[2009] AIRC 777

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Miss Tegan Perry
v
Coffs Ex-Services Memorial and Sporting Club Ltd
(U2009/1851)

COMMISSIONER THATCHER

SYDNEY, 18 AUGUST 2009

Termination of employment – Arbitration.

[1] On 17 February 2009 Ms Tegan Perry filed an application for relief in relation to the termination of her employment by Coffs Ex-Services Memorial and Sporting Club Ltd, Coffs Harbour (Coffs Ex-Services Club) on the ground that the termination of her employment was harsh, unjust or unreasonable. The matter did not settle at conciliation and Ms Tegan elected to proceed to arbitration. The hearing occurred on 24 June 2009. Ms Perry was represented by the Liquor, Hospitality and Miscellaneous Union (LHMU) and Coffs Ex-Services Club was represented by the Registered Clubs Association of New South Wales.

[2] Ms Perry was employed as a part-time Food and Beverage Attendant from 3 July 2007 under an Australian Workplace Agreement (AWA) and worked an average of 28 hours per week. She was predominantly rostered to work in the coffee shop and kids club and on the odd occasion rostered as a bar attendant or in the restaurant. Ms Perry’s employment was terminated on 9 February 2009 on the grounds of misconduct. 1

[3] The termination followed an incident where Ms Perry carried two trays of empty wine glasses between the Vista and Brasserie Bars. At the time, because of a soft tissue injury to her right shoulder, Ms Perry was performing restricted duties. Her agreed Return to Work (RTW) plan provided that specific duties to be avoided included ‘no lifting greater than 6kg’ and two trays of empty wine glasses were found to weigh 10.8kg. On 12 February 2009 she was cleared to perform pre-injury duties.

[4] At the hearing the following gave evidence:

On behalf of Ms Perry

Ms Perry, the applicant

Mr Peter Burles, LHMU union organiser (statement only)

Ms Janet Southcott, LHMU workplace delegate

On behalf of Coffs Ex-Services Club

Ms Deborah Baldwin, Human Resource Coordinator, who performs the role of Return to Work Coordinator

Mr Gregory Engel, Gaming and Compliance Manager (who was to finish employment on 11 July 2009)

Mr Andrew Parker, Service Manager

Mr Jeffrey Cox, Operations Manager

Ms Donna Anderson, Food and Beverage Attendant

Mr John Rafferty, Chief Executive Officer

Ms Karolin Odisho, Case Manager of QBE Insurance for whom the Coffs Ex-Services Club was a client

Ms Nicole Press, Rehabilitation Consultant, Interact Injury Management, appointed by QBE Insurance to assist with Ms Perry’s rehabilitation (affidavit only)

BACKGROUND

[5] On 2 July 2008 Ms Perry incurred an injury to her right shoulder for which the workers compensation insurer, QBE Insurance, accepted liability. On 4 August 2008 she was cleared for pre-injury duties.

[6] On 1 December 2008 on arrival at work for the shift commencing at 7.00am Ms Perry was experiencing pain in the same shoulder. After inquiring about what she should do with the Service Manager, 2 he advised her to report it to Ms Deborah Baldwin, Human Resource Coordinator, who performs the role of Return to Work Coordinator, who commenced work at 9.00am. Ms Perry left a voice mail on Ms Baldwin’s phone shortly after 8.00am. Subsequently, Ms Baldwin instructed Ms Perry to stop working (in the coffee shop) and made an appointment for her to be examined by a general practitioner, Dr Ridley (who was not the doctor who assessed her original injury), later that day.

[7] Ms Perry made it known that on 29 November 2008 she had woken up with a slight pain in the shoulder. Subsequently the pain subsided and she felt it was better by the time she started work on an afternoon shift. Ms Perry worked a further afternoon shift on 31 November 2008. She had not made the presumption that the feeling was a recurrence of her previous injury as ‘I thought I was sleeping on it funny or something like that, because the pain went’. 3 There was no evidence that Ms Perry experienced pain in her shoulder during the course of her working on either of those days.

[8] After the medical examination on 1 December 2008, Dr Ridley issued a WorkCover Medical Certificate which certified Ms Perry as fit for suitable duties with no excessive use of her right shoulder until 9 December 2008 and included as a management plan therein:

[9] Dr Ridley was not called to give evidence. However according to Ms Baldwin, who was at the medical appointment, Dr Ridley said that ‘he would put both the ultrasound and cortisone injection on the same referral, as if the injection was needed it could be given at the same time and this would save having to come back and make additional appointments.’ 5 This accords with Ms Perry’s evidence that she had understood that the ultrasound was to determine if the injection was required.

[10] The next day Ms Perry told Ms Baldwin that she had been advised by her father not to have the steroid injection.

[11] On 3 December 2009 the pain in Ms Perry’s shoulder had become worse and she reported this to Ms Baldwin who made another appointment with Dr Ridley that day. The Commission was not provided with any further medical certificate by Dr Ridley. However the Commission was advised that he certified Ms Perry as being unfit for that day and fit for suitable duties (with no lifting of her arm) until 9 December 2009 with a review on 11 December 2008. He referred her for blood tests (which came back inconclusive), medication and physiotherapy. 6 She commenced performing administrative duties.

