[2012] FWA 6600 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Darren Chetcuti
v
Coles Group Supply Chain Pty Ltd
(U2012/5806)
COMMISSIONER ROBERTS |
SYDNEY, 18 SEPTEMBER 2012 |
Application for unfair dismissal remedy - no valid reason, harsh, unjust and unreasonable. Applicant reinstated with full continuity and compensation for lost wages.
[1] This decision concerns an application lodged on 6 March 2012 by Mr Chetcuti pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in relation to the alleged unfair termination of his employment by Coles Group Supply Chain Pty Ltd (Coles or the Company). The application was dealt with by a Fair Work Australia Conciliator on 26 March but the conciliation was unsuccessful.
[2] The matter was set down for arbitration hearing in Sydney on 5 July 2012. Directions were issued for the filing of written submissions, witness statements and any supporting documents. That process was completed on or about 13 June 2012.
[3] At the hearing Mr Chetcuti was represented by Mr S Mueller of the National Union of Workers, NSW Branch (the NUWN) and Coles by Mr T McDonald of Moray & Agnew Lawyers. Mr Chetcuti gave sworn evidence and Mr J Cody, an official of the NUW, also gave sworn evidence for the Applicant. Mr J Chown, Manager at Coles’ Smeaton Range Distribution Centre (the DC), gave sworn evidence for the Company.
Background
[4] Mr Chetcuti commenced employment with Coles as a storeman on 31 December 2001. He was initially employed on a casual basis before taking up permanent employment from 9 January 2002.
[5] His work at the DC included picking and packing orders, which involved operating forklifts and other machines. Mr Chetcuti was involved in an accident at work on 23 March 2011 caused by the explosion of the battery on a forklift which he was operating. Mr Chetcuti instructed solicitors to act for him in May 2011 and lodged a workers compensation claim following the accident which was initially accepted and Mr Chetcuti performed ‘suitable duties’ for a period. On 23 August 2011 Coles declined Mr Chetcuti’s claim and withdrew him from suitable duties and told him to ‘go home’. The Applicant then accessed accrued leave entitlements, those entitlements ran out in mid-November 2011. On 7 November 2011, Mr Chetcuti’s solicitors registered an Application to Resolve a Dispute with the Workers Compensation Commission (the Commission).
[6] The last medical certificate supplied by Mr Chetcuti to Coles was on or about 11 August 2011. According to Coles, Mr Chetcuti did not respond to correspondence from Coles dated 29 November 2011, 17 January 2012 and 3 February 2012. That correspondence sought further information in relation to Mr Chetcuti’s medical status with the last letter demanding that he either supply the further information requested by 8 February or attend a meeting with Coles on 10 February to supply that information and to discuss his fitness. Mr Chetcuti says that he did not directly action Coles’ requests on the advice of the NUWN, which told him that there was no need to as the matter was in hand and awaiting proceedings before the Commission.
[7] On 15 February 2012, Coles wrote to Mr Chetcuti terminating his employment, in the following terms 1:
“Dear Darren
We refer to our letter to you dated 3 February 2012.
We consider in the absence of your response to our letter dated 3 February 2012 that:
You have failed to comply with Coles Group Supply Chain’s lawful and reasonable directions to ascertain you capacity to return to work, given your duty to co-operate with Coles Group Supply Chain in relation to health and safety matters; and
There is no reasonable prospect of you resuming your pre-injury duties in the near future. In addition, there are no other suitable positions available for you, and for us to provide the facilities necessary to enable you to carry out your pre-injury duties would, in Coles Group Supply Chain’s view, constitute an unjustifiable hardship.
You will appreciate that we are not able to hold your position open indefinitely. I therefore regret to inform you that Coles Group Supply Chain has decided to terminate your employment.
This letter provides you with 1 weeks’ notice of the termination of your employment. Accordingly, your employment will cease on 22 February 2012.
I wish you the best for the future and hope that in time you make a complete recovery.
Please contact me on [xx xxxx xxxx] if you have any questions regarding this letter.
