines that a person is operating but also the batches that they process through the machine.  He said that this is where the majority of the physical work takes place.  The remainder of the work is the monitoring of the machines.  Mr Halpin said you could run three machines and produce more batches than running four machines with less production time involved.  If a dye cycle was longer, the loading and unloading work of the operator would be reduced.  Mr Halpin explained that the respondent had been lengthening dye cycles to try and improve the quality of dying for customers of the respondent.

 

Mr Halpin said that he worked in the dye house one day a week, so he knew exactly what the operators were doing.  He said that in lifting a rope of fabric into the machine you are only lifting a "couple" of kilograms at any one time.  He said that he thought that it would be somewhere less than five kilograms of actual weight.

 

When called to give evidence the first time, Mr McKenzie explained in some detail the tasks performed by a dye machine operator.  The steps in the process involved loading the fabric into the machine, hooking the fabric out of the machine, sewing together ends of the fabric, making sure the dye recipe had been programmed correctly by taking the dye recipe to others to check, starting the program, monitoring the machines (which takes a period of four to fourteen hours and which can include the adding of salt), showing the sample to the supervisor and unloading.  In describing these processes Mr McKenzie indicated that there was limited lifting involved.  The main lifting would be of the 25 kilogram of salt which Mr McKenzie then explained could happen two to three times per shift.

 

In cross-examination Mr McKenzie agreed that Mr Tran had additional duties by being asked to work four machines, but the extent of the additional duties was not got into at that time.  However, further on in his cross-examination Mr McKenzie said that the loading of salt into machines only occurs if the machine is not a bleaching machine, and as best Mr McKenzie could recall, the extra machine that Mr Tran was asked to work was a bleaching machine.

 

When asked for his opinion, Mr Buyukyazici said he did not think there was too much work in a person being asked to run four machines.  He said machine operators at the respondent could do this work.  He said that the lifting involved was just the lifting of the salt bags of 25 kilograms each.  He said there was no other lifting.  He agreed that Mr Tran could work any fourth machine that he chose when the direction was made for him to work four machines.

 

Mr Taupau's evidence differed slightly on the machines that Mr Tran was asked to work.  He said that machine 32 was the extra machine and that this was a white machine.  However, he agreed that salt was only added to coloured dye machines and said that therefore salt would not be added to the extra machine involved.  In his description of the numbers of the machines that Mr Tran was being requested to work, I think Mr Taupau must have been mistaken, and prefer the evidence of Mr O'Connor and Mr McKenzie on this point.

 

In re-examination, Mr Taupau said that, "at the present time [there] is hardly any complaints on the floor regarding working four machines". 

 

Mr Karas' evidence was somewhat different.  He said that working four machines was physically very tiring, that he couldn't really cope with four machines but remained with the respondent because he was under financial pressure.  He also said that the person working next to him was always saying that four machines were too many machines.  I do not accord the latter evidence much weight, seeing that the person to whom Mr Karas was referring was not called to give evidence, and there was no explanation as to who this person was or why they could not give evidence.  I also have some doubts about the accuracy of Mr Karas' claim about how tiring he found working four machines.  Mr Karas could be properly characterised as a disgruntled ex employee of the respondent and therefore has some incentive to exaggerate his evidence.  In my opinion, given all of the other evidence about the work involved in working four machines, I do think that Mr Karas may have exaggerated this point to some extent.  In any event, however, the issue is not how Mr Karas found working four machines but whether the direction to Mr Tran to work the particular four machines that he was being assigned, was reasonable.  This is not something which the testimony of Mr Karas directly touches.  For example, Mr Karas was not asked about the number of ropes or rolls that were involved in the operation of the four machines which he operated.

 

Another factor to take into account is the evidence that despite the increase in number of machines from three to four, the amount of work actually done could well be less given that there was a decline in throughput of approximately 25 per cent and an increase in dye cycle times, according to the uncontradicted evidence of Mr Halpin.  Mr Halpin's conclusion was that a worker in Mr Tran's position would in actual fact not work as hard as they had been previously.

