Maria Keller amd Australian Postal Corporation [1994] IRCA 53

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI 1137 of 1994 B E T W E E N: MARIA KELLER AND: AUSTRALIAN POSTAL CORPORATION COURT: J.A. RYAN, Judicial Registrar PLACE:MELBOURNE DATE: 14 SEPTEMBER 1994 EX TEMPORE JUDGMENT

THE J.REGISTRAR: Maria Keller has applied for remedy for purported termination of employment. The application was filed on 21 July 1994. She seeks: 1) reinstatement; 2) compensation; 3) a declaration that termination of employment by the respondent was unlawful; 4) an order for the payment of what is described as "the salary from 5 May 1993 as well as some earlier unpaid salaries"; 5) an order for what are described as "superannuation benefits for total and permanent disability". The applicant claims that her employment commenced on 16 March 1990 and either terminated on 5 May 1993 or will or has terminated on or from a later date and by affidavit and in this court today, the applicant now claims that her employment terminated effectively from 1 July 1994. The applicant seems to allege that her termination, or purported termination, was unlawful because it was a result of a host of factors including: 1) temporary absence due to illness caused by a work related injury; 2) a complaint made against the employer; 3) reasons related to race, age, physical and psychological disability, national extraction and social origin; 4) other reasons unrelated to her capacity to do the job, her performance, her conduct or the operational requirements of the Australian Postal Commission. On 12 August, Clifford Morris Luke Michael, a litigation manager, Australian Postal Corporation, completed a very detailed affidavit in response. It is not necessary to canvass the detail of that affidavit or a supplementary affidavit of 25 August other than to say that the respondent rejects most, if not all of the claims and assertions made by the applicant and maintains that: 1) the applicant is still employed with the respondent; 2) the respondent has not sought the applicant's resignation at any time, has not interfered with the performance of the applicant's duties, has not prevented the applicant from working at any time and has not threatened the applicant with termination of employment. The respondent has moved to have the proceeding taken by the applicant dismissed or struck out for want of jurisdiction on the ground that there has been no termination of employment and on the alternative ground that if there was termination, which is denied, it would have to be held to be a termination prior to 30 March 1994 and outside the jurisdiction of part III of division VIA of the Industrial Relations Act 1988. I have considered all the affidavit material from both the applicant and the respondent and the submissions put to me today. My findings are that the situation outlined in the respondent's affidavit of 12 August is by an large an accurate summation of an unfortunate set of facts and circumstances. The applicant commenced employment with the respondent as a postal services officer, apparently on 16 March 1990 and it would appear to me, in terms of employment, remains employed in the sense that her employment has not been terminated actually or constructively. On 18 June 1992, the applicant was certified by the general practitioner, Dr Tzefronis, as totally unfit for work for a period of five days for aggravation of soft tissue injury right hand and forearm and emotional stress. The applicant lodged a claim for compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 and did so on 7 July 1992 indicating that she had on 17 June 1992 suffered soft tissue injury to her right hand, wrist and forearm which was said to be the aggravation of a pre-existing condition and there was also a reference to emotional stress. The applicant remained absent from work for two weeks until 30 June 1992 when apparently rehabilitation was commenced. The applicant returned to duties for one week only and from 6 July 1992 she was again off work. When referred for rehabilitation, on 27 July 1992, the applicant appears to have indicated that she did not wish to have an assessment for rehabilitation until such time as she had spoken to her union and eventually a rehabilitation assessment was carried out on 4 August 1992. On 9 October 1992, a report was prepared by the rehabilitation provider which indicated that the applicant had been medically assessed as unfit to return to work at that stage. The applicant was cleared to return to work, apparently three days per week, two hours per day on office work only from 18 November 1992, and I have examined a copy of the certificate referring to that. On 20 January 1993, the applicant was referred to Anderson Rehabilitation by the respondent for rehabilitation and vocational assistance. By letter dated 10 February 1993, the applicant indicated that having not been informed about her claim, that is, had not been informed whether it had been accepted or rejected, she was not prepared to accept rehabilitation and she enclosed a copy of a letter of 9 February 1993 to Anderson Rehabilitation indicating that their next meeting, that is the meeting between the applicant and Anderson Rehabilitation, had to be suspended. I have examined copies of those letters. On 26 February 1993, a determination was issued by the respondent, that is, by Australian Postal Corporation, and liability was accepted to pay compensation in respect of what was described as a recurrence of a musculoligamentous strain to the right upper limb and ganglion for the period 17 June 1992 to 30 September 1992. Liability, however, was denied in respect to emotional stress and for further periods after 30 September 1992. I have examined a copy of that determination. A request for reconsideration of the determination pursuant to section 62 of the Safety Rehabilitation and Compensation Act 1988 was received from the applicant's solicitors on 11 March 1993, and I have examined a copy of that request. The applicant's general practitioner continues to provide certification of continuing incapacity said to be due to anxiety, depression and chronic ligamentous strain and ganglion of the right wrist. On 1 April 1993, the Department of Social Security, by notice, indicated that the applicant had been in receipt of social security payments and reimbursement was required to the department in respect of any payments made to the applicant; and I have examined a copy of that notice. A reconsideration was completed and the applicant's solicitor was advised of the delegate's decision by a letter dated 15 May 1993 which letter confirmed that the original determination had been affirmed. On 24 May 1993, the applicant, through her solicitors, lodged an application for review of that decision with the Commonwealth Administrative Appeals Tribunal. I have examined a copy of the application for review. The applicant's claim was listed for call over on 3 August 1994 with a view to the matter obtaining a hearing date in September 1994. I see no evidence on 5 May 1993 or 1 July 1994 or on any other date that the applicant's employment with the respondent has been terminated. The court does not have jurisdiction to deal with this application because the applicant has not had her employment terminated by the respondent, the Australian Postal Corporation. It is not necessary to deal with the claim for on-going weekly compensation payments currently pending in the Commonwealth Administrative Appeals Tribunal or with the issue of the applicant's superannuation. In any event, I cannot envisage that either could ever come within the jurisdiction of the court in an application under section 170EA In any event, I find it quite unnecessary to deal with either issue. The application by Maria Keller for remedy for purported termination of employment is dismissed. RECORDED : NOT TRANSCRIBED

THE J.REGISTRAR: Costs are reserved with liberty to apply.

I certify that this and the preceding two pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan. Associate : Date : September 28, 1994 Appearances: The Applicant : : The Applicant appeared in person Counsel for the Respondent : N.Y. Rattray Solicitor for the Respondent : Wisewoulds Date of Hearing : 14 September 1994 Judgment : 14 September 1994