Yours sincerely,
Daniel Ng
Shift Manager - Smeaton Grange DC.”
[8] On 24 February 2012, the Commission issued a Certificate of Determination - Consent Orders which restored Mr Chetcuti’s entitlements from 23 August 2011. The Certificate notes that the issuing of the Consent Orders followed a conciliation conference assisted by a Commission arbitrator which led “to an agreed resolution of the issues in dispute”. 2
[9] Mr Chetcuti maintains that his dismissal was unfair and seeks reinstatement, compensation for lost wages and continuity of service for all purposes.
Evidence
Mr Chetcuti
[10] Mr Chetcuti gave sworn evidence and submitted a witness statement 3.
[11] It was Mr Chetcuti’s witness statement that prior to his workplace injury, he worked four days a week from 5 am until 2.15 pm. On 23 March 2011 he was rostered to operate a forklift which had a large battery located beneath the driver’s seat. That battery exploded. “The force of the explosion was felt mostly in my left ear. Within seconds I was covered by acid and smoke. Battery acid was splattered over me.” He was then told by a shift manager to fill out a report, go home and wash off the battery acid and then return to work. He did as directed and continued driving a forklift despite problems with his hearing. He reported those problems to a manager and was conveyed by ambulance to see the company doctor, Dr T Tran. Dr Tran certified him as fit for pre-injury duties but suggested he undergo a hearing test. He continued to suffer from earache and headache and Dr Tran informed him that he had suffered a significant level of hearing loss and was certified by Dr Tran as being fit for ‘suitable duties’. He was then provided with office duties. Dr Tran later told him that the hearing in his right ear had improved but not in the left ear. Dr Tran attributed Mr Chetcuti’s problem with his left ear to an old injury. “This did not sound right to me as I still had a ringing in my ears and I never had problems with my hearing before the accident.”
[12] In April 2011, Mr Chetcuti asked to change his nominated treating doctor to a Dr L Lam who was the applicant’s usual General Practitioner. He signed documents allowing Dr Lam to release medical information to Coles. Subsequent testing and consultation with an Ear Nose and Throat (ENT) specialist followed and he was diagnosed with suffering inflammation in his left ear arising from the explosion of the forklift battery.
[13] “After a few months I wanted to go back on the warehouse floor. Dr Lam said that I could do this for two hours per day because he wanted me to gradually increase the time on the floor to avoid damage to my left ear. I tried to work on the floor but I could not bear working around or on the forklifts. I was not sure if this was because I just get anxious, or because of the loud noise. I was scared that I would be near an explosion again. Because of the constant ringing in my ear I did not sleep well and if I did I often had nightmares. I also had constant headaches.”
[14] Dr Lam then diagnosed him as suffering from post traumatic stress and he began weekly sessions with a Psychologist.
[15] On 23 May 2011, Mr Chetcuti retained solicitors on the advice of Mr McDonald. On 16 June 2011, he authorised his ENT specialist to release his medical documentation concerning his injury to Coles. On 18 July 2011, he saw another ENT specialist appointed by Coles. Coles initially accepted liability for the Applicant’s workplace injury but on 23 August 2011 the Company denied liability for Mr Chetcuti’s hearing loss and post traumatic stress. “Coles told me that they accept Dr Seymour’s [the ENT specialist appointed to examine Mr Chetcuti on behalf of Coles] opinion that I am fit for pre-injury duties. Coles withdrew suitable duties and stopped paying me. Daniel Ng said words to the following effect to me: ‘There is no more work for you here because the insurer has not accepted liability.’” The Applicant then left the DC.
[16] “I was of the understanding that I was not obliged to hand in further medical certificates because Coles send me home without further work or pay. At the time Coles withdrew duties and stopped paying me (August 2011), I was doing my normal duties of picking and other storeman work. I was also driving my forklift for about 30 minutes a day. I felt positive that I was working towards returning to my pre-injury duties. I responded well to the counselling.”
