[2007] AIRCFB 1049 |
PR980226
|
[Note: a corrigendum has been incorporated into this document - see [2007] AIRCFB 1049_PR982114 signed 19 June 2008]
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.120 appeal against decisions
[[2007] AIRC 422] and [[2007] AIRC 886]
issued by Deputy President Parsons on 28 May and 17 October 2007
Big W Monarto Warehouse/590 Regional Distribution Centre
(C2007/3723)
s.643 application for relief in respect of termination of employment
K L Paech
and
Big W Monarto Warehouse/590 Regional Distribution Centre
(U2006/6139)
JUSTICE GIUDICE, PRESIDENT |
|
SENIOR DEPUTY PRESIDENT KAUFMAN |
|
COMMISSIONER WHELAN |
MELBOURNE, 19 DECEMBER 2007 |
Appeal – termination of employment – misconduct – arguments not put at first instance – after-acquired knowledge of conduct prior to termination – relevance of post-termination conduct – Workplace Relations Act 1996 ss.120, 643, 652(3), 654.
DECISION
[1] This is an appeal, for which leave is required, by Big W Monarto Warehouse/590 Regional Distribution Centre (the appellant) against decisions made by Deputy President Parsons on 28 May and 17 October 2007 in connection with an application by Ms K Paech (the respondent) for a remedy in relation to the termination of her employment by the appellant. 1 The application had been made pursuant to s.643 of the Workplace Relations Act 1996 (the Act). In the decision of 28 May 2007 Her Honour found, pursuant to s.652(3) of the Act, that there was no valid reason for the termination of the respondent’s employment and that the termination was harsh, unjust or unreasonable. In the decision of 17 October 2007 Her Honour decided that the appellant should reinstate the respondent to the position in which she had been employed prior to the termination of her employment and made orders accordingly pursuant to s.654 of the Act.
[2] Appeals are governed by s.120 of the Act. It is not necessary to set that section out. An appeal to the Full Bench lies only by leave of a Full Bench. A Full Bench must grant leave if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. Otherwise, the grant of leave is governed by the conventional considerations for the grant of leave to appeal by an appellate court which include whether the decision is attended by sufficient doubt to warrant its reconsideration or whether substantial injustice might result if leave is refused. It should also be mentioned that an appeal may only be made against an order of the kind in this case on the grounds that the Commission was in error in deciding to make the order. 2
[3] The respondent had been employed by the appellant as a casual storeperson at a warehouse distribution centre since October 2003. At the time of the termination of her employment on 14 September 2006 she was working on limited duties and restricted hours due to her having sustained a work-related injury. She was in receipt of weekly payments of income maintenance pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA).
[4] The respondent’s employment was terminated for conduct the appellant contended constitutes serious and wilful misconduct justifying termination. It is common ground that the respondent had undergone spinal surgery for a work-related injury and that immediately prior to the termination of her employment she had been working on modified duties pursuant to agreed Rehabilitation and Return to Work Plans which identified certified suitable duties and nominated certain restrictions upon her physical activities and her hours of work. In the proceedings before Deputy President Parsons the appellant alleged that the respondent had exaggerated her level of impairment and had dishonestly misrepresented the position in that regard to her general practitioner, to a neurosurgeon and to the appellant. Among other things the appellant relied on video surveillance material that allegedly showed the respondent performing activities inconsistent with the stated level of her incapacity.
[5] The grounds of appeal which were finally pressed related to matters which only came to light during the hearing before the Deputy President and which we shall now describe. During her evidence before the Deputy President the respondent admitted that she had continued to take a morphine-based drug on an occasional basis for pain relief despite the fact that her general practitioner, being concerned about the prolonged effects of taking the drug, had switched her from that drug to Panadeine Forte some time before. The respondent failed to disclose her continued, occasional use of the narcotic drug to the general practitioner. An issue also arose concerning the manner in which the respondent obtained the narcotic drug. She said that after her general practitioner had stopped prescribing it she still had some at home. She also said that she had taken the doctor’s prescription to the chemist and had been given 5 repeats at the one time. The general practitioner said she would not have prescribed repeats of such a strong drug. This evidence cast serious doubt on the respondent’s explanation. The Deputy President found that the respondent was not telling the truth when she explained how she had obtained the drug, although no positive finding was made as to how she did acquire it. Her Honour found that the respondent “gave inaccurate evidence about how she managed to have a supply of that medication…I think the employee was being less than frank on this issue and it reflects badly on her.” 3
[6] On the appeal the appellant contended that the Deputy President should have found that the respondent had misled her doctor and the appellant as to her continued use of the narcotic drug and had lied in the Commission as to how she obtained supplies of the drug and, on that basis, had been guilty of misconduct justifying dismissal. It was submitted in the alternative that Her Honour should have taken these matters into account in relation to remedy.