 

Other relevant evidence in assessing the extent of the increase in the work that Mr Tran was being asked to perform was that the operators themselves can control how quickly they get the machine loaded and unloaded and that as Mr Taupau said in evidence if individual operators needed help, there were extra people there to help them out.  Mr Taupau said the machine operators were told this by management, admittedly however at a meeting at which I have found Mr Tran did not attend.

 

The respondent also pointed to the fact that the hernia injury Mr Tran had in February 1995 was when he was pulling a truck load of wet fabric.  As at February 1996 the operators were not permitted to do this.  That work is now done by electric trucks.  In the unloading of the wet fabric, the operator takes just under ten kilograms of weight, from the evidence of Mr O'Connor.

 

The respondent also pointed to the uncontradicted evidence of Mr Halpin that Mr Tran had, in the past, worked four machines when people were away.  However, I give limited weight to this evidence, given that in my appraisal of it, the answer was somewhat speculative by Mr Halpin. 

 

In my opinion, given all of the evidence referred to above, there is substance in the respondent's submission that the actual increase in work for Mr Tran would not have been more than five to ten per cent.  Indeed, it could have been less than this.  What clearly emerges is that Mr Tran was only being asked to work one extra, small, machine and that this machine did not involve the loading of salt which requires the main lifting.  This supports the respondent's argument that the actual exposure to risk involved in Mr Tran following the direction given was small or non-existent; such that one could say that Mr Tran's claims that in working the extra machine he would expose himself to risk of injury were either unreasonable or not genuine.

 

THE FAILURE OF MR TRAN TO GIVE EVIDENCE

 

At the close of the respondent's case, the applicant's counsel called as his first witness Mr Karas.  He then made the no case submission referred to earlier.  He then informed the Court that Mr Tran was not being called to give evidence.  This was clearly a deliberate decision made by counsel on behalf of the applicant.  The issue is what turns on this in the circumstances of this case.  This involves the application to this case of the rule in Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 320 - 21.  That case, and the principle it stands for are considered in detail in Cross on Evidence, Australian Looseleaf Edition, paragraph [1215].  As Cross states, the principle is that the unexplained failure by a party to give evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party's case.  The failure to call such evidence may entitle the trier of fact to more readily draw any inference fairly to be drawn from the other evidence, by reason of the opponent being able to prove to the contrary had the party chosen to give evidence.  "Considerable significance may attach if the absent witness is the party" (Cross page 1088).  However, the principle only applies where the particular witness is necessary to explain or contradict issues relevant in the case.  As Cross puts it, "no inference can be drawn unless evidence is given of facts requiring an answer". 

 

Mr Kenyon submitted, in effect, that there was no damage to the applicant's case by the failure to call the applicant, because the onus of proof was on the respondent and there was sufficient evidence elucidated from other witnesses to show that the respondent could not prove their case.  In my opinion, this submission is not entirely correct.  In this case, the evidence presented by and on behalf of the respondent raised issues as to the amount of work that Mr Tran would be required to do in working four machines, and the reasons for his refusal to work four machines including whether his claim that doing so could injure his body were genuine or reasonable, given the work involved and the extent of his pre-existing condition.  Mr Tran would have been able to give evidence on these subjects.  The fact that he did not give evidence does, in my opinion, make it easier to draw the inferences which the respondent has asked me to.  In addition, the failure of the applicant to call medical evidence which would support the contention that Mr Tran was not medically fit to work four machines, also makes it easier to accept the respondent's proposition that this was not the case.

 

In my opinion, the comments of Mason CJ, Deane and Dawson JJ in Weissensteiner v The Queen (1993) 178 CLR 217 at 227, are apposite in that:

 

            "It has never really been doubted that when a party to litigation fails to accept an opportunity to place before the Court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the Court may more readily accept that evidence.  It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence.  That is almost a truism.  It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be  more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it".

 

Although Weissensteiner was a criminal case, it is clear that these observations by their Honours are applicable to civil as well as criminal litigation.