[17] After 23 August 2011, Mr Chetcuti used his leave entitlements, which ran out in mid-November. He then received Centrelink benefits. Mr Chetcuti’s statement goes on to set out the details of his wages prior to his workplace injury and the financial and personal effects of Coles withdrawing his duties on 23 August 2011.
[18] On 7 November 2011, Mr Chetcuti’s solicitors registered an Application to Resolve a Dispute with the Commission arising from Coles’ denial of liability. A teleconference was then set down for 19 December 2011. 4 On 10 January 2012, at the request of Coles’ solicitors, the Commission issued a direction to Dr Lam for the production of all medical records, reports, letters of referral and specialists’ reports etc.
[19] Mr Chetcuti’s statement went on to set out the sequence of events that followed the lodging of the dispute application with the Commission. The statement relevantly says, in summary:
[20] Mr Chetcuti went on to say that Dr Lam certified him fit for pre-injury duties on 23 March 2012. 6 He is currently working as a casual storeman through an employment agency and earning approximately $690 per week. Mr Chetcuti seeks reinstatement to his former position with Coles: “I have suffered an injury whilst I was doing my work for Coles. I have not done anything wrong. I am a good worker and I like my job. I work close to home, the hours of work suit my family situation and the pay and conditions are good.”
[21] In his supporting oral evidence, Mr Chetcuti was asked: “What is your understanding now of your obligation to hand in further medical certificates?” and replied: “Well, at the time I didn't know that I had to hand the certificates in, but now I do know. It was a mistake by me not handing them in, but I wasn't told that I had to hand them.” 7 He was then asked: “So you weren't told by anyone to continue to hand in medical certificates?” and said: “No, no one told me.”8
[22] Mr Chetcuti went on to say that he did not attend the 10 February meeting because Mr Cody had advised him that he did not have to. “He basically said there's no need to come because it was all sorted out between Coles and himself. It was worked out, so I didn't have to attend.” 9 He went on to say that he would have attended the 10 February meeting if he knew that Coles had subsequently informed Mr Cody that he needed to attend.10
[23] In cross-examination, Mr Chetcuti said that after 23 August 2011 he gave all medical certificates to his solicitor but did not know if those certificates were supplied to Coles or not. 11 Mr Chetcuti went on to say that he did not receive any other medical reports from a psychologist or Specialist.12 Mr Chetcuti also said that the last medical certificate he supplied to Coles was 11 August 2011.13
[24] In further cross-examination, Mr Chetcuti:
Mr Cody
[25] Mr Cody gave sworn evidence and submitted a witness statement. 25
[26] Mr Cody is an official of the NUWN and currently represents NUWN members who work for Coles at the DC. In August 2011, he became aware that the Applicant had had his suitable duties withdrawn by Coles. Mr Cody went on to say:
[27] In cross-examination, Mr Cody said that when he advised Mr Chetcuti not to attend a meeting with Coles on 10 February 2012, he was not aware that Mr Chetcuti’s job was in jeopardy. 26 Mr Cody went on to say that Mr Chown may have told him that Mr Chetcuti was required to attend the meeting on 10 February 2012 so that Coles could receive medical certificates in relation to his fitness to return to work and to ascertain his medical status.27
Mr Chown
[28] Mr Chown gave sworn evidence and submitted two witness statements. 28
[29] Mr Chown’s primary witness statement said, in summary:
[30] Mr Chown’s second witness statement was by way of reply to that of Mr Cody. In that statement Mr Chown disputes the terms of his telephone conversation with Mr Cody.