[12] On 5 December 2009 Ms Perry advised Ms Baldwin that she had discussed the proposed injection with the physiotherapist (who had treated her original injury) who would be writing to Dr Ridley. On 9 December 2009, the physiotherapist wrote to Dr Ridley canvassing whether the steroid injection could be delayed to allow for natural posture correction and guided strengthening. He stated: ‘I am sure she will respond quickly to conservative management given she complies with her self-management programme.’ 7

[13] Also on 9 December 2009, the day of the scheduled ultrasound and injection with a radiologist, Ms Perry repeated her concerns about the steroid injection to Ms Baldwin and stated that she did not want the injection. Ms Baldwin telephoned Ms Karolin Odisho, the case manager at QBE Insurance, and after speaking to her passed the phone to Ms Perry who spoke separately with Ms Odisho. In relation to those conversations:

[14] After making a phone call, Ms Perry advised Mr Baldwin that she would keep the radiology appointment ‘and have the treatment as booked’. 10 In her evidence Ms Perry stated:

[15] When Ms Perry returned from the radiology appointment she advised Ms Baldwin that she had the ultrasound but when she was lying on the table she could not go through with the injection and refused the procedure. In her evidence Ms Perry stated: ‘I believe I have the ultimate right to decide what is done to my body’ and ‘I was not prepared to treat my condition in such an aggressive manner, and preferred to treat my condition with less drastic measures, i.e. physiotherapy …’. 12

[16] Ms Baldwin advised Ms Perry that she had broken her RTW plan ‘by not following the instructions of the treating doctor and the instructions of the insurer, who had advised both of us earlier that morning, that if Tegan did not want the injection, the radiology appointment was to be cancelled and we were to book to go back to the treating doctor for reassessment.” 13

[17] Ms Perry was called to a conference with Mr Gregory Engel, Gaming and Compliance Manager (who is Ms Baldwin’s direct manager), Ms Baldwin and (via telephone) Ms Odisho. The conference continued notwithstanding that Ms Perry was upset and tearful. According to Ms Baldwin, Ms Perry explained that whilst she did want to get better she didn’t want the injection in her body and the radiologist would not confirm that the injection would not harm her body. According to Ms Baldwin, Ms Odisho:

[18] Later, Ms Perry advised Ms Baldwin that she wanted to change her QBE Insurance case manager because she did not like the way Ms Odisho had spoken to her and what had been implied. It seems that this request was then processed as a ‘complaint’ and that QBE Insurance sought responses from Mr Engel and Ms Baldwin before dismissing the complaint against Ms Odisho as unsubstantiated. 15 Like much of Ms Baldwin’s evidence, I found Ms Baldwin’s statement that she did not know why Ms Perry wanted to change her case manager16 to be less than convincing.

[19] Ms Perry (accompanied by her father) and Ms Baldwin attended the next review with Dr Ridley on 11 December 2008. Dr Ridley upgraded her suitable duties to lifting up to 2kg. 17 According to Ms Baldwin, Dr Ridley stated that it was his recommendation she have the prescribed treatment but Ms Perry was welcome to see another doctor.18 The previously recommended ultrasound and steroid injection was not included in the medical certificate and the management plan therein was: ‘gradual rtw’.19 Dr Ridley explained that Ms Perry may feel some pain whilst her muscles were strengthening with the physiotherapy exercises. He suggested she be given duties with a balance between administrative tasks and tasks in her own work area.20

[20] At the next medical review on 30 December 2008 (which Ms Perry attended with Mr Engel) her work capabilities were amended to include lifting up to 2kg with one hand and the management plan therein was ‘physiotherapy’. 21

[21] Interact Injury Management was engaged as a rehabilitation provider and on 6 January 2009 Ms Nicole Press, a Rehabilitation Consultant thereof, undertook a workplace assessment, on the basis that Ms Perry was restricted to lifting 2kg with one hand. The assessment included weighing a number of commonly used items of crockery and glassware to assist with future upgrades in the suitable duties program. This included the weight of a tray of schooner glasses of 7.35kg (but did not include the lesser weight of a tray of empty wine glasses). 22 The summary included that ‘under the current restrictions Ms Perry will need to avoid carrying more than 1-2 of the heavier plates at a time in her injured hand.’ The recommendations of the assessment included that functional education be undertaken with Ms Perry at the workplace after each upgrade of suitable duties.

[22] On 8 January 2009 a disciplinary meeting was held with Ms Perry (who was accompanied by Ms Janet Southcott, LHMU workplace delegate) following which Mr Engel issued Ms Perry with a ‘verbal warning’ which consisted of a file memorandum that covered most of an A4 page. 23 The warning was issued because (paraphrasing):

[23] On 12 January 2008 Ms Perry, who had been assigned to scraping-plate duties only, took it upon herself to pack the dishwasher. Also, Ms Perry and others were spoken to for talking about non-work related matters.

[24] On 14 January 2009 the workplace assessment, which included the weights of the sample of items, was emailed to Ms Perry. 24

[25] On 22 January 2009, Ms Perry, Ms Baldwin and Ms Press met with Dr Ridley who further upgraded her capabilities for lifting by increasing the weight to 6kg and nominated 12 February 2009 as the expected date of her return to pre-injury duties.

[26] In her case conference report, Ms Press stated:

[27] On 27 January 2009, Ms Perry signed a RTW plan that had been prepared by Ms Baldwin 26 with a review dated of 12 February 2009 (being the expected date of her return to pre-injury duties) that included under the heading ‘Specific duties to be avoided’ the words ‘No lifting greater than 6kg’. Also under ‘medical restrictions’ the words ‘(as per WorkCover certificate)’ – such certificate then stating that Ms Perry’s capabilities for normal hours were ‘Lifting up to 6kg’. Unlike the workplace assessment, the RTW plan did not contain the weights of the sample of items. The RTW plan included the note:

[28] In her evidence Ms Press stated that a costed RTW plan (outlining services and costs for rehabilitation services, not duties to be performed) was developed on 30 January 2009 and forwarded to various parties for signing but no signed copies were returned to Interact Injury Management. 27 Such RTW plan was not tendered as evidence.

[29] On 28 January 2009, after Ms Perry had completed administration duties she reported to Mr Jeffrey Cox, Operations Manager, who, upon observing her shirt to be creased, sent her home to have it ironed.