 

In particular, the failure of Mr Tran to give evidence makes it easier to draw the inference from the other available evidence that his refusal to work four machines was either not genuine or entirely unreasonable.  In this context, one can also take into account the uncontradicted evidence of Mr McKenzie that three times in February 1996, prior to Mr Tran being terminated, he indicated to Mr McKenzie that if he was offered a redundancy package, consistent with a redundancy package that was being offered to other types of employees of the respondent at the time, he would take it.  The respondent submitted, either directly or inferentially, that Mr Tran was, by refusing to work the four machines, in effect, making a play for the respondent to offer him the redundancy package that he had previously asked for.  This is another issue that could have been contradicted by Mr Tran had he given evidence.

 

THE LACK OF EVIDENCE OF INCAPACITY TO WORK FOUR MACHINES PRESENTED TO MR MCKENZIE

 

As set out earlier, the respondent referred to the fact that Mr Tran did not produce evidence of his incapacity to work four machines when requested to do so at the meetings with Mr McKenzie and that the failure by him to get such evidence by Friday, 23 February 1996 was indicative of a lack of genuineness and/or reasonableness of Mr Tran's belief that he may injure himself. 

 

I have made mention of this issue previously.  In my opinion, the respondent's point has most force in relation to the final meeting on 23 February 1996.  By this date, Mr Tran was aware that if he still refused to work four machines, his employment was going to be terminated.  One would have expected that if he had a genuine belief about risk of injury to himself, he would have obtained and presented a medical certificate to Mr McKenzie on 23 February 1996.  There was no evidence that Mr Tran lacked the aptitude or opportunity to organise such evidence.  He had been in contact with doctors in the past in relation to his medical conditions, as recently as 20 February 1996 for his arm injury.  Further, he had the representation of Mr Brookes at the first two meetings.  Mr Brookes knew what the issues were.  Any moderately competent shop steward in Mr Brookes' position would have advised Mr Tran to get medical evidence to support the contentions he had made to Mr McKenzie on the Wednesday and the Thursday.  The fact that Mr Tran did not have such medical evidence available by Friday means that either Mr Brookes did not give such advice or, if he did, Mr Tran did not follow it.  Further, even if Mr Brookes did not give this advice to Mr Tran, he was aware from Mr McKenzie's questioning of him on Wednesday and Thursday that Mr McKenzie was interested in whether Mr Tran could present any medical evidence to Mr McKenzie to substantiate his claims.

 

In all of these circumstances, in my opinion, the failure of Mr Tran to present medical evidence to Mr McKenzie on or before 23 February 1996 is telling evidence against the genuineness and/or reasonableness of Mr Tran's claims about the risk of injury to himself in operating four machines.

 

THE EVIDENCE ABOUT MR BROOKES

 

There was uncontradicted evidence that Mr Tran said to Mr McKenzie that he would work four machines if "the union" said that he had to.  The evidence was that Mr Brookes indicated that it was not up to him to say. 

 

The respondent relied upon this evidence as supporting the inference that Mr Tran did not genuinely believe that he would injure himself.  The argument was that if this was so, Mr Brookes saying that he had to work four machines would not change this belief.  I agree that the evidence is capable of supporting this inference.  However, there is a competing inference available from the comment.  This is that, I (Mr Tran) will agree to work four machines, despite the risks of injury to me, if the union, as a person there to protect my interests, indicates that I have to in accordance with my contract of employment.  Given this competing inference, I do not think Mr Tran's comment that he would work four machines if the union said he had to, takes the matter much further.

 

What is interesting, in my opinion, is the somewhat passive role that Mr Brookes took throughout proceedings.  The uncontradicted evidence was that, without demur, he witnessed both the first and second warnings and was quite happy for matters to progress on the Friday, in his absence.  This evidence suggests that Mr Brookes was happy for the issue to proceed along the disciplinary process that it did, culminating in Mr Tran's dismissal from employment.  If there was a genuine health and safety issue involved, Mr Brookes would not have been expected to take this sort of a stance.  However, there is the possibility that Mr Brookes was not a moderately competent shop steward, and therefore, there are limits to the extent to which one can use this as evidence in favour of the respondent's contentions.

