PR902746
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision [Print T1861] and order [Print T1862]
of Cribb C on 12 October 2000
Grant Erskine
and
Chalmers Industries Pty Ltd
(C No. 38857 of 2000)
s.170CE application for relief in respect of termination of employment
Grant Erskine
and
Chalmers Industries Pty Ltd
(U No. 33189 of 1999)
SENIOR DEPUTY PRESIDENT WILLIAMS
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER BLAIR MELBOURNE, 30 MARCH 2001
DECISION
[1] Grant Erskine (the appellant) commenced employment with Chalmers Industries Pty Ltd (the appellant) as a permanent employee on 20 May 1996. He had previously been employed by the respondent as a casual for a short period between July and September 1991.
[2] In March 1998, he suffered a back injury at work when he fell from the back of a truck. A year later, in March 1999, he was diagnosed as suffering from a mild form of epilepsy. After a period of both paid and unpaid leave, he obtained a qualified medical clearance to return to work. This took the form of a certificate from his treating neurologist, dated 2 August 1999. In so far as is relevant, the certificate provided as follows:
This is to confirm that [the appellant] is one of my patients and attends my Werribee Mercy Hospital Consulting Rooms. He last attended my practice on 30 July 1999. At that stage I informed him that on medical grounds I considered him fit to drive a motor car, but not a truck/commercial vehicle. On medical grounds I would certainly regard him as fit to carry out duties at work, short of driving a truck.
[3] The appellant then attempted to return to work with the respondent. Such a return appears to have been resisted on the basis of the appellant's incapacity to drive trucks. In any event, on 11 August 1999, his employment was terminated by the respondent by way of a letter, the relevant parts of which stated:
Since 26th May, 1999 you have been absent from your employment with Chalmers on unpaid leave. You have provided medical certificates indicating your unfitness for work as a truck driver. Based on the opinion provided by your doctor, Dr Matkovic dated 2nd August, 1999, it appears that you will be unfit to perform your duties as a truck driver at Chalmers into the foreseeable future, and additionally you are not fit to carry out the inherent requirements of this position.
Consequently I regret to advise you that your employment with Chalmers Industries Pty Ltd has terminated.
[4] Upon termination, the appellant was paid, amongst other things, three weeks' wages in lieu of notice.
[5] On 30 August 1999, the appellant lodged in the Registry an application under s.170CE of the Workplace Relations Act 1996 (the WR Act) for relief in respect to the termination of his employment. The matter was not resolved by conciliation and proceeded to arbitration before Commissioner Cribb.
[6] On 12 October 2000, the Commissioner issued a decision1 in relation to that application in which she made the following findings -
[7] On the same date, the Commissioner issued an order2 giving effect to her decision.
[8] On 31 October 2000, the appellant lodged a notice of appeal against the Commissioner's decision and order. In accordance with the Commission's directions, the parties filed and served written submissions. At the hearing on 14 February 2001, the parties briefly addressed the Commission in relation to those submissions.
[9] The appellant contends that the Commissioner made a number of errors of law and mistakes of fact in determining that the termination was harsh, unjust or unreasonable, in refusing to make an order for reinstatement and in calculating the amount ordered in lieu of reinstatement. In summary, it is said:
[10] It may seem unusual that, given the Commissioner's eventual finding that the termination of the appellant's employment was harsh, unjust or unreasonable, the appellant is challenging the finding that there was a valid reason for the termination. However, the basis of the Commissioner's finding in respect to the issue of valid reason was directly pertinent to her determination that reinstatement was not an appropriate remedy. Central to the Commissioner's conclusion that the respondent had a valid reason for the termination of the appellant's employment was a finding that the majority of the appellant's work was driving a truck and that, as a result, he was unable to fulfil the inherent requirements of his job [para 114]. For the same reason, namely that the appellant did not have a medical clearance to drive trucks, the Commissioner considered that reinstatement was not an appropriate remedy [para 131]. It was submitted, therefore, that, if the Commissioner had erred in reaching her conclusion as to the existence of a valid reason for termination, she had also erred in reaching her conclusion that reinstatement was not an appropriate remedy.
