Morris v Warman International Limited [1996] IRCA 513

DECISION NO:513/96 CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - whether VALID REASON - employee permanently incapacitated for 40 years - employee dismissed after 19 years service shortly before his 65th birthday - employer's responsibility to comply with Occupational Health and Safety Regulations - COMPENSATION - ACCRUED JURISDICTION - damages for breach of contract and breach of requirement of reasonable notice Industrial Relations Act 1988 ss 149(1), 170EDA, 170DE, 376 (1) Metal Industry Award 1984 Cl 6 (d) (vi) Turner v K & J Trucks Coffs Harbour Pty Limited, unreported, Beazley J, 10 August 1995, NI1246/94, (Unreported) Nelson v Scholle Industries, von Doussa J, 10 October 1995, (Unreported) Rigby v Technisearch Ltd, Madgwick J, 3 May 1996 No. 64 of 1996, (Unreported) Coulson v Thomas Cook, Madgwick J, 5 March 1996, No WI 1224 of 1995, (Unreported) Cray v Tynan Motors Pty Ltd and Ors (1992) 41 IR 173 Sevachandran v Peteron Plastics Pty Ltd (1995) 62 IR Ferry v Minister for Health, Western Australia (1995) 64 IR 28 Brackenridge v Toyota Motor Corporation Australia Ltd, Beazley J, 26 April 1996, No NI 1218 of 1995, (Unreported) Thorpe v South Australian National Football League (1974) 10 SASR 17 The State of Victoria & Ors v The Commonwealth of Australia, FB of High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) 4 September 1996 (to be reported in AILR and ALLR) MORRIS -v- WARMAN INTERNATIONAL LIMITED NI 3894 of 1995

Before: TOMLINSON JR Place: SYDNEY Date: 11 OCTOBER 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY

NI 3894 of 1995

BETWEEN:

Richard John MORRIS Applicant

AND

WARMAN INTERNATIONAL LIMITED Respondent

BEFORE: TOMLINSON JR PLACE: SYDNEY DATE: 11 OCTOBER 1996 MINUTES OF ORDERS

THE COURT ORDERS THAT: 1. The respondent is to pay to the applicant an amount equivalent to six months salary in relation to breach of the Industrial Relations Act within 28 days of the date of this judgment under s 170EE (3) of the Act. 2. The respondent is to pay to the applicant an additional amount equivalent to 12 months salary in relation to the claim made under s 376 of the Act also within 28 days of the date of this judgment. 3. If the parties are unable to agree upon the amounts referred to in the above Orders, leave is granted to restore the matter at 24 hours notice. Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY

NI 3894 of 1995

BETWEEN:

Richard John MORRIS Applicant

AND

WARMAN INTERNATIONAL LIMITED Respondent

BEFORE: TOMLINSON JR PLACE: SYDNEY DATE: 11 AUGUST 1996 REASONS FOR DECISION

By application dated 4 October 1995 the applicant Richard John Morris sought reinstatement, compensation and damages for breach of an implied term of contract as to reasonable notice and lost remuneration and statutory entitlements under the Industrial Relations Act ("the Act"). Particulars of the lost remuneration were stated as being salary of 73 weeks (at $542.90 per week), being $39,569.16 (together with annual leave which would have otherwise accrued) being a total sum of $3251.52. On January 17 Judicial Registrar Walker directed that the matter be fixed for hearing of two days on 15 April 1996, and further ordered the applicant file and serve a statement of claim particularising the claims in the accrued jurisdiction within 21 days - the respondent to file and serve its defence within 14 days of receipt of that claim. By notice of motion dated 12 April 1996 the respondent sought to vacate the hearing date giving as its reason that the applicant had failed to adhere to the set time table on the basis that the statement of claim had only been received on 6 March 1996. The application by the respondent was disallowed by the Court and the hearing date was confirmed as the respondent had had sufficient time in which to prepare its case despite the delay by the applicant. In his opening address on behalf of the applicant Mr Kimber of Counsel stated the applicant was a man who turned 65 on March of 1996 and who left school at 15 without any formal training and joined the respondent Warman International in its foundry in Artarmon in 1975 where he worked in various capacities until he was terminated on 20 October 1995, about 15 or so months before his 65th birthday. At the time of termination the applicant had been employed by the respondent for 19 years and 4 months. Prior to commencing with the respondent, in about 1953, the applicant lost one of his eyes in a molten metal accident and has had a false eye since that time. The applicant has had this disability for 40 years. In about 1989 the applicant received a letter from the respondent indicating that unless he wore his safety glasses he would be formally warned and then dismissed. Between February 1990 and the middle of 1994 the applicant alleged no further steps were taken against him and he received no follow-up to the letter of 1990. It was the firm position of the applicant at all times that the wearing of safety glasses distorted his vision and resulted in medical problems for him. In the middle of 1994 according to the applicant the respondent renewed its efforts with respect to occupational health and safety issues and on 5 October 1994 he was directed to take two weeks leave to think about whether or not he was prepared to wear safety glasses. Finally when the applicant returned to work after the two weeks off he was then terminated on the basis of his persistent refusal to wear safety glasses. The applicant applied to the Court for an extension of time within which to file his application - that document having been filed some 12 months after the dismissal which took place and on 31 October 1994. Approximately 10 days after he was terminated, the applicant received a social security separation certificate from his employer. In support of his application on behalf of the applicant Mr Kimber submitted that not having had legal advice and nor having received any written notice of termination in the then understood sense, (it was found by von Doussa J in the matter of Nelson v Scholle Industries, 10 October 1995, (unreported) that a separation certificate constitutes written notice for the purposes of the Act) the applicant pursued his complaints about his treatment by his employer through the Anti-Discrimination Board by way of complaint. Mr Morris told the Court he was formally terminated and that he was unaware that he had 14 days in which to lodge an application with the Court. The applicant said very shortly after he was terminated he spoke to his Union about his situation and that he wrote to a number of people in an effort to try and keep his job. One of those to whom the applicant had written was the Anti-Discrimination Board. Admitted into evidence as exhibit 2 was a letter dated 26 October 1994 from the Anti-Discrimination Board to the applicant that stated inter alia: "I refer to your letter of 10 October 1994. In order to ascertain what assistance the Anti-Discrimination Board can give you, I require further information. Can you please ring me on (02) 318 5400 to arrange an appointment to discuss the matter. (sgd) David Hilliard, Investigation Officer." The applicant told the Court that when he received exhibit 2 he thought at last he was going to get some assistance. Exhibit 3 was a draft letter dated 28 November 1994 to the applicant from the Anti-Discrimination Board posing a complaint to be lodged against the respondent that stated inter alia: "Dear Mr Morris I refer to our telephone conversation for 24 November 1994. I have enclosed a draft copy of the allegations which I have prepared in accordance with the information which you have provided. Please read this draft carefully and telephone me on 318-5400 to discuss any necessary amendments. Yours sincerely David Hilliard Investigation Officer." Attached was a document that stated inter alia: "The complainant, Mr Richard Morris, alleges that: 1. He was an employee of Warman International Ltd prior to his dismissal on 20 October 1994 2. The complainant lost his right eye over 40 years ago in an industrial accident and suffered the subsequent disability of reduced depth perception and reduced field of vision. 