 

REASONABLE DIRECTION - CONCLUSION

 

I have canvassed the evidence and the submissions of the respondent at length. In my opinion, the evidence, taken as a whole, supports the inference that Mr Tran's claims that he did not want to work the fourth machine for fear of injuring his body were either not genuine or at least very unreasonable.  The evidence has the effect that I am in a position that I can find that the direction to Mr Tran to work four machines was reasonable in the circumstances.  This is because the respondent has proved that in directing Mr Tran to work four machines there was no sufficient risk of injury to Mr Tran as to make the direction unlawful or unreasonable.  I will consider later the effects of Mr Tran's refusal to follow the reasonable and lawful direction of the respondent.

 

THE AWARD

 

There was no dispute that the applicant's employment was covered by the Textile Industry Award 1994 (the "Award").  The applicant contended that the respondent could not prove that it had not contravened clause 46A and 47 of the Award.

 

CLAUSE 46A OF THE AWARD

 

This clause of the Award was as follows:

 

            "46A - Grievance Procedure

 

(a)       Where an employee or the shop steward has submitted a request or complaint concerning any matter directly connected with employment or job conditions to a foreman or a more senior representative of management and has not received satisfaction the employee may refer the matter to a shop steward or if the matter has been raised by a shop steward he may refer the matter to the appropriate executive of the employer concerned.

 

(b)       The matter shall be discussed between the shop steward and the appropriate executive.

 

(c)        If the matter is not settled between the shop steward and the appropriate executive of the employer the matter shall then be referred by the shop steward to the secretary of the union and a meeting shall be arranged between the employer and if the employer so desires his association and the union and a conference shall take place as soon as practicable.

 

(d)       If the matter is not settled in accordance with subclause (c) hereof the matter shall be notified to the Industrial Registrar in accordance with Section 99 of the Industrial Relations Act 1988.

 

(e)        Where the above procedures are followed work shall continue normally.  No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this subclause.

 

(f)        Notwithstanding anything contained in the preceding subclauses (a) to (e) hereof, the parties shall be free to exercise their rights if the dispute is not finalised without unreasonable delay.

 

(g)       This clause shall not apply to any dispute as to a bona fide safety issue."

 

It can be seen that the grievance procedure commences where an employee or a shop steward submits a request or complaint concerning any matter directly connected with employment or job conditions to a foreman or more senior representative of management.  I am not satisfied that this occurred in this case.  Or, if the onus be the other way, I am satisfied that this did not occur.  Neither Mr Tran nor Mr Brookes, the shop steward, submitted a request or complaint concerning a matter to do with employment or job conditions to a foreman or a senior representative of management.  It was Mr McKenzie who was dealing with Mr Tran for a disciplinary matter, not Mr Tran that was complaining to management about a matter to do with employment.  Further, Mr Brookes made no complaint to management about Mr Tran being asked to work four machines.

 

Indeed, as I have said, seemingly without demur, Mr Brookes was a witness to both the first and second written warnings that were given to Mr Tran.

 

The presence of clause 46A of the Award does not, in the circumstances of this case, mean that there was not a valid reason for termination of employment.

 

CLAUSE 47 OF THE AWARD

 

This clause of the Award was as follows:

 

            "47 - INTRODUCTION OF CHANGE

 

            "Employer's duty to notify

 

(a)       (i)         Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and their union or unions.

 

                                    (ii)       "Significant effects" include termination of employment, major changes in the composition, operation or size of the employer's workforce or in the skills required;  the elimination or diminution of job opportunities, promotion, opportunities or job tenure; the alteration of hours of work;  the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.

 

                        Provided that where the award makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect.

 

            Employer's duty to discuss change

 

(b)       (i)         The employer shall discuss with the employees affected and their union or unions, inter alia, the introduction of the changes referred to in subclause (a) hereof, the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees and/or their unions in relation to the changes.

 

                        (ii)       The discussions shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in subclause (a) hereof.

 

                        (iii)      For the purposes of such discussion, the employer shall provide in writing to the employees concerned and their union or unions, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees; provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to his or her interests."

 

The duty to notify set out in this clause is predicated upon an employer making a definite decision to introduce major changes in (amongst other things) production or program, that are likely to have significant effects on employees.

 

The applicant submitted that this clause applied because the respondent made a definite decision to increase the number of machines worked by the dye house machine operators to four machines.