[7] The appellant contended that the respondent’s failure to disclose her use of the narcotic drug denied her doctor an opportunity to properly assess the respondent and ensure that it was safe for her to work at the specified restrictions. It further contended that this misrepresentation related directly to her relationship with her employer in that the purpose of her visit to her doctor was directly related to her rehabilitation and her capacity to render service.
[8] It is clear that after-acquired knowledge of conduct which occurred prior to termination of employment may be relevant in deciding whether there was a valid reason for the termination, whether the termination was harsh, unjust or unreasonable and in relation to remedy. 4 That is sufficient to render potentially relevant the respondent’s failure to disclose her continued occasional use of the stronger drug to her doctor or to the appellant. The appellant also sought to persuade us that post-termination conduct by a former employee might also be taken into account. It submitted that Her Honour should have taken into account the respondent’s dishonesty in the witness box, both on the issue of whether the termination was harsh, unjust or unreasonable and on the issue of whether reinstatement was an appropriate remedy.
[9] These submissions encounter a number of difficulties. We deal first with the question of the significance of these matters on the merits of the respondent’s application.
[10] The nub of the appellant’s case on the merits in that respect, as summarized by Deputy President Parsons in the decision of 28 May 2007, 5 was that if the respondent was prepared to mislead her general practitioner about the use of medication an inference could more readily be drawn that she also misled her about the extent of her incapacity. Her Honour rejected that submission in the following terms:
“[81]. . . I reject that proposition. I am not satisfied that lack of frankness between the employee and Dr Ryan on the use of medication demonstrates that she misled Dr Ryan as to her capacity. Indeed, the continued use of strong pain relief in these circumstances is, in my view, more consistent with the employee having ongoing pain and restriction of movement than an attempt to deliberately exaggerate the extent of her problems.
[82] The evidence of Dr Ryan does not support a finding that the employee was deliberately misleading her as to her symptoms or level of mobility during the period from February to September 2006.”
[11] It is clear that the Deputy President dealt directly with the submission put to her and rejected it. There is no apparent error in that regard. But on appeal a different submission has been put, namely that the acts of dishonesty, albeit coming to light after the termination of the respondent’s employment, should be taken into account on the issue of whether the termination was harsh, unjust or unreasonable. In particular it was submitted that the non-disclosure of her use of the narcotic drug and her lie, as it was described, in the witness box constituted misconduct justifying termination of employment.
[12] On appeal the Commission does not generally entertain merit arguments which had not been advanced at first instance, although different considerations may apply where the matters raised are jurisdictional. 6 Although Mr Manuel SC, who appeared for the appellant, accepted that the argument was not put at first instance, he submitted that the evidence had been before the Commission and Her Honour had an obligation to take it into account.
[13] We disagree. As was observed by the High Court of Australia in Metwally v University of Wollongong(No 2) 7 albeit in a different context:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
[14] Had the argument been put to Her Honour it is possible that the respondent might have sought to lead additional evidence, for example to explain how she apparently obtained additional supplies of the drug in question. Certainly the respondent would have had the opportunity to make submissions as to why her conduct did not constitute serious misconduct. 8 There are no circumstances in this case which would justify a departure from the established principle that on an appeal of this kind a party is bound by its case on the merits at first instance.
[15] In any event, we are not persuaded that the respondent’s conduct in letting her treating doctor believe that she was no longer using the drug in question amounted to misconduct warranting termination of her employment. We accept that the taking of narcotic drugs is a serious matter that may have health and safety consequences in the workplace. It is also very important that employees who are on rehabilitation programmes are frank with their practitioners and their employer about relevant medical issues, particularly where the employer is funding the programme either directly or indirectly. There is no evidence in this case, however, to suggest that the respondent’s use of the drug had, or was likely to have, any impact on her work performance, especially insofar as her or anybody else’s safety is concerned, or on the progress of her rehabilitation. Nor is there any evidence that her use of the narcotic drug was more than occasional or for reasons other than to assist her to cope with severe pain. If it was misconduct it was of a fairly minor nature.