[31] In cross-examination, Mr Chown said that the final decision to dismiss Mr Chetcuti was made by him. 29 “The reason that he was dismissed was due to not following the lawful request to attend the meetings or provide the certifications that we needed.”30 Mr Chown went on to say that the Applicant was dismissed for serious misconduct “considering that we had sent three letters asking for him to attend.”31
[32] Mr Chown went on to say that he was aware prior to 10 February 2012 that the Commission hearing concerning Mr Chetcuti “was imminent or happening” but that he did not have access to the relevant documentation. 32
[33] Mr Chown was asked: “When you followed the procedures of contacting Mr Chetcuti to require medical information, you knew that he was able to perform duties? What understanding did you have of why Mr Chetcuti was not on site?” and replied: “Okay. My understanding was that Mr Chetcuti was not on site because we had withdrawn his duties and we were unable to supply him work that would be considered safe until we understood was Mr Chetcuti safe to return to work to normal duties, and that's why we were looking for information to say can he come back to work; was it safe for him.” 33 He was further asked: “So if he would have provided you with that information that would reassure you, you would have provided him with duties irrespective of whether or not Coles denied liability?” and said: “I can (sic)34 say that we would have supplied him - but we would have had a better understanding of where he stood as to when or if he could come back to work.”35
[34] Mr Chown went on to say that the Commission hearing scheduled for 23 February 2012 played no role in the request made to Mr Chetcuti to attend a meeting on 10 February to provide medical information. 36 Mr Chown said that he did not know why a request for information had not been made to Mr Chetcuti until 29 November 2011 when Mr Chetcuti’s duties had been withdrawn on 23 August 2011. He could not recall whether he was aware that Mr Chetcuti had made an Application to Resolve a Dispute before the Commission.37
Written submissions
[35] Both parties filed written outline of submissions prior to the hearing, in accordance with directions. Those submissions were marked as Exhibits NUW 4 and Coles 4 respectively.
The NUWN
[36] In its submissions on behalf of Mr Chetcuti, the NUWN argued:
“It appears that the respondent dismissed Mr Chetcuti because:
(a) His refusal to obtain a medical opinion from his treating medical practitioner; and
(b) He was unfit to perform his pre-injury duties.”
[37] The submissions went on to argue that following 23 August 2011, the Applicant was left with only the option of seeking a remedy under workers compensation legislation. “It is noteworthy that the respondent accepted liability before the matter was decided upon by the Commissioner.”
[38] The submissions argued that the requests made by Coles to Mr Chetcuti for Mr Chetcuti to supply information in relation to his fitness were made after Commission proceedings had commenced. “On 10 January 2012, the Commission directed the applicant’s treating doctor to release medical information to Coles Logistics Pty Ltd.”
[39] “The respondent’s reliance on a separation between the insurance and the employment arm cannot be believed. There were other ways of getting the medical information than requesting it from the applicant, particularly in the circumstances.”
[40] “The applicant is certified fit for pre-injury duties. This is in line with the medical advice relied upon to deny liability in August 2011. The applicant is able to perform the inherent requirements of his pre-injury position. To deny him reinstatement would be contrary to the notion of a fair go underlying the statutory protection.”
Coles
[41] Coles’ submissions repeated the factual background of this matter and went on to deal with the issue of the three letters issued to Mr Chetcuti on 29 November 2011, 17 January 2012 and 3 February 2012:
“The uncontroverted evidence is that the Applicant received these letters and was able to respond to and comply with them but did not do so. As a consequence of the Applicant failing to comply with the letters, the Applicant’s employment contract was terminated by written notice dated 15 February 2012.”
[42] Coles submits that there was a valid reason for Mr Chetcuti’s dismissal based on his non compliance with lawful and reasonable directions to supply Coles with information as to his medical status. “A breach of a lawful and reasonable direction made by an employer is a valid reason for dismissal. This was a wilful failure by the Applicant to comply with lawful and reasonable directions.”
[43] Both parties made brief supporting oral submissions. I have paid regard to those submissions and also to the case law cited by each side.
Conclusions and Findings
[44] As the Applicant’s conduct is the reason given by the Company for the termination, I have to determine for myself whether the impugned conduct occurred and, if so, whether it amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 38:
“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
[45] In Container Terminals Australia Limited v Toby 39, a Full Bench of the Australian Industrial Relations Commission said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”40
[46] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 41 said:
“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”
[47] In Qantas Airways Ltd v Cornwall 42, the Full Court of the Federal Court said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
[48] In Edwards v Justice Giudice 43, Moore J said:
“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”
[49] Mr Chetcuti’s employment was terminated on or about 15 February 2012 at the initiative of Coles. For the termination, Coles relied upon Mr Chetcuti’s alleged failure to respond to the requests made in its letters of 29 November 2011, 17 January 2012 and 3 February 2012. In Coles’ view, that failure constituted a refusal to follow a reasonable and lawful directive from the employer thereby constituting serious misconduct. Coles paid Mr Chetcuti one week’s wages on termination.