3. In 1989, the workplace Occupational Health and Safety Committee attempted to pressure the complainant to wear safety glasses at work. The complainant explained that although he had no objection to wearing the glasses in any area where he was in any immediate danger of eye injury, he had real problems in seeing properly when wearing the glasses. The complainant stated that his already reduced field of vision was further restricted to what he saw as dangerous levels by the glasses, such that he was unable to perform his job satisfactorily and safely. 4. The complainant also explained to the committee that when he wore the glasses for periods of longer than an hour his eye was in severe pain and had to be bathed to obtain relief. The complainant was extremely uncomfortable and unable to sleep because of the pain caused by wearing safety glasses. 5. The complainant was transferred in approximately 1990 by the Foundry Manager, Mr Charles Harris, from the heavy-jobbing bay to the core-making bay. This bay was the safest of the three bays in the foundry and removed any real risk of eye injury. 6. On 5 October 1994, Mr Harris requested that the complainant wear safety glasses on a regular basis at Warman International Ltd. 7. On 5 October 1994, Mr Harris requested that the complainant wear safety glasses. Once again the complainant explained that he had tried to comply, but was unable to due to the difficulties caused by the glasses. Mr Harris told the complainant then that he was being "stood down for a fortnight to think about it." 8. The complainant obtained a medical certificate from his GP, Dr Secheny, which advised that for medical reasons he was unable to wear safety glasses and could not work with them." It was the evidence of the applicant that he advised the Anti-Discrimination Board that he was happy with that complaint and that he understood the Board was to contact his former employer, the respondent on his behalf. On 12 December 1994 the Board advised the applicant that a letter had been sent to Warman's. Exhibit 4 was a letter dated 27 February 1995 from the Board to the applicant enclosing a copy of a letter dated 27 February 1995 from Messrs Phillips Fox to the Board. The letter from the Board stated: "If you wish to pursue your allegations against Warman, it will be necessary for you to provide us with some legal advice which shows that the section 54 defence does not apply to Warman's alleged Occupational Health and Safety Act 1983 obligations. Please telephone me on 318 5400 to discuss this matter." The enclosure from the employer's solicitors stated inter alia: "Attention: Mr David Hilliard. We refer to your letter of 7 November 1994 concerning Mr Richard Morris, and our subsequent telephone conversations. We confirm we act for Warman International Ltd ("Warman"). We are instructed to respond to the complainant's allegations in accordance with your request as follows: 1. The complainant's employer was Warman International Limited. He commenced employment on 4 June 1975. 2. In answer to the several parts of the second question: * In 1985 Warman's Occupation Health and Safety Committee produced a policy document entitled "Health and Safety Rules", a copy of which was issued to Mr Morris. Attached to this letter is a copy of the Company's policy. The policy document states that all employees must wear safety glasses when working with machinery. Warman reiterates its policy at its foundry by having large signs at the entrance indicating safety glasses are to be worn at all times. * From the date of issue of the policy, May 1985, Mr Morris was required to comply with the Warman "health and safety rules". This time period includes 1989 to 1994. * Mr Morris did not comply with the policy. * Mr Morris claimed that safety glasses caused him vision problems and headaches. 3. Warman is undergoing a multi-million dollar upgrade, and has resulted in restructuring operations. As a result of the restructuring, Mr Morris and other employees were transferred to another area within the foundry. 4. Over many years, Mr Morris has shown disregard for Warman's policy. He had been counselled over considerable period of time by his manager, supervisors, occupational health staff, safety committee members, union shop stewards, a union organiser, his union's occupational health and safety officer, as well as fellow workers. Despite this, he still refused to wear safety glasses. In order to reinforce Warman's commitment to the policy, Mr Morris received two written warnings. Mr Morris failed to reconsider his position towards the policy, and as a result he was requested to take 2 weeks' leave to further consider the matter. By the end of 1994 Warman reached the conclusion that that it had given Mr Morris every opportunity to comply with the policy, and that his continuing failure to act in accordance with it should result in his termination. 5. Warman took special care in relation to Mr Morris' predicament. 