[30] On 4 February 2009, the incident occurred which led to Ms Perry’s dismissal. Mr Andrew Parker, Service Manager, observed Ms Perry carrying two trays of empty wine glasses from the Vista Bar to the Brasserie Bar, a distance of approximately 100-150 metres. According to Mr Parker, after Ms Perry had put the trays down he asked her why she didn’t use a trolley to carry the glasses, to which Ms Perry responded: ‘I am allowed to carry six kilos and I felt OK carrying the glasses’. At the time there was limited discussion about the issue, with Mr Parker advising Ms Perry not to argue with him. 28

[31] Mr Parker entered the incident in the club’s software program ‘Risk Manager’, which resulted in the entry going to the chief executive and other senior level managers. 29

[32] On 5 February 2009 (Ms Perry’s rostered day off), without the involvement of Mr John Rafferty, the Chief Executive Officer, Mr Engel phoned Ms Perry with advice that she was suspended pending a meeting to be held on 9 February 2009.

[33] The confirming letter of suspension dated 5 February 2009 30 which was written by Mr Engel (without input from Mr Rafferty) referred to the agreed RTW plan prepared by Ms Baldwin and the 7.35kg weight of a tray of schooner glasses in the workplace assessment and stated that her carrying the two trays of empty wine glasses (which involved a total weight of 10.8kg) was a direct breach of such RTW plan. The letter also referred to:

[34] On 9 February 2009 Ms Perry was accompanied by Mr Peter Burles, LHMU organiser, and Ms Southcott to the meeting with Messrs Rafferty and Engel. During the meeting she responded to the letter of suspension with a prepared statement. After discussion, the meeting was adjourned and Messrs Rafferty and Engel discussed what action was to be taken.

[35] Mr Rafferty decided to terminate Ms Perry’s employment summarily for serious and wilful misconduct and she was verbally advised to that effect. 31 Mr Rafferty made the decision for two reasons, namely:32

[36] In addition, he was aware of previous warnings given to Ms Perry about other matters and had formed the view that she was a less than exemplary employee. 33

[37] In his evidence Mr Rafferty clarified his view that once the trust in a relationship has broken down, that is serious misconduct. 34 A breach of trust is the most serious and wilful misconduct.35

[38] Later that day, after Mr Rafferty had obtained industrial advice, he wrote to Ms Perry advising that her employment would be terminated because it had been found that she had ‘breached policies, the OH&S Act, Return to Work Plan and the Conditions of Employment’. 36

[39] Although such correspondence did not contain such advice (and Ms Perry was not otherwise advised), 37 it was Mr Rafferty’s intention to down-grade the termination from serious and wilful misconduct to misconduct. Ms Perry was compensated in lieu of notice.38

[40] Mr Engel explained that all of the reasons in the letter of termination, namely the breach of policy, the Occupational Health and Safety Act and the RTW plan were because of the lifting of the trays which were in excess of six kilos. 39 He stated:

[41] Mr Rafferty explained that the reference to ‘conditions of employment’ referred to Ms Perry’s AWA. 41 Clause 13 (Safety) of the AWA prescribed:

[42] Mr Engel explained the breach of the conditions of employment as follows:

[43] As had been foreshadowed by Dr Ridley on 22 January 2009, on 12 February 2009 he cleared Ms Perry as fit for pre-injury duties. 44

RELEVANT LEGISLATION

[44] Subsection 643(1)(a) of the Act provides:

[45] In Byrne v Australian Airlines Limited the High Court explained these grounds as follows:

[46] The Commission is required to have regard to a number of matters specified in s.652(3) of the Act. That subsection provides:

[47] It is also relevant to consider s.635(2) of the Act which provides that the procedures and remedies concerning the conciliation and arbitration of claims, as well as the manner of deciding on and working out remedies:

[48] It is now well established that each of the paragraphs in s.652(3) must be considered in determining an application in so far as they have application or are relevant to the circumstances of the case. 47  That approach is summarized in the following passage from the judgement of Moore J in Edwards v Giudice and Others:

[49] In Liu and others v Windsor Smith , the Full Bench noted that a valid reason for the termination was not the critical factor and stated:

[50] In accordance with the majority decision in Rail Corporation of NSW v Vrettos; 50

[51] It is accepted that the decision of the Full Bench of the Commission in King v Freshmore (Vic) Pty Ltd  51 (when considering s.170CG of the Industrial Relations Act 1998) is also applicable to the existing provision. In that case the Commission indicated the task of the Commission is not to review the employer's decision as to what conduct occurred but to determine itself, on the evidence, whether the conduct occurred. It stated:

[52] Both parties referred me to a number of cases, which I have considered.

S.652(3)(a) - WAS THERE A VALID REASON FOR THE TERMINATION?

[53] There is a general acceptance that the often quoted words of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (Selvachandran) also apply to the existing provision:

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

[54] Insofar as they may be relevant to these proceedings, s.42(1), s.44, s.45, s.47, s.57 and s.119 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) prescribe:

[55] There has been no suggestion that Ms Perry, after giving notice of her injury, did not submit herself for examination by a medical practitioner pursuant to s.119. Also there has been no suggestion that Ms Perry failed to participate and co-operate in the establishment of an injury management plan (in terms of s.47(1)), that QBE Insurance was required to established (pursuant to s.45).

[56] Under s.47(2) an employee on suitable duties has an obligation to comply with the conditions imposed under their injury management plan.

[57] The question of whether, Ms Perry failed to comply with the obligations imposed upon her by an injury management plan is a question of fact. 53 As stated by Von Doussa J in Sutcliffe v General Motors Holden Automotive Ltd, restrictions in return to work plans (in that case under South Australian Workers Rehabilitation and Compensation Act 1986) may not be absolute.54 However, even if Ms Perry had failed unreasonably to comply with the obligations imposed on her by an injury management plan after being requested to do so by QBE Insurance, under the legislation, at best she could have had no entitlement to weekly payments of compensation during the period that such failure continued.

[58] I find nothing in the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to suggest that the contents of the WorkCover medical certificate dated 1 December 2008 from Ms Perry’s treating doctor constituted an injury management plan under that legislation.

[59] Rather, the WorkCover Guidelines on Independent Medical Examinations and Reports 55 makes reference to workers’ treating medical practitioners. The guidelines state, amongst other things, that medical questions that arise in the context of managing a workers compensation claim should be directed to the treating medical practitioner in the first instance. Further, the nature of the relationship between the injured worker and the treating medical practitioner, and their knowledge of the worker's medical history, before and after the injury, make their input invaluable to the management of the worker’s injury. In any event, in this case, I accept the uncontested evidence that Dr Ridley’s prescription of a steroid injection was on an ‘if needed’ basis, and had the status of a recommendation.

Occupational Health and Safety

[60] All employees have duties under the Occupational Health and Safety Act 2000 (NSW), namely:

[61] I was left in no doubt that the Coffs Ex-Services Club management is committed to providing a safe and healthy work environment for all employees, visitors and contractors and to making every reasonable effort to prevent accidents, protect employees from injury and promote the health, safety and welfare of all employees. It expects employees to accept responsibility to adhere to safe work practices, instructions and rules and perform all work in a manner which ensures individual health and safety. 56

[62] Further, the Coffs Ex-Services Club management expects its employees to comply with their AWA obligations in relation to safety. This included its expectation that Ms Perry comply with clause 13 of her AWA (refer to paragraph 41 above).

[63] However, all of this does not mean that if an employee breaches any such obligation, even unintentionally, and as a consequence their employment is terminated, that:

[64] Rather, whether or not Ms Perry’s action in carrying the two trays of empty wine glasses was a valid reason for the termination of her employment requires consideration of the prevailing circumstances surrounding the incident. Therefore, I will consider the issues that lead to Ms Perry’s termination and consider whether they constitute a valid reason within the meaning of the Act.

Warning of 8 January 2009

[65] Although the difference between a verbal and written warning is not entirely clear to me, 57 a verbal warning is considered by the Coffs Ex-Services Club and its employees to be less serious than a written warning.

[66] I find on the balance of probabilities that if Ms Perry had not received the verbal warning of 8 January 2009, her employment would not have been terminated as a consequence of the subsequent incident. This is based on the following considerations:

[67] To the extent that Ms Perry’s termination relied on such warning, for the following reasons I find that the decision to terminate was prejudiced or tainted because her actions (on which the warning was based) did not warrant disciplinary action for misconduct.

[68] Firstly, I find that Ms Perry’s refusal to have the steroid injection did not warrant disciplinary action for misconduct for reasons that include the following:

[69] It is at best recklessness or over-zealousness for the Coffs Ex-Services Club to characterise Ms Perry’s action in refusing a recommended and conditional cortisone injection as seriously as a ‘Breach of … your RTW Obligations.’ 75

[70] Under cross-examination Ms Baldwin struggled to maintain her position that Ms Perry had broken (or breached 76) her RTW plan by not following the instructions of the treating doctor and the instructions of the insurer77 when she stated that:

[71] Secondly, I find that Ms Perry’s actions in not going back to Dr Ridley on 9 December 2008 when this option was put to her (and saying that she would agree to the injection) and then changing her mind did not warrant disciplinary action for misconduct, even though Ms Baldwin 81 and Mr Engel82 gave evidence that the verbal caution included such actions. This is based on reasons that include the following:

[72] Thirdly, I am not satisfied that Ms Perry breached her obligations under her AWA in failing to report pain in her shoulder prior to commencing work on 1 December 2008 and, insofar the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is concerned, I am of opinion 88 that such failure was not a breach of s.44 (Early notification of workplace injury). The reasons include:

Incident on 4 February 2009

[73] The conduct that was at the heart of Ms Perry’s termination was the glass-carrying incident on 4 February 2009. As stated by Mr Rafferty:

[74] According to Mr Rafferty, in doing so Ms Perry breached ‘policies, the OH&S Act, Return to Work Plan and the Conditions of Employment’ – as stated in the termination of employment letter. 94

[75] When discussing the gravity of Ms Perry’s misconduct in carrying the two trays of glasses in a busy club, Ms Rafferty stated:

[76] Ms Perry’s evidence was that:

[77] On behalf of Coffs Ex-Services Club:

[78] I am satisfied that Ms Perry was aware of the physical limitations imposed on her in respect of her suitable duties and her obligations to comply with her RTW plan. Emphasis was placed on health and safety during the 8 January 2009 verbal warning.

[79] Whilst the incident did not aggravate the injury to Ms Perry’s right shoulder and it was anticipated that she would be cleared for pre-injury duties on 12 February 2009, although there was no medical evidence to this effect, it is possible that the weight had the potential to aggravate the injury and therefore jeopardize the anticipated resumption of pre-injury duties.

[80] Ms Perry did not know the weight of a tray of empty wine glasses until she received the letter of suspension. The Coffs Ex-Services Club relies on Ms Perry’s having the ability to estimate the weight of such trays which had previously not been weighed. In that respect I have noted the attitude of the club in its closing submissions:

[81] There was no evidence that the upgrade of suitable duties from 2kg to 6kg involved functional education with Ms Perry at the workplace in relation to how this would affect the additional items that she would be able to lift – as recommended in Ms Press’ workplace assessment of 14 January 2009.