[50] The history of this matter is peculiar and requires a close examination not only of the facts but also of the conduct and intent of the parties.
[51] It is no longer in dispute that Mr Chetcuti suffered a workplace injury on 23 March 2011 whilst in the employ of Coles and that he commenced a workers compensation claim in May 2011. It is further not in dispute that the claim was initially accepted by Coles. That claim was subsequently denied on 23 August 2011 and Mr Chetcuti was ‘sent home’ on or about that date when Coles withdrew his duties. From on or about 23 August 2011 until mid November of that year, Mr Chetcuti accessed accrued leave entitlements and, according to him, some leave without pay, until his entitlements were exhausted in mid November. He then applied for Centrelink benefits.
[52] The last medical certificate supplied by him to Coles was on or about 11 August 2011. It was Mr Chetcuti’s evidence that he did not believe that he needed to supply any further medical certificates to Coles as Coles had denied liability for his injury. However, it was also his evidence that he continued to update Mr Ng concerning his situation.
[53] On or about 7 November 2011, Mr Chetcuti’s solicitors lodged a dispute with the Commission. The Commission acknowledged receipt of the dispute on 25 November 2011 44 and scheduled a telephone conference for 19 December 2011. The written acknowledgement from the Commission notes: “The worker and their legal representative (if represented) must personally attend all Commission proceedings, including participating in the teleconference. Insurers and/or their representatives must also attend. Employers intending to participate in the teleconference should contact their insurer.” The document lists the Insurer for Coles as “Coles Group Limited”. The letter from the Commission therefore only just preceded the issuing of Coles’ first letter to Mr Chetcuti on 29 November 2011.
[54] There is nothing before me about the teleconference of 19 December 2011 and I presume that it went ahead as scheduled. In the end however, whether it did or not is not a determinative factor in my decision making.
[55] On 10 January 2012, the Commission issued a Direction for Production to Dr Lam requiring the following:
“All medical records, reports, letters of referral, specialists’ reports, speech therapists’ reports, occupational therapists’ reports, social workers’ reports, all raports and images arising from or otherwise relating to any diagnostic test whatsoever, including but not limited to x-ray, CT and/or MRI images taken for any purpose, including but not limited to investigative, comparative and secondary tests, clinical notes, correspondence and treatment cards held at the practice relating to Darren Chetcuti, Date of Birth: [xxx]; including any such documents which relate to conditions not attributed by the patient to this claim and including any such documents which relate to conditions not attributed by the patient to this claim and including any such documents which pre-dated 23 March 2011.” 45
[56] The above Direction lists Coles as a self-insurer. I am unaware if Dr Lam complied with the Direction but, as there is nothing to the contrary before me, I presume he did. If he did not, any failure to do so cannot be laid at Mr Chetcuti’s door.
[57] On 17 January 2012, Mr Ng wrote separately to Dr Lam 46 asking him to “review the Treating Practitioner Work Capacity Checklist with Darren when he next visits you in addition to answering the questions listed below. 1. What is the nature and prognosis of Darren’s injury? 2. At present can Darren currently carry out all of the inherent requirements of his pre-injury position? 3. If Darren is currently not able to perform the inherent requirements of his pre-injury position: a. What productive duties can Darren safely undertake? b. What is the extent of Darren’s current medical restrictions? To assist with answering this question please refer to the Treating Practitioner Work Capacity Checklist below; c. When, if at all, will Darren be able to safely undertake all of the inherent requirements of his pre-injury position? and d. Are there any adjustments or measures, which could be taken to enable Darren to safely carry out all of the inherent requirements of his pre-injury position? If so, what are these adjustments or measures?”