[16] Nor do we accept that the Deputy President’s rejection of the respondent’s evidence as to how she apparently obtained additional supplies of the drug constituted a relevant finding on the question of whether there was a valid reason for the termination of employment. No submission of that nature was put at first instance and for reasons already given it cannot be put now. Even if that were not the case, the Deputy President’s finding that the respondent did not tell the truth in the witness box could not itself be relevant to the question of whether there was a valid reason for the termination of the respondent’s employment. As a matter of logic, post-termination conduct could not constitute a valid reason for the termination. Furthermore, and leaving aside questions of credibility and appropriate remedy, we cannot see how that finding could be relevant in any other way to the merits of the application.
[17] The appellant has not demonstrated an arguable case of error arising from the manner in which the Deputy President dealt with the merits of the application in the decision of 28 May 2007. We turn now to the decision on remedy.
[18] In the proceedings on remedy the appellant submitted that reinstatement was not appropriate because the appellant had lost trust and confidence in the respondent as a consequence of her evidence in the Commission both as to non-disclosure of her continued use of the narcotic drug and the rejection of her evidence as to how she obtained it. Her Honour’s decision, so far as relevant to the grounds of appeal, appears to us to be beyond reproach. First she posed the correct question, namely: whether the material relied upon by the employer provided an adequate basis for a sound and rational opinion that there was a loss of trust and confidence. She analyzed the evidence advanced on the appellant’s behalf and noted there was no previous indication of dishonesty during the course of the respondent’s employment and that the dishonesty in question did not have any intrinsic relevance to the contract of employment, on the one hand relating to the relationship between the respondent and her doctor and on the other relating to her evidence in the Commission. She then continued:
“[26] Criticism of the credit of a witness by a fact-finding tribunal, with the power to administer an oath or to take an affirmation, is a matter of some significance to those proceedings. It may also have significance to events associated with those proceedings. However, the level of significance to the proceedings, and more generally, will vary depending upon the extent of the criticism and whether it relates to a critical or peripheral aspect of the matters in issue in the proceedings.
[27] Fundamentally the entire case at the initial hearing rested on the credit of the employee because the issue was whether she had deliberately misled her employer by misrepresenting her level of her incapacity for work. As it transpired, the Commission accepted her evidence on the crucial issue because it found corroboration and support for her evidence in the evidence of other lay and medical witnesses. It is only in this one area of the use of prescription narcotics that her reliability was found wanting.
[28] In the overall context, it can be said that the criticism of her credit was minimal and peripheral. When viewed in that context and bearing in mind the low level of autonomy and responsibility pertaining to the previous employment role, Mr Holmes’ opinion that “it is well nigh impossible for me to have any trust in the honesty of the applicant in future” is not based upon sound and rational grounds. In my view that opinion is the product of his long held self-justificatory view that the termination was justified.
IS REINSTATEMENT APPROPRIATE?
[29] Having concluded that there is no sound and rational basis for a lack of trust and confidence in the employee and that the employee has a cooperative and positive attitude to the employer, it remains to consider those aspects together with the other relevant facts to determine the appropriateness or otherwise of an order for reinstatement.”
[19] It can be seen that Her Honour did not confine her consideration to the issue of credit but squarely addressed the question of loss of trust and confidence. Her rejection of the appellant’s submission was clearly open on the evidence. While reasonable minds might differ on the issue, we can discern no error in the manner in which Her Honour dealt with it. It has not been shown that there is an arguable case of error in the Deputy President’s decision on remedy either.
[20] Her Honour’s decision is not attended with sufficient doubt to warrant its reconsideration, nor will any injustice result if leave to appeal is refused. Nor are we of the opinion that in the public interest leave ought be granted to appeal.
[21] We refuse leave to appeal.
BY THE COMMISSION:
PRESIDENT
Appearances:
R Manuel SC for the appellant.
T L Stanley QC for the respondent.
Hearing details:
2007.
Melbourne:
December 11.
1 [[2007] AIRC 422] and [[2007] AIRC 886].
2 See Workplace Relations Act 1996 s.685(2)
3 [2007] AIRC 422 at para 80.
4 See Workplace Relations Act 1996 s.652(3)(a); Concut Pty Ltd v Worrell (2000) 176 ALR 693; Lane v Arrowcrest Group Pty Ltd (1990) 99 ALR 45; Byrne v Australian Airlines (1995-96) 185 CLR 410.
5 [2007] AIRC 422 at para 81.
6 Goumas v Wattyl Australia (2005) 145 IR 256 at 267.
7 (1985) 60 ALR 68 at 71.
8 Inco Ships Pty Ltd v Finlay Murdoch Hardman (2007) FCA 1138 at 34.
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