[82] Having considered Ms Perry’s evidence, I am satisfied that the reason for her exceeding the 6kg limit on the one occasion was that she ‘did not think’ in the busy, albeit, usual, environment. This is understandable. It is an explanation but it does not excuse her for not complying with a RTW plan.

[83] The evidence does not support a finding, objectively determined, that in carrying the trays of wine glasses Ms Perry deliberately decided to disregard and act contrary to her RTW program. 109

[84] There was insufficient evidence to support a finding that in not using a trolley to carry the trays of glasses Ms Perry was breaching a lawful direction.

Dishwasher incident on 12 January 2009

[85] Whilst she was on suitable duties Ms Perry performed office work, scraped food off dirty plates, polished cutlery, undertook deep cleaning of bars, worked in the uniform room, wiped ash trays and picked up glasses.

[86] Some day before the incident, whilst Ms Perry was performing scraping-plate duties, a front of house coordinator saw that she had no plates to scrape and told her to take some initiative and not be idle. 110

[87] Mr Cox confirmed: ‘we certainly do like people using their initiative to work within the scope of the job and their abilities or restrictions, whatever it may be.’ 111

[88] Ms Perry offered to assist the kitchen staff with dishwashing, because they were a staff member down. 112

[89] Ms Donna Anderson, who was rostered as a brasserie supervisor and had given Ms Perry specific instructions only to do plate-scraping duties, found that Ms Perry had taken it upon herself to stack the commercial dishwasher. 113 Ms Anderson explained:

[90] At the time Ms Perry was restricted to lifting 2kg with one hand and Ms Press’ workplace assessment had stated: ‘…Ms Perry will need to avoid carrying more than 1-2 of the heavier plates at a time in her injured hand.’ 115

[91] Ms Perry gave evidence (which was not contradicted) that she ‘wasn’t lifting any heavy stuff, the kitchen hands were lifting the heavy stuff for me into/out of the dishwasher.’ 116 Also, she handled each item (plate, cup, etc) individually or one or two at the most.117

[92] According to Ms Press’ workplace assessment, the heaviest plate weighed 1.1kg.

[93] Whilst there was evidence that manoeuvring of a stacked tray into the dishwasher could involve lifting the heavy tray, Ms Anderson conceded that a stacked tray could be manoeuvred into the dishwasher without lifting the tray. 118

[94] According to Ms Anderson, she was concerned that Ms Perry would exceed the 2kg limit. 119 However she did not assert that Ms Perry exceeded the 2kg limitation.120

[95] There is insufficient evidence for me to find that Ms Perry exceeded the weight limit of 2kg with one hand in performing these duties.

[96] Rather, on the evidence, the worst that can be said is that, when specifically instructed, or to use Mr Engel’s terminology, ordered to perform only scraping-plate duties, without adequate authority Ms Perry volunteered to perform dishwasher duties.

[97] Also, whilst performing scraping-plate duties, on one occasion Ms Anderson had cause to speak to Ms Perry and other staff about chatting about matters that were not work related. 121

[98] There was no evidence of a file note to the effect that a verbal warning was given to Ms Perry in relation to such incidents. 122

Loss of confidence

[99] The question arises as to whether Ms Perry demonstrated a pattern of conduct that involved a reluctance or incapacity to observe health and safety instructions or restrictions associated with her performance of suitable or normal duties such that she could not be trusted to observe her obligations.

[100] There was no suggestion that Ms Perry’s participation in the rehabilitation of her July 2008 injury was less than satisfactory.

[101] I have found that Ms Perry did not breach her obligations in failing to report pain in her shoulder prior to commencing work on 1 December 2008.

[102] I have found that Ms Perry’s refusal to have the steroid injection did not warrant disciplinary action for misconduct.

[103] I have found that Ms Perry’s actions in not going back to Dr Ridley on 9 December 2008 when this option was put to her (and saying that she would agree to the injection) and then changing her mind did not warrant disciplinary action for misconduct.

[104] I have found that when instructed to perform only scraping-plate duties, without adequate authority Ms Perry volunteered to perform dishwashing duties because that area was a staff member down.

[105] I have not found that Ms Perry exceeded the weight limit of 2kg with one hand in performing the dishwasher duties.

[106] I have found that on one occasion Ms Perry exceeded the 6kg limit in her RTW plan when she ‘did not think’ in a busy work environment and carried two trays of empty wine glasses when glasses were needed and a patron was waiting.

[107] Given the circumstances, I am satisfied that, objectively determined, Ms Perry did not display a pattern of behaviour such that she could no longer be trusted to adhere to health and safety instructions or restrictions.

Conclusion

[108] In my opinion, the prevailing circumstances were such that Ms Perry’s carrying of the two trays of wine glasses which weighed in excess of the limitation of 6kg in the RTW plan prepared by Ms Baldwin did not constitute a valid reason relating to Ms Perry’s capacity or conduct (including its effect on the safety and welfare of other employees) for the termination of her employment (within the meaning of Selvachandran).

S.652(3)(b) – WHETHER THE EMPLOYEE WAS NOTIFIED OF THAT REASON?

[109] The reference in s.652(3)(b) to ‘that reason’ is a reference to the valid reason for the employee's termination. 123 The reason must be given prior to the decision to terminate.124

[110] Prior to the termination of her employment Ms Perry was made aware that the disciplinary interview was to address the glass-carrying incident within the context of the verbal warning of 8 January 2009 and the dishwasher incident on 12 January 2009.

[111] Subsequent to Ms Perry being verbally advised of the termination of her employment, later that day she received a letter from the Coffs Ex-Services Club advising that she had been found to have breached policies, the OH&S Act, her RTW plan and her conditions of employment.