[58] Mr Ng’s letter goes on to say:
“Darren has completed the attached consent to the disclosure of his medical information. Please retain and refer to this consent should we request clarification or additional information following receipt of your assessment.”
[59] Coles’ letter to Mr Chetcuti dated 29 November 2011 47 made the following request, inter alia:
“It may be necessary for us to contact your treating practitioner directly to obtain additional information, or seek clarification of the information provided. For this purpose, we request that you complete and sign two copies of the attached Consent to Disclose Medical Information form. One will be retained for our records and the other should be provided to your treating practitioner.
The Company will meet the reasonable costs associated with producing the medical report. Your treating practitioner should send the invoice for the report to me directly and, provided that the cost involved is reasonable, I will arrange for payment of the invoice.”
[60] It would therefore appear that Mr Chetcuti complied with Coles’ request, as Coles’ letter to Dr Lam indicates that it was in possession of the consent forms it requested from him. It was Mr Chown’s witness statement that “I am advised that Daniel Ng, Day Shift Manager at the Smeaton Site was contacted by Darren Chetcuti and informed him that he had consulted the NUW and they advised him not to provide the medical information requested.” It was Mr Chetcuti’s witness statement that he showed the letter of 29 November 2011 to Dr Lam and understood that “Dr Lam would contact Coles to make the appropriate arrangements.” In proceedings, I did not have the benefit of evidence from Mr Ng, only the evidence of Mr Chown as to an alleged conversation between him and Mr Ng. I note that Coles’ request to Dr Lam was made some seven days after the Direction was issued by the Commission at the request of Coles’ solicitors. That timeframe places Mr Chetcuti’s alleged conversation with Mr Ng in context.
[61] Between 23 August 2011 and 29 November 2011, Coles had shown no official interest in Mr Chetcuti’s health situation. It granted his requests to access accrued leave and when that leave was exhausted in mid November, did nothing until the letter of 29 November. On balance, it would appear that the filing of a dispute with the Commission by Mr Chetcuti’s solicitors on 7 November galvanized Coles into action.
[62] Mr Chetcuti’s compensation claim was in the hands of his solicitors from around May 2011. He continued to supply medical certificates to Coles until Coles unilaterally withdrew his duties on 23 August 2011. Mr Chetcuti then ceased personally supplying medical information to Coles as he apparently believed that his claim was being properly handled by his solicitors and the NUWN. That assumption would appear to be quite reasonable in the circumstances and I accept Mr Chetcuti’s evidence as to his interactions with his solicitors, Mr MacDonald, Mr Cody, Mr Ng and Dr Lam and specifically that he provided his solicitors with copies of his medical certificates on an ongoing basis.
[63] He informally continued to keep Mr Ng informed about his situation. In the meantime, Mr Chetcuti supplied his continuing medical certificates to his solicitors. He did however action Coles’ request in its 29 November 2011 letter to sign consent forms to allow Coles to access his medical information from Dr Lam. Mr Chetcuti also authorised release of medical information by way of the consent section of WorkCover NSW Medical Certificates issued by Dr Lam. Again, it was reasonable in my view for Mr Chetcuti to rely on Dr Lam to supply the information he had authorised the release of. Dr Lam was also directed by the Commission to supply relevant information and was written to directly by Coles.
[64] From on or about 7 November 2011, Mr Chetcuti’s solicitors were pursuing his case in the Commission. The Commission became actively involved from late November and the dispute was finalised by consent in Mr Chetcuti’s favour on 24 February 2012, following conciliation before a Commission Arbitrator on 23 February. In the meantime, Mr Chetcuti’s employment was terminated by Coles on 15 February 2012. That timeline is most curious. Coles, per the evidence of Mr Chown, argues that the requests to Mr Chetcuti from Coles were a separate issue to Mr Chetcuti’s workers compensation claim and that the insurer did not share information with Coles.
