Allan Bellchambers v G H Michell & Sons (Aust) Pty Ltd [1995] IRCA 401

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - claim of UNLAWFUL TERMINATION - whether VALID REASON - REINSTATEMENT INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE ALLAN BELLCHAMBERS -v- G H MICHELL & SONS (AUST) PTY LTD No. SI1112/95 JUDICIAL REGISTRAR: L FARRELL PLACE: ADELAIDE DATE: 24 AUGUST 1995 INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SI1112 of 1995 B E T W E E N: ALLAN BELLCHAMBERS Applicant - and - G H MICHELL & SONS (AUST) PTY q LTD Respondent MINUTES OF ORDER BEFORE : JUDICIAL REGISTRAR FARRELL PLACE : ADELAIDE DATE : 24 AUGUST 1995

THE COURT ORDERS THAT: 1. The Respondent reinstate Mr Bellchambers to his former position on or before 14 September 1995. 2. The period between 13 April 1995 and the date of reinstatement be treated as continuous employment for all purposes. 3. The Respondent pay to Mr Bellchambers the remuneration he has lost between 13 April 1995 and the date of reinstatement. 4. Liberty to either party to apply in respect of any consequential orders sought. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY )

No. SI1112 of 1995

B E T W E E N: ALLAN BELLCHAMBERS Applicant - and - G H MICHELL & SONS (AUST) PTY LTD Respondent