[112] It was not suggested on behalf of Ms Perry that the Commission should find that subparagraph 652(3)(b) had not been complied with. 125

S.652(3)(c): WHETHER THE EMPLOYEE WAS GIVEN AN OPPORTUNITY TO RESPOND TO ANY REASON RELATED TO THE CAPACITY OR CONDUCT OF THE EMPLOYEE

[113] Section 652(3)(c) provides that the Commission must have regard to whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee. The opportunity to respond refers to an opportunity that is provided before a decision is taken to terminate the employee's employment. 126 The ‘any reason’ refers to the valid reason for the employee's termination.127

[114] In cases where an employee's conduct is involved, this opportunity serves two purposes. Firstly, it gives the employee the opportunity to demonstrate that the allegations have no foundation. Secondly, it gives the employee the opportunity to persuade the employer that, while the allegations are of substance, there are factors that should persuade the employer not to terminate the employment. Those factors may be extenuating personal circumstances or they may involve undertakings about future conduct. 128 The following comments of Moore J (when considering s.170DC of the Industrial Relations Act 1998) are relevant to the second purpose:

[115] I am satisfied that Ms Perry was given adequate opportunity to respond to the conduct that lead to the termination of her employment.

S.652(3)(d): IF THE TERMINATION RELATED TO UNSATISFACTORY PERFORMANCE BY THE EMPLOYEE—WHETHER THE EMPLOYEE HAD BEEN WARNED ABOUT THAT UNSATISFACTORY PERFORMANCE BEFORE THE TERMINATION

[116] This consideration is not relevant to these proceedings given that Ms Perry’s employment was terminated on the grounds of misconduct, rather than her capacity. 130

S.652(3)(e): THE DEGREE TO WHICH THE SIZE OF THE EMPLOYER'S UNDERTAKING, ESTABLISHMENT OR SERVICE WOULD BE LIKELY TO IMPACT ON THE PROCEDURES FOLLOWED IN EFFECTING THE TERMINATION

[117] Coffs Ex-Services Club did not suggest that it could rely upon its size as a justification for any defects in the procedures followed in effecting the termination of Ms Perry’s employment.

S.652(3)(f): THE DEGREE TO WHICH THE ABSENCE OF DEDICATED HUMAN RESOURCE MANAGEMENT SPECIALISTS OR EXPERTISE IN THE UNDERTAKING, ESTABLISHMENT OR SERVICE WOULD BE LIKELY TO IMPACT ON THE PROCEDURES FOLLOWED IN EFFECTING THE TERMINATION

[118] Coffs Ex-Services Club does not employ a dedicated human resource manager. However it does employ a Human Resource Coordinator. It is a relatively large organisation and did not seek to rely upon its size as a justification for any defects in the procedures followed in effecting the termination of Ms Perry’s employment.

S.652(3)(g): ANY OTHER MATTERS THAT THE COMMISSION CONSIDERS RELEVANT

[119] I am required to have regard to any other matters I consider relevant.

[120] I have had regard to the importance that the Coffs Ex-Services’ Club places on its safety culture. Mr Rafferty stated that before he went to the club it had ‘a very bad culture and we've changed the culture considerably in that organisation where it's a much happier environment where people are working …’ In his view employing someone ‘who had breached policies and conditions of employment sets a bad culture throughout the organisation and could set us backwards to where we are now, which would be detrimental on the long term future and viability of our organisation because the club was travelling on the downward slope before I actually got there.’ 131

[121] I have considered Mr Rafferty’s response to the question of how he considers Ms Perry fits into the culture that he has established, both in respect of occupational health and safety and the workplace generally, namely that she does not fit in with the culture because she actually goes against notifying people and complying with conditions of employment. 132 There were no reasons given for this view, apart from the matters canvassed elsewhere in this decision.

[122] In February 2008 Ms Perry received a final warning because of her punctuality. There was no evidence that her punctuality had subsequently been less than satisfactory.

[123] On 28 January 2009, after Ms Perry had completed administration duties she reported to Mr Cox who, upon observing her shirt to be creased, sent her home to have it ironed. Mr Cox made a counselling/disciplinary record in Risk Manager. According to Mr Cox this was not intended to be part of a formal disciplinary process but rather his diary note of their conversation. 133 There was no evidence to suggest that this was not an isolated incident.

[124] I have considered the submission on behalf of Ms Perry that the punishment of termination of employment did not fit the ‘crime’ of carrying the trays of glasses and that lesser forms of discipline were open to the Coffs Ex-Services Club and should have been exercised. 134 Whilst it was not conceded that the glass carrying incident had involved misconduct, any such conduct was of a most modest degree and any penalty should have been of a more modest nature.135 The club could have reaffirmed its policies with Ms Perry and given her a final written warning that a further non-compliance with her RTW plan would result in the termination of her employment.136

CONCLUSION ON HARSH, UNJUST OR UNREASONABLE AND A FAIR GO ALL ROUND

[125] After having regard to each of the matters in paragraphs 652(a) to (g) of the Act in so far as they have application or are relevant to the circumstances of this case I am satisfied that the termination of Ms Perry’s employment by Coffs Ex-Services Club was harsh, unjust or unreasonable.

[126] In arriving at that decision I have been conscious of the objects of Division 4 (Termination of Employment) of Part 12 of the Act, including ensuring that both Ms Perry and Coffs Ex-Services’ Club are accorded a ‘fair go all round’.

RELIEF

[127] Section 654 of the Act provides:

[128] I have considered the effect of any order I may make on the viability of the Coffs Ex-Services Club. In my view there is no reasonable basis on which to conclude that a remedy would affect the viability of the club.

[129] I have considered the length of Ms Perry’s employment, which was a relatively short period.