[65] The alleged relationship (or non-relationship) between WesSafe and Coles is a further curious factor in this case. There is no mention of WesSafe in any of the Commission documentation before me, however it was mentioned at various times in evidence. A letter from Coles solicitors to WesSafe dated 13 June 2012 was entered into evidence. 48 In that letter, Coles asked WesSafe whether it had received any medical information about Mr Chetcuti in the period 23 August 2011 until 15 February 2012. WesSafe replied that it had not. Why Coles waited until 13 June 2012 to ascertain this from WesSafe is somewhat remarkable in itself.
[66] Coles had a right to contact Mr Chetcuti about his medical condition on 29 November 2011. From what is before me, it appears that Mr Chetcuti acted on that letter by supplying Coles with consent forms to allow it to obtain information from Dr Lam. From that point, the matter was between Coles and Dr Lam. I do not see how it is possible for Coles and WesSafe to claim that they knew nothing of Mr Chetcuti’s medical condition between the period 23 August 2011 to 15 February 2012. It is clear to me that the Consent Determination from the Commission whereby Coles reinstated Mr Chetcuti’s entitlements must have been based on more information than Coles claims to have been in possession of.
[67] From the totality of the above, I find that Mr Chetcuti’s evidence was reliable and truthful. I further find that the evidence of Mr Cody was true in every material facet and that Mr Cody’s evidence is to be preferred to that of Mr Chown where that evidence is in conflict. I particularly accept Mr Cody’s evidence as to the events and conversations leading up to Mr Chetcuti’s non-attendance at the proposed 10 February 2012 meeting with Coles and as to Mr Cody’s role in Mr Chetcuti deciding not to meet with Coles on 10 February 2012. I also specifically accept Mr Cody’s evidence that he informed Mr Chown prior to 10 February 2012 that Mr Chetcuti’s claim had been set down for conciliation on 23 February 2012. I hasten to add that I do not believe Mr Chown was untruthful in his evidence but rather the recollections of Mr Cody are more likely to be accurate.
[68] I have not been aided in my deliberations by the absence of evidence from Mr Ng. Mr Ng was a key player in this matter. In the absence of Mr Ng’s evidence, I accept the accuracy and truthfulness of Mr Chetcuti and Mr Cody as to their interactions with Mr Ng.
[69] I have further not been aided in my deliberations by the absence of any evidence or statements from either Slater & Gordon Solicitors whom Mr Chetcuti instructed in relation to his workers compensation claim or from Dr Lam. Such evidence or statements would have hopefully thrown some light into the black hole of what happened in any dealings between the solicitors and Dr Lam with Coles and/or WesSafe after 23 August 2011.
[70] All in all, I find that Mr Chetcuti was not guilty of any form of misconduct relating to the matters set out in the termination of employment letter. Based on my reasoning as set out above, I further find that there was not a valid reason for the termination of Mr Chetcuti’s employment.
[71] I now turn to the question whether the dismissal of Mr Chetcuti was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[72] In Byrne v Australian Airlines 49, McHugh and Gummow JJ of the High Court said:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[73] The question of valid reason is dealt with above. It is apparent from the materials and evidence that Mr Chetcuti was notified of the reason(s) for the termination of his employment. It is further clear on the materials and evidence that he was not given an opportunity to respond. No disciplinary hearing was held which would have allowed Mr Chetcuti to have a support person present. The question of unsatisfactory performance does not arise in these proceedings. The size of the employer’s enterprise is a factor which is likely to have impacted on the procedures followed in effecting Mr Chetcuti’s dismissal. I have concluded that Coles is a large operation with access to internal advice on industrial relations matters plus access to outside legal advice. This would have impacted significantly on the procedures followed by the Company in effecting the dismissal of Mr Chetcuti. All in all, I am satisfied that the termination of Mr Chetcuti’s employment was procedurally unfair and I so find.
[74] Other matters which I have considered relevant in the making of this decision are Mr Chetcuti’s excellent employment record, his age and his employment prospects in obtaining an equivalent job with equivalent pay to that which he held at Coles.
[75] All in all, I have concluded and find that the termination of Mr Chetcuti’s employment by Coles was harsh, unjust and unreasonable.