[11] As to the nature of the appellant's employment, the only direct evidence before the Commissioner with respect to the original terms of engagement and the duties that the appellant performed was the evidence of the appellant himself. The appellant's evidence was that he was originally employed as a driver, a labourer and a yardman. In respect to his employment as a driver, he was employed not merely to drive trucks but also to drive forklifts and heavy lifting vehicles. Further, his evidence was that, during the course of his employment, he continued to perform all these duties.
[12] In response to the appellant's evidence, the respondent called its General Manager, Thomas Ingledew. Mr Ingledew, however, did not commence his employment with the respondent until April 1999 and was not privy to the terms upon which the appellant was engaged. Nor did he have any day to day knowledge of the duties which the appellant actually performed. His evidence, in relation to these aspects of the matter, was based upon information he had received from other employees of the respondent.
[13] No evidence was called by the respondent from either the person who had actually engaged the appellant or any person who had direct knowledge of the duties actually performed by the appellant. It is apparent that the respondent was in a position to call such persons but, in the preparation of its case before the Commissioner, had not taken any steps to do so. A request was made by the respondent on the second and final day of hearing for the issue of a summons to witness directed to the person who had actually engaged the appellant. That request was refused by the Commissioner on the grounds that such a request should have been made at the point of compliance with the directions issued in respect to the proceedings at first instance. In the circumstances, we agree with the Commissioner's approach in this respect. It should have been clear to the respondent that the nature of the appellant's employment and the details of the duties he performed were relevant matters and likely to be the subject of dispute. It was incumbent upon the respondent to prepare its case in a full and proper fashion and, at least, seek to have its evidentiary material available at the hearing. It failed to do so.
[14] The weight to be given to the conflicting evidence of the parties was clearly a matter that the Commissioner had to determine. The applicant's evidence was the only first hand evidence. We have considered the transcript of the evidence in the proceedings at first instance and, contrary to the Commissioner's statement in paragraph [100] of her decision, we cannot find any statement by the appellant that "the majority of his work was truck driving". True it is that the appellant agreed under cross examination that "a lot of the work was driving a truck".3 But, at no stage, despite quite vigorous questioning on this aspect of the matter, does the appellant make any greater concession. A consideration of the appellant's evidence does not, of its own, support a conclusion that, as the Commissioner stated at paragraph [104] of her decision, truck driving "constituted the major part of [the appellant's] work".
[15] The respondent failed to call witnesses apparently available to it to contradict the direct evidence of the appellant. Instead, it relied on the evidence of Mr Ingledew. In the circumstances, in so far as his evidence conflicted with that of the appellant, the latter should have been given greater weight. In our view, the Commissioner's finding that "the majority of [the appellant's] work involved driving trucks" was not a finding reasonably open to her on the evidence.
[16] The Commissioner used this finding, i.e. that the majority of the appellant's work was truck driving, to justify a conclusion that the appellant "was unable to fulfil the inherent requirements of his job" [para [114]]. As the premise upon which this conclusion was based was not, in our view, reasonably open to the Commissioner, the conclusion itself was not reasonably open to her. Further, we can find no other firm basis in the evidence to justify a conclusion that truck driving was an inherent requirement of the appellant's job. It was a function (indeed a significant function) that he performed in the course of his duties. The evidence does not, however, disclose that it was an essential feature of his job.
[17] It is for the party seeking to demonstrate a valid reason for a termination of employment to satisfy the Commission as to the existence of such a reason. It is generally accepted that a valid reason for termination of employment is one that is "sound, defensible or well founded".4 In determining whether or not a termination of employment is for a valid reason, consideration must be given to the "entire relevant factual matrix".5 In this case, the Commissioner, having, wrongly in our view, concluded that truck driving was an inherent requirement of the appellant's job, failed to properly address other factors that were relevant to a determination of whether or not the termination was capricious.
[18] We recognise that the Commissioner did address the availability of alternatives to termination. She did so, however, in the context of a consideration of whether or not the appellant had an opportunity to respond to the reason for the termination. She did not do so in the context of determining whether or not there was a valid reason for the termination. In addressing this question, she accepted Mr Ingledew's evidence "that a genuine attempt was made to find alternative full time work" for the appellant and that this was done "in the light of [the appellant's] indication to the company that he was not interested in casual work" [para [122]].