 

I think the evidence clearly establishes the respondent made a definite decision to introduce a change to machine operators working four machines.  The next question is whether this is a major change in production or program.

 

The expression "major change" is not defined in the Award. 

 

The same expression was used in a similar clause in an award considered in Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427.  At page 434 von Doussa J said that in the award before him the expression "major change" was directed to the impact which alteration to a present existing situation will have on management and administration whereas the notion of significant effects is directed to the impact which the alterations are likely to have on the employees and their employment.  His Honour said that the word "major" was a comparative term used to describe the magnitude the changes are likely to have on one or more of the effects said to constitute significant effects.  His Honour said that it is necessary to determine the presently existing situation, which is to be used as the comparator, when determining whether the magnitude of the changes are sufficient to characterise them as major.  The loss of a certain number of jobs in a small business could be said to involve major change, His Honour said.  Some of the factors relevant to a consideration of this question are set out at page 435 of the report. 

 

In this case I am satisfied that there were not major changes in production or program.  I have reviewed at length the evidence about the extent of the increase in work for an individual dye house machine operator after the implementation of the decision for individual operators to work four machines.  In my opinion, this could not be characterised as a major change.

 

However, if I am wrong in this, then I am satisfied that the major change did not have significant effects on employees.  In subclause 47(a)(ii), significant effects is defined.  The definition is inclusive.  The definition is not apt to cover the increase in work that was involved for machine operators working four machines rather than three or three and a half.  And, although the definition is inclusive, I think that the increase of work involved in this case is not of the same dimension as the type of significant effects mentioned in the definition, such as to be included as part of the expression "significant effects".  Further, I do not think that the changes involved in this case, in all the circumstances, fits within the ordinary meaning of the expression "significant effects".

 

I am therefore satisfied that the respondent did not contravene clause 47 of the Award and that the presence of this clause in the Award does not have the effect that the termination of employment was for other than valid reason.

 

ACCIDENT COMPENSATION ACT - SECTION 122

 

This section provides as follows:

 

"122(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)        the worker no longer has an incapacity for work, the employer must provide employment for the worker in a position which is the same as or equivalent to the position which he or she held before the injury;  or

 

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

 

            122(2)             Sub-section (1) does not apply if the employer can demonstrate to the Authority's satisfaction that it is not possible for the employer to provide employment in accordance with sub-section (1)(a) or suitable employment in accordance with sub-section (1)(b).

 

            122(2A)          Sub-section (1) does not apply to an employer of a worker in respect of a worker referred to in section 7(4A) of the Accident Compensation (WorkCover insurance) Act 1993.

 

            122(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 the 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.

 

            122(4)             The Authority must not commence proceedings against an employer under section 242(1) unless -

 

                               (a)the Authority has given the employer notice in writing that the Authority intends to file a charge against the employer for failing to comply with sub-section (1) unless within the period of 60 days after service of the notice the employer can demonstrate to the Authority's satisfaction that it was not possible for the employer to comply with sub-section (1) at the time of the alleged office;  and

 

                        (b)        the employer fails within that period to provide any information or sufficient information to demonstrate to the Authority's satisfaction that it was not possible for the employer to comply with sub-section (1).

 

            122(4A)          Subsection (2) does not apply if the Authority has given notice in writing under sub-section (4)."

 

In his closing, Mr Kenyon also referred to section 93 of the Act which provides the entitlement to weekly payments upon incapacity for work arising out of injury in the course of employment.  For the purposes of section 122(1) a worker commences to be entitled to receive weekly payments on the date of suffering the injury.  In this case, the date of the injury to the hernia was 7 February 1995.  The relevant period for the purposes of section 122(1), with respect to the hernia injury, therefore expired on 7 February 1996;  see section 122(3).  Therefore section 122 does not apply to the hernia injury.

 

However, section 122 is applicable to the injury to the arm which occurred on 14 February 1996.  Section 122(1)(a) applies to a worker who no longer has an incapacity for work, whereas section 122(1)(b) refers to a worker who has a partial incapacity for work.  The medical certificate from Dr Lee dated 20 February 1996 certified that Mr Tran was expected to be fit for normal duties from 21 February 1996.  Therefore his status was covered by section 122(1)(a).