[76] Section 390 of the Act provides:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[77] In all the circumstances of this case, reinstatement is in my view both practicable and desirable. Mr Chetcuti seeks reinstatement and I am satisfied and find that reinstatement is an appropriate remedy. It appears that Mr Chetcuti is now restored to health and is willing and capable of resuming his duties at the DC. Further, the applicant has not exhibited any rancour towards Coles but rather, an understandable hurt and lack of comprehension concerning the manner in which Coles treated him. I believe that the employee/employer relationship can be re-established provided that there is goodwill on both sides.
[78] Section 391 of the Act provides:
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[79] In summary, I find that there was no valid reason for the termination of Mr Chetcuti’s employment and I further find that his dismissal was harsh, unjust and unreasonable. I find that he should be reinstated to his former position at the DC with full continuity of employment and period of continuous service for all purposes from the date of his termination of employment until the date of his reinstatement.
[80] The amount comprising compensation for lost wages shall have deducted from it the amount of any remuneration earned by Mr Chetcuti from employment or other work during the period between his dismissal and the making of my order for reinstatement and any amount of other remuneration earned by him during the period between the making of my order for reinstatement and the actual reinstatement. It shall also have deducted payments made to Mr Chetcuti for leave taken between 23 August 2011 and the time that leave was exhausted in mid November 2011 plus the one week’s notice provided to him by Coles on termination.
[81] This leaves the question of workers compensation payments made to Mr Chetcuti but I assume that the balancing of such payments against the total for lost wages since 23 August 2011 should not be a difficulty for Coles as it is either a self-insurer in its own right or is a self-insurer by way of WesSafe. The question of the possible repayment of Centrelink benefits is a matter to be dealt with by Mr Chetcuti.
[82] The total amount to be paid to Mr Chetcuti is to be subject to the appropriate taxation deduction.
[83] In accordance with s.381 (2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.
[84] An order reflecting this decision is in PR527484.
COMMISSIONER
Appearances:
S Mueller for Darren Chetcuti.
T MacDonald for Coles Group Supply Chain Pty Ltd.
Hearing details:
2012.
Sydney:
5 July.
1 See attachment D of Exhibit Coles 1.
2 See attachment DC-5 of Exhibit NUW 1.
3 Exhibit NUW 1.
4 See attachment DC-2 of Exhibit NUW 1.
5 See attachment DC-4 of Exhibit NUW 1.
6 See attachment DC-6 of Exhibit NUW 1.
7 Transcript PN90.
8 Transcript PN91.
9 Transcript PN101.
10 Transcript PNs99-103.
11 Transcript PNs163-166.
12 Transcript PNs169-174.
13 Transcript PN175.
14 Transcript PNs191-195.
15 Transcript PNs199-202.
16 Transcript PN208.
17 Transcript PN209.
18 Transcript PN215.
19 Transcript PN217.
20 Transcript PNs232-234.
21 Transcript PNs238-245.
22 Transcript PN248.
23 Transcript PN254.
24 Transcript PNs264-266.
25 Exhibit NUW 3.
26 Transcript PNs442-446.
27 Transcript PN454 and following.
28 Exhibits Coles 1 and Coles 2.
29 Transcript PNs536-538.
30 Transcript PN541.
31 Transcript PN547.
32 Transcript PNs650-651.
33 Transcript PN754.
34 It is my recollection that the witness actually said ‘can’t’ rather than ‘can’, and this is supported by subsequent paragraphs of transcript.
35 Transcript PN755.
36 Transcript PN767.
37 Transcript PNs768-776.
38 Print S4213, 17 March 2000.
39 Print S8434, 24 July 2000.
40 Ibid at para 15.
41 (1995) 62 IR 371 at 373.
42 [1998] FCA 865.
43 [1999] FCA 1836.
44 See attachment DC-2 of Exhibit NUW 1.
45 This document was filed with the Tribunal on 21 May 2012.
46 See attachment C of Coles 1.
47 See attachment B of Coles 1.
48 See Exhibit Coles 3.
49 (1995) 185 CLR 410.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR527483>