BEFORE : JUDICIAL REGISTRAR FARRELL PLACE : ADELAIDE DATE : 24 AUGUST 1995 REASONS FOR JUDGMENT This is an Application pursuant to Section 170EA. The Applicant claims that his employment has been terminated unlawfully and he seeks reinstatement. The Applicant was employed by the Respondent at its Salisbury plant for 12 years. The Applicant was employed as a machine cleaner. He worked in a team of 3 cleaners under supervision from an assistant foreman and a foreman. The Respondent is a large company engaged in processing wool. It has approximately 150 employees at the Salisbury plant. As well it has other operations in South Australia with a total of approximately 500 employees. The Applicant injured his right knee in 1991 whilst playing football. From the evidence before me that injury consisted of a tear to the anterior cruciate ligament. He continued in his normal job and usual lifestyle although he gave up playing football after that injury. In late 1994 he experienced some twinges in his knee. In January 1995 his knee "went" while playing social tennis. Early medical advice suggested that the Applicant may require a knee reconstruction and would require five months off work. At that stage the Applicant sought the assistance of Ms Tracey Zilm, Personnel Officer, she arranged for him to see Dr Lipert, an orthopaedic surgeon who often sees workers from the Respondent's plant. The Applicant wanted to return to work on light duties and the Respondent wanted to ensure that he was capable of performing any duties it had available. A dispute followed concerning the Applicant providing a medical authority to the Respondent. The Applicant objected to providing the authority firstly, because he did not want a number of other employees of the Respondent to know details of his medical condition and secondly, he objected to the broad nature of the authority allowing the Respondent to obtain any medical details about him. The Respondent did not permit the Applicant to go back to work on light duties. Instead, the Applicant used up his leave entitlements. The Applicant underwent surgery at the hand of Dr K Angel on 8 March 1995. The surgery consisted of removal of a piece of torn cartilage. Dr Angel apparently decided that it was unnecessary to do anything further. He provided the Applicant with a medical certificate stating that the Applicant was fit to perform normal duties as from 20 March 1995. The Applicant presented for work on that day, but the Respondent wanted him to see Dr Lipert. The Applicant was seen by Dr Lipert on 12 April 1995. Dr Lipert's report states:- "it is my opinion that Mr Bellchambers is able to resume his normal duties without significant risk of aggravation". He also states:- "I cannot exclude the possibility that he may aggravate his right knee in the course of his work, necessitating further surgery". In his evidence Dr Lipert stated that in fact it was not possible for the Applicant to aggravate his injury. Where he has used the word "aggravate" or "aggravation" he meant that the Applicant could sustain some other injury if his knee "gave way". Officers of the Respondent, together with Mr Bonig, of counsel held a meeting to discuss what to do regarding the Applicant. Following that meeting the Respondent wrote to the Applicant in the following terms on 13 April 1995:- "I refer to our previous discussions and correspondence regarding your non-work related injury and your fitness for work. As you are aware I have received a report from Mr Lipert dated 12 April 1995 and have now received a report from Dr Angel dated 11 April 1995, a copy of which is enclosed. Mr Lipert states that he: "Cannot exclude the possibility that he may aggravate his right knee in he course of his work" Dr Angel implies that there is the possibility that you may aggravate your right knee. He also states that you need "intense rehabilitation to try and avoid an anterior cruciate ligament reconstruction". In the light of these opinions, we believe that we would be exposing you to a risk of further injury if you were returned to your normal duties. This would be in breach of our obligations under the Occupational Health Safety and Welfare Act. As such we do not believe that we can continue to employ you and therefore we hereby give you 4 weeks notice of our intention to treat your contract of employment as frustrated. We do not require you to attend for work during that period and we will pay 4 weeks in lieu of notice. As included with this payment are three public holidays in accordance with Clause 25(j) of the Textile Industrial Award. We herewith enclose your entitlements of $4,065.00. Yours sincerely Tracey Zilm Personnel Officer Encs" The Respondent had written guidelines regarding non work injuries known as "Production Administration Procedure". A copy of the guidelines were provided with a letter to the Applicant dated 17 February 1995. The relevant part is as follows. "Michell is not legally required to provide a worker with duties where the worker suffers an incapacity as a result of a non-work related cause. However, this policy, where possible, aims to return such employees to light duties under the advice of the Company Medical Doctor and authorisation from the Departmental Manager..... Should the employee's condition be such that no matter what duties are available the risk of aggravation or for other reasons as listed above (availability of suitable duties, expected length of time of the incapacity, the nature of the injury and the likelihood of aggravation), then the employee will be required to stay away from work and use his/her sick leave/annual leave/long service leave entitlement". It was clear on the evidence of the Respondent witnesses that in deciding to write to the Applicant on 13 April 1995 it had taken into account other factors relating to the Applicant's arguing over the provision of the medical authority. The Respondent argued that it did not terminate the Applicant's employment that the contract was frustrated as a result of his non-work injury. I do not think that argument can be made out on the facts in this case. Clear medical opinions existed that the Applicant was able to perform his normal duties and the Applicant was ready and willing to return to work. The Respondent has chosen to rely on the possibility that the Applicant could suffer an "aggravation". In my view the letter of 13 April 1995 terminated the Applicant's employment. In my view the decision of the Respondent to terminate the Applicant was not for a valid reason having regard to the medical evidence which had been obtained and its own policy. I therefore find that the termination of the Applicant's employment was unlawful. Counsel for the Applicant argued that the termination of the Applicant's entitlements was harsh unjust and unreasonable. It is unnecessary for me to deal with that argument. I turn now to remedy. The Applicant seeks reinstatement. The Respondent argues that reinstatement is impracticable. The Respondent led evidence from five employees: Mr Eastway Mr McDonald, Foreman Mr Case, Assistant Foreman Mr Edevine, The Mill Manager and Miss Zilm, Personnel Manager There was no evidence to suggest that the Applicant was unable to work along side the other cleaners or any other production employees. There was no evidence that Mr Case would have any difficulty working with or supervising the Applicant. It was clear on the evidence of Mr McDonald and Mr Eastway that they both disliked the Applicant and did not want him to return to work. Miss Zilm gave evidence that trust had broken down. In considering the factors set out in Nicolson -V- Heaven and Eath Gallery Pty Ltd [1994] IRCR199 on balance I am unconvinced that reinstatement is impracticable. I will therefore order that the Applicant be reinstated to his former position. I certify that this and the preceding 4 pages are a true copy of the reasons for my judgment. DATE OF HEARING : 31 July, 1 August and 9 August 1995 FOR THE APPLICANT : Paul Heywood-Smith FOR THE RESPONDENT : Ralph Bonig