 

In such circumstances, the employer must provide employment for the worker in a position which is the same as or equivalent to the position which he or she held before the injury.

 

A contravention of section 122 of the Act can expose an employer to a penalty of $25,000.  Accordingly the section is a penal one, the contravention of which carries serious consequences.  In the second reading speech of the Accident Compensation (WorkCover) Bill on 30 October 1992, the Minister said with respect to section 122:-

 

"Employers have the responsibility to ensure the safe and early return to work of injured workers.  Employers must provide workers with suitable employment during the first twelve months of incapacity or face heavy penalties, unless they can demonstrate their genuine inability to do so."

 

This sentiment carries the intent and flavour of section 122.

 

In this case I am satisfied that there has not been a contravention of section 122 of the Act.  This is because the employer did provide the worker with a position which was the same or the equivalent of the pre-injury position.  The position in fact was the same position, that of a dye house machine operator.  There was a change to the work involved in the position from three machines to four machines.  As set out at length, this was not a great increase in the work for Mr Tran to do.  Therefore, I am satisfied that the position was the same or if not the position was equivalent to the one held before injury.

 

In the circumstances, the words "position" and "equivalent" should, if there is any ambiguity, be construed to minimise the potential reach of the penal law;  Chew v The Queen (1991-92) 173 CLR 626 at 632, Beckwith v The Queen (1976) 135 CLR 569 at 576.

 

I am satisfied that section 122 of the Accident Compensation Act does not provide a reason why the decision to terminate Mr Tran's employment was not valid.

 

I am aware that there is authority which suggests the obligations under section 122 are not material to a claim for unlawful termination under the Workplace Relations Act;  see Huang v Ford Motor Company of Australia, unreported, IRCA 95/488, Murphy JR, 8 September 1995;  cf Nguyen v Nissan Casting Australia Pty Ltd, unreported, IRCA 95/657, Millane JR, 15 December 1995.  In this case, I need not determine the issue because I am satisfied that the respondent has proved that there was no contravention of section 122 of the Accident Compensation Act. 

 

VALID REASON FOR TERMINATION

 

I have set out earlier my opinion that the direction given to Mr Tran was both lawful and reasonable and did not expose him to an unacceptable risk of injury.  Mr Tran did not follow the direction given to him.  He did not follow it on each of three consecutive days, on the third of which his employment was terminated.  On each of the first two days he was given a written warning and advised that his failure to obey the direction may lead to a termination of his employment. 

 

However, the mere fact that Mr Tran did not follow the direction does not mean there has been a valid reason for the termination of his employment.  As Beazley J said in Izdes, page 451:-

 

            "In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee's conduct". 

 

At page 451/452 her Honour refers to authorities which establish this proposition.

 

I examined authorities to the same effect at pages 27 and 28 of Lupoi v Philips Fox, unreported, IRCA 485/96, Ritter JR, 3 October 1996, pages 26-28.  At page 26 of Lupoi I quoted from my earlier judgement of Garbutt v Stothers, unreported, IRCA 416/96, Ritter JR,  27 August 1996, at page 15 where I said:

 

"Where there is a termination based on misconduct, for there to be a valid reason for termination, the misconduct must have a quality sufficiently serious to warrant the termination of employment.  For example, it would be difficult to say that a secretary at a large office who stole one paper clip could be categorised by her employer as dishonest and a thief, and therefore there was a valid reason for termination of employment.  In my opinion, there must be a qualitative aspect of the misconduct sufficient to warrant the sanction of termination."

 

See also Fargie v Freedom Foods (Aust) Pty Ltd, unreported, IRCA 498/96, Parkinson JR, 14 October 1996.

 

At page 26 of Lupoi, I said that consideration of whether there has been a valid reason for termination, in the context of a dismissal on the basis of disobedience, insubordination or failure to comply with a lawful and reasonable command, will necessitate an examination of, amongst other things:-

 

1.         The extent of the disobedience, in terms of the length of time over which the employee has been disobedient;

 

2.         The nature of the disobedience in relation to the contract of employment;

 

3.         Any warnings given for failing to carry out the instruction;

 

4.         The reasonableness of the request, albeit that there is a controversy about whether a request must be both lawful and reasonable - see Macken, et al, The Law of Employment, page 201 and in particular footnote 47;

 

5.         Whether there has been a calculated and persistent course of disobedience;

 

6.         Whether the disobedience strikes at the essence of the contract of employment in the sense that it is inconsistent with the continuing relationship of employer and employee - see Macken, et al, page 199.