[130] I have had regard to the remuneration Ms Perry would have received from the respondent if her employment had not been terminated. 137

[131] I have had regard to Ms Perry’s efforts in relation to mitigation, including her registration with a local placement agency and her undertaking casual work for approximately a week before commencing full-time employment on a trial basis with another employer as from 26 May 2009. 138

[132] I have considered the submissions on remedy, including:

[133] I have taken into consideration the nature of the business of the Coffs Ex-Services Club, that it employs 227 people, 142 and that Ms Perry was employed as a Food and Beverage Attendant on a part-time basis with hours averaging 28 per week.

[134] I am not satisfied that reinstatement is not practicable.

[135] I am not satisfied that any perceived loss of trust and confidence is soundly and rationally based. As stated by the Federal Court in Perkins v. Grace Worldwide (Aust) Pty Ltd: 143

[136] I do not believe the employment relationship between the Coffs Ex-Services Club and Ms Perry has irretrievably broken down.

[137] I have had regard to all of the matters to which I had regard pursuant to s.654(2) including all of the circumstances of this application and that the manner of deciding on and working out the remedy ensures that a ‘fair go all round’ is accorded to both the employer and employee concerned.

[138] On the basis of the material before me, I consider it appropriate that Ms Perry be reinstated.

[139] With respect to s.654(3) and (4) I will issue an order requiring reinstatement of Ms Perry to a position on terms no less favourable to those on which she was employed immediately prior to her termination. Continuity of employment is to be maintained for the purposes of all accrued entitlements. Ms Perry is to be compensated for the loss of her income from termination of employment to the date of reinstatement, although this is to be reduced by any amount since earned by Ms Perry.

[140] An order giving effect to this decision will issue separately as PR988556.

[141] This matter can be re-listed if there is any necessity to settle orders in relation to loss of wages.

BY THE COMMISSION:

COMMISSIONER



Appearances:

Mr C Acev of Liquor, Hospitality and Miscellaneous Union for the applicant.

Mr G Arnold of Registered Clubs Association of New South Wales for Coffs Ex-Services Memorial and Sporting Club Ltd.

Hearing details:

2009

Bellingen

23, 24 June

Further written submissions received on 25 June 2009.

 1   Exhibit R10, para 30.

 2   PN407.

 3   Exhibit A3, para 28.

 4   Exhibit A2, Annexure G.

 5   Exhibit R2, para 12.

 6   Exhibit R2, para 14.

 7   Exhibit A2, Annexure H.

 8   Exhibit A2, paras 28-30, Exhibit A3, para 19.

 9   Exhibit R2, para 21.

 10   Exhibit R2, paras 21 & 22.

 11   Exhibit A3, para 26.

 12   Exhibit A3, paras 20 & 31.

 13   Exhibit R2, para 24.

 14   Exhibit R2, paras 28-34 & 36.

 15   Exhibit R2, paras 44-47.

 16   PN788.

 17   Exhibit A2, Annexure I.

 18   Exhibit R2, para 48.

 19   Exbibit A2, Annexure I.

 20   Exhibit R2, para 48.

 21   Exhibit A2, Annexure J.

 22   Exhibit R1, para 8; Exhibit A2, Annexure M, Summary of critical physical demands of pre-injury duties in relation to injury.

 23   Exhibit R4, Annexure B.

 24   Exhibit R1, para 8.

 25   Exhibit A2, Annexure N.

 26   Exhibit A2, Annexure O.

 27   Exhibit R1, para 12.

 28   Exhibit R6, paras 5-9.

 29   PN1366.

 30   Exhibit A2, Appendix P.

 31   Exhibit R10, para 30.

 32   Exhibit R10, paras 20-24.

 33   Exhibit R10, para 24.

 34   PN1730.

 35   PN1864.

 36   Exhibit A2, Annexure R.

 37   PN1879.

 38   Exhibit R10, para 30.

 39   PN1205.

 40   PN1202-PN1204.

 41   PN1717.

 42   Exhibit R11.

 43   PN1208.

 44   Exhibit A2, Annexure L.

 45   McHugh and Gummow JJ, (1995) 185 CLR 410 at 465.

 46   The note to s.635(2) states that the expression ‘fair go all round’ was used by Sheldon J in Re: Loty and Holloway v Australian Workers Union (1971) AR (NSW) 95.

 47   Chubb Security Australia Pty Ltd v John Thomas, Print S2679, 2 February 2000, per McIntyre VP, Marsh SDP and Larkin C; King v Freshmore (Vic) Pty Ltd, Print S4213, 17 March 2000, per Ross VP, Williams SDP and Hingley C; Tenix Defence Systems Pty Ltd v Fearnley, Print S6238, 22 May 2000, per Ross VP, Polites SDP and Smith C; Annetta v Ansett Australia, Print S6824, 7 June 2000, per Giudice P, Williams SDP and Cribb C.

 48   (2000) 169 ALR 89 at 92.

 49   Print Q3462, 13 July 1998, per Giudice J, Polites SDP and Gay C.

 50   [2008] AIRCFB747, 8 October 2008, per McCarthy DP and Blair C, as endorsed by the Full Bench in Tam v Brisbane City Council [2008] AIRCFB 960, 12 December 2008, per Lacy SDP, Ives DP and Harrison C, at para 17.

 51   Op cit.

 52   (1995) 62 IR 371, 373.

 53   Betts v Prisk Contractors (2001) 22 NSWCCR 238.

 54   (1998) 80 IR 142, para 94. The context was whether a partially incapacitated employee with residual capacity to perform activities consistent with requirements of work duties should expend that capacity in the performance of work duties in priority to all personal and domestic demands.