[19] If we were to have regard to this evidence in the context of determining whether or not there was a valid reason for the termination, it must again be recognised that Mr Ingledew was not a person with direct knowledge of the facts. In relation to this aspect of his evidence, he relied on advice he received from other employees. None of those other employees was called by the respondent. The only direct evidence was that of the appellant. That evidence supports a conclusion that there was never any discussion between the appellant and any of the respondent's management employees about the availability of alternative work or as to the details of other duties that the appellant was able to perform. Neither that or any other evidence supports a conclusion that the appellant was not prepared to undertake anything less than full time work in preference to dismissal.
[20] The discretion conferred by s.170CH(3) is broad in nature and, in each particular case, the exercise of that discretion is a matter of judgement. The exercise of that discretion is one, however, that must be based on the evidence and material before the Commission.6 Where the conclusion reached at first instance is not reasonably open on that evidence and material, there has been a demonstrable error in the exercise of that discretion.
[21] The Commissioner's finding that the appellant was unable to drive trucks for medical reasons was the sole justification for finding the existence of a valid reason for the termination of the appellant's employment. As we stated earlier that finding of the Commissioner was also solely determinative of her conclusion that reinstatement was not an appropriate remedy. For the reasons set out above, we are of the view that the Commissioner was in error in reaching a conclusion that a capacity to drive trucks was an inherent requirement of the appellant's job. It follows, therefore, that merely an incapacity to drive trucks without proper consideration being given to the availability of alternative employment could not render reinstatement inappropriate. In our view, the Commissioner's finding that "as [the appellant] does not have a medical clearance to drive trucks" reinstatement was not an appropriate remedy was not a finding reasonably open to her on the evidence.
[22] For the above reasons, we consider that the Commissioner's finding that reinstatement was not an appropriate remedy constitutes an error for the purposes of s.170JF(2) of the WR Act. We, therefore, grant leave to appeal and quash the order made by the Commissioner.
[23] We intend to exercise the power conferred by s.45(7)(b) and make an order dealing with this aspect of the subject-matter of the Commissioner's decision. It is appropriate to do so on the basis of the material before the Commissioner. Each party has had an adequate opportunity to address the issue of remedy and to call all evidence relevant to its case in the proceedings before the Commissioner. We do not see any compelling ground to reopen the evidence at this appeal stage.
[24] It is now well established that, in determining the question of a remedy, the Commission must first consider reinstatement.7 There is no evidence to suggest that any order for reinstatement would affect the viability of the respondent's undertaking, establishment or service. The appellant was employed for more than three years on a permanent basis, a period which was not so brief as to militate against an order for reinstatement being made. The appellant's lost remuneration and apparent attempts to mitigate any loss suffered as a result of the termination both support an order for reinstatement.
[25] The appellant's state of health is a factor which clearly may be taken into account for the purpose of determining the appropriate remedy. However, as we have already stated, the fact that he does not have a medical clearance to drive trucks is not, in the circumstances, a compelling factor. Having considered all the evidence before the Commissioner, we have formed the view reinstatement is the appropriate remedy. We will, therefore, make an appropriate order for reinstatement. As we are of the view that the evidence does not justify a finding that truck driving was an inherent requirement of the appellant's former position with the respondent, the order will be made in the terms of s.170CH(3) of the WR Act.
[26] The order we make will also include orders for the maintenance of continuity of the appellant's employment and for compensation for remuneration lost because of the termination. In making such orders, we have again considered the factors referred to in s.170CH(2). The evidence does not suggest that any such orders would affect the viability of the respondent's undertaking, establishment or service. The appellant's length of service does not militate against such orders being made. The appellant's lost remuneration and apparent attempts to mitigate any loss suffered as a result of the termination both support the making of such orders. There are no other matters that we consider are relevant to the making of such orders.
[27] An order giving effect to this decision is being issued at the same time as this decision.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Appearances:
K. Parkinson for Grant Erskine.
P. Hull for Chalmers Industries Pty Ltd.
Hearing details:
2001.
Melbourne:
February 14.
3 Transcript, 7 April 2000, p.27, lines 1-3.
4 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, at 373.
5 Allied Express Transport Pty Ltd (1995) 81 IR 410, at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102, at 109.
6 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, at 19.
7 See Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, at 16; Newtronics Pty Ltd v Salenga, Print R4305, 29 April 1999; Wark v Melbourne City Toyota, (1999) 89 IR 132, at 135; Ellawala v Australian Postal Corporation, Print S5109, 17 April 2000 (Ross VP, Williams SDP and Gay C).
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