 

In Lupoi, I was not satisfied that a person primarily employed as a receptionist could be terminated for a stated intention of failing to comply with a request that she wash dishes, where this formed only a minor part of her duties.  I also found the employer was in that case, endeavouring to effect a qualitative change in the duties of Ms. Lupoi.  I found that the particular instruction that Ms. Lupoi allegedly failed to follow was only a minor part of her duties as a receptionist and that her intention to not carry out that instruction did not strike at the heart of the contract of employment between the law firm and their main receptionist.  My opinion was that it was a minor, incidental matter.

 

However, in my opinion this case is somewhat different to Lupoi.  Here the disobedience went for each of three consecutive days and there was no indication that it would dissipate.  The disobedience concerned the failure to follow an instruction to work four machines.  It was Mr Tran's primary responsibility to be a machine operator.  The failure to work the fourth machine was a component part of this major responsibility.  And, although the work involved in Mr Tran working the extra machine was physically not great, the failure to work the fourth machine was qualitatively significant.  For example, if Mr Tran did not work the fourth machine, someone else would have to.  The other machine operators were all working four machines and therefore the failure of Mr Tran to work the fourth machine would have presented an organisational and operational difficulty for the respondent.  Mr Tran was warned that if he failed to carry out the instruction his employment would be terminated.  The request to work the fourth machine was reasonable as I have discussed at length.  In my opinion it may well have been that Mr Tran was angling to be offered a redundancy package. I am satisfied that the disobedience strikes at the essence of the contract of employment such that the employer was justified in terminating the employer/employee relationship. 

 

In my opinion, the extent of the misconduct constituted by the failure to follow the direction to work four machines was sufficient to warrant the sanction of termination of employment.  I do not accept Mr Kenyon's submission that Mr Tran did not refuse to follow the direction as he said he would if the Union had said he had to.  Mr Brookes told Mr Tran he could not direct him on the issue and so therefore there was, after this, no issue that Mr Tran's refusal to follow the command was conditional.  As Mr Brookes was not going to be responsible for saying Mr Tran had to work four machines, the "condition" of Mr Brooke's approval would never be present, and so there was, in reality, a refusal to follow the direction.

 

In my opinion, the termination of employment was valid or justified, in the sense suggested by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373, Kenefick v ASC Pty Ltd (1995) 62 IR 107, per Wilcox CJ page 116 and Nettlefold v Kym Smoker Pty Ltd, Unreported, IRCA 469/96, Lee J, 4 October 1996.

 

The applicant submitted that this case was analogous to the decision of Lee J in Winter v Australia National Hotels, Unreported, IRCA 574/95, 25 October 1996.  It is sufficient to say that I have considered this case and am satisfied that the facts and circumstances are different from Winter.   Winter is not an authority which compels a conclusion different to the one that I have reached.

 

On the facts as I have found them, this was not a case where Mr Tran's (partial) withdrawal of labour was on the basis of a genuine and/or reasonable health or industrial issue with union support, where other considerations may apply.

 

CONCLUSION

 

For the reasons set out above, the application is dismissed.

 

I certify that this and the preceding sixty (60) pages

are a true copy of the reasons for decision of

Judicial Registrar Ritter.

 

 

 

 

Associate:

 

Date:

 

 

 

 

APPEARANCES

 

 

Counsel for the Applicant:                                       Mr N. Kenyon

 

Solicitors for the Applicant                                     Maurice Blackburn & Co.

 

 

Counsel for the Respondent:                                   Mr S. Wood

 

Solicitors for the Respondent:                                Freehill Hollingdale and Page

 

 

Date of hearing:                                                         30 September 1996,

                                                                                    1 - 3 October 1996 and

                                                                                    25 November 1996

 

Date of judgment:                                                     13 March 1997