 55   Dated 25 October 2006 under s.119 and s.376 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

 56   Coffs Ex-Services Club policy that was provided with its written submissions but not tendered as evidence.

 57   I have remarked on how the verbal warning given to Ms Perry on 8 January 2009 covered most of an A4 page. Also, in his evidence (Exhibit R4, para 18) Mr Engel stated that as there was some dispute over whether or not Ms Perry had commenced work in pain without advising the club, this would not be placed on her file (and he would investigate further). However it was clear from Mr Rafferty’s evidence that it was on her file (PN1804-PN1805). It seems that whilst both verbal and written warnings are in writing and placed on the employee’s file, a written warning is signed by the employee whereas a verbal warning is not.(PN85 & PN2273)

 58   Exhibit A2, Annexure P.

 59   PN1788.

 60   Exhibit R4, para 20.

 61   Exhibit R4, paras 27-28 and PN1179.

 62   PN1182.

 63   Exhibit R4, Annexure B, last paragraph.

 64   Exhibit R10, para 22.

 65   PN1814.

 66   PN1806 and PN1810.

 67   Exhibit R2, para 48.

 68   Exhibit R3, paras 11, 13 & 16.

 69   Exhibit R2, para 12.

 70   I prefer Ms Perry’s evidence that the ultrasound occurred over Ms Odisho’s evidence that it was not undertaken. (PN1022) Also, there was no medical evidence to support Ms Baldwin’s assumption that the injection was required. (PN781)

 71   Exhibit R2, para 21.

 72   PN1124.

 73   PN1087.

 74   PN771.

 75  Letter of suspension dated 5 February 2009, Exhibit A2, Annexure P.

 76   PN646.

 77   Exhibit R2, para 24; PN636.

 78   PN631 and PN648.

 79   PN649.

 80   PN654-PN655.

 81   PN655.

 82   PN1086.

 83   Exhibit R4, Annexure B.

 84   Including reference to paragraphs 29, 30, 35 & 40, of Ms Baldwin’s affidavit (Exhibit R2) in respect of statements made by Ms Odisho.

 85   An example was her inaccurate statement that employees sign a statement at the bottom of a WorkCover medical statement that they will comply with the doctor on all treatments. (PN831 & PN862) Another was her statement that workers compensation legislation does not address the situation where an employee refuses to comply with a RTW plan. (PN840) I could list others.

 86   PN623.

 87   Exhibit A2, para 31.

 88   It is the practice of the Commission to ‘form an opinion’ in circumstances where the Commission is called on to exercise its general arbitration powers. In those circumstances an opinion is formed as a stepping-stone towards the arbitration because the Commission cannot exercise a judicial power (Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd, (1987) 163 CLR, per Mason CJ, Brennan, Deane, Dawson and Toohey JJ, 140, 149.

 89   PN1184.

 90   Mr Engel’s evidence does not assert that his investigation did not reveal that Ms Perry had been working in pain before she spoke to her supervisor, although prior to such investigation he was of that understanding. (Exhibit R4, para 18)

 91   Exhibit R2, para 8.

 92   PN597-PN599.

 93   PN1724.

 94   PN1852.

 95   PN1855.

 96   PN178-PN181.

 97   PN186.

 98   PN191.

 99   PN202-PN204.

 100   PN430 and PN432.

 101   PN1748.

 102   PN1747.

 103   PN1269 & PN1341.

 104   PN1278.

 105   PN1272.

 106   PN1714.

 107   PN1859-PN1860.

 108   PN2318.

 109   As conceded by Mr Engel (PN1137).

 110   This evidence was included in Ms Perry’s witness statement in reply. Coffs Ex-Services Club objected to the introduction of evidence from another party and I reserved the club’s right to allow this to be raised later in the proceedings if it considered it relevant. It had the opportunity to cross-examine Ms Perry on such evidence (PN265-PN267) and did not seek to introduce evidence from the coordinator.

 111   PN1435.

 112   Exhibit A2, para 54; PN268.

 113   Exhibit R9, para 8.

 114   PN1549.

 115   Exhibit A2, Annexure M.

 116   Exhibit A2, para 55.

 117   Exhibit A3, para 14.

 118   PN1586-PN1587.

 119   PN1595 and PN1603.

 120   PN444, PN1592 & PN2295.

 121   Exhibit R9, para 6; PN1617-PN1619.

 122   PN2218.

 123   Decision of the Full Bench in P Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897, 11 May 2000, per Ross VP, Acton SDP and Cribb, at para 64. Endorsed by the Full Bench decision in Ben Clifton Sabeto v Waterloo Car Centre Pty Limited trading as Red Spot Rentals, PR930816, 20 May 2003, per Acton SDP, O'Callaghan SDP and Foggo C, at para 8.

 124   P Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, op cit, at paragraph 73. Also endorsed in Ben Clifton Sabeto v Waterloo Car Centre Pty Limited trading as Red Spot Rentals, op cit at para 8.

 125   PN2103 & PN2105.

 126   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, op cit, at para 75.

 127   Tenix Defence Systems Pty Ltd v Fearnley, op cit, at para 83.

 128   Ross VP, in Shorten and Others v Australian Meat Holdings Pty Ltd, (1996) 70 IR 360, 361.

 129   Wadey v YMCA Canberra [1996] IRCA 568 (12 November 1996).

 130   Annetta v Ansett Australia, S6824, 7 June 2000, per Giudice P, SDP Williams, Cribb C, at para 16.

 131   PN1898.

 132   PN1929 & PN1937.

 133   PN1472 & PN1476.

 134   PN2017, PN2099 & PN2142.

 135   PN2187.

 136   PN2139.

 137   Applicant’s outline of submissions, para 39.

 138   PN2158.

 139   PN376 and PN382.

 140   PN1889-PN1895. Ms Baldwin gave no evidence to this effect.

 141   PN1899.

 142   PN1898.

 143   (1997) 72 IR 186 at 191, per Wilcox CJ, Marshall and North JJ.




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