6. Warman arranged for Mr Morris to attend an optometrist to have prescription safety glasses made for him. He refused to wear them. After Mr Morris met Warman's occupational health physician, it was concluded by the physician that there was no reason why Mr Morris could not wear safety glasses. The physician requested Mr Morris to have his treating specialist contact him in order to establish if there was some reason why the glasses could not be worn. No such contact ever resulted. Subsequently, Mr Morris produced a certificate from his local GP, which stated that he should not wear glasses for "medical reasons" and because the "patient is aware of risks (sic) and is better off without them." Warman was concerned that this certificate had been produced by a medical practitioner who was unaware of the total history of this matter and the legal obligations imposed on employers with respect to providing a safe workplace. The Company denies that it has breached ss 49A, 49B or 49D Anti- Discrimination Act in its enforcement of: * Warman's obligations under the Occupational Health and Safety act 1983 to provide a safe system of work. * The common law duty of the employer to care for each employee. * The employee's obligation under the Occupational Health and Safety Act 1983 to co-operate with the employer to enable any safety requirement imposed under the Act to be complied with. * Advice form Work Cover, towards the end of 1994, that Warman would be liable for prosecution if it did not enforce the wearing of safety equipment in the manufacturing areas and an accident occurred. Warman is of the view that it has not treated Mr Morris in a discriminatory manner. His termination resulted from his persistent failure to comply with the obligations of the law. We hope that by providing these responses to your queries, the resolution of this matter is assisted. If you have any queries, please contact the writer to discuss. Contact: Paul Vane-Tempest Partner: Chris McArdle." In his evidence the applicant stated he felt that he was thereby advised to obtain legal advice and was given the options of the Disability Complaints Service and the Kingsford Legal Service. Exhibit 5 was a general authority for the Disability Complaints Service dated 4 April 1995 signed by the applicant authorising that service to instruct a Complaints Advocate to act on his behalf. It was the evidence of the applicant that he spoke to a Mr Joseph Harrison at that Service and was guided to the Kingsford Legal Service. It was the evidence of the applicant that consequent to advice received from the Kingsford Legal Centre he contacted a barrister which contact resulted in these proceedings. The applicant told the Court that in pursuing the matter he had as his aim the retention of his job and that the Anti-Discrimination Board might be able to arrange a conference with his former employer in that regard. The Court heard evidence of attempts made by the applicant to involve his Union in the matter of his termination, attempts that apparently produced no result. On behalf of the respondent the Court heard from Mr Gary Buckland, the human resource manager for Warman's since 1991. Mr Buckland told the Court although he expected to receive a claim for unfair dismissal he was surprised when he in fact did receive it after such an extended period of time. In cross examination Mr Buckland told the Court that he instructed his solicitors to respond to the complaint received from the Anti-Discrimination Board ("the Board") and that the respondent had done its investigations. However Mr Buckland stated he had received correspondence from the Board towards the end of 1994 and further said that he was aware that the applicant "was not going to go happily with the notion of being terminated for refusing to wear safety glasses." Mr Buckland told the Court that the manager at Warman's who had dealt with the matters relating to the applicant from 1991 went to America in September of 1995. Mr Buckland agreed that the respondent could have availed itself of any information Mr Harris could have provided concerning the applicant from the date the Board complaint was received until Mr Harris went overseas - a period of several months, and that it did not so avail itself. Marked as exhibit "7" was a letter dated 7 December 1994 from the Board to the witness that stated inter alia: "Mr Gary Buckland Personnel Manager Warman International Ltd Artarmon. Dear Mr Buckland I have received a compliant under the NSW Anti-Discrimination Act, 1977 from Mr Richard Morris. The complaint alleges unlawful discrimination on the ground of disability in relation to his employment with Warman International. Under the Act, I am obliged to investigate all written complaints which are lodged with this office and which allege a contravention of the Act. In conducting investigations into such matter the Board acts as an independent third party. This means that the Board does not represent the complainant and remains impartial throughout the process. The Board and its officers also maintain the confidentiality and privacy of the parties to the complaint. In addition to the investigation of this complaint, the Board will endeavour, by conciliation, to assist the parties to resolve this matter as speedily as possible in a way which will meet with the agreement of both parties. It is only if the matter cannot be resolved that it may be referred to the Equal Opportunity Tribunal for a hearing. Your assistance and co- operation in regard to these proceedings would be appreciated. The complainants' allegations are set for your consideration in an attachment to this letter. This complaint appears to involve Sections 49A, 49B and 49D of the NSW Anti-Discrimination Act, 1977, which in brief state that it is unlawful for an employer to treat an employee less favourably on the ground of disability, in the same circumstances, or in circumstances which are not materially different, than an employer would treat an employee who does not have that disability. A copy of the relevant sections of the Act is attached for your information. I would appreciate receiving your written response to the complainant's allegations as soon as possible. In addition, I would request that you provide he following information: 1) What was the name of the complainant's employer? When did the complainant commence employment? 2) What was the Company's Occupational Health and Safety Committee policy on the use of safety glasses by employees? Was the complainant required to comply with that policy from 1989 until 1994? Did the complainant comply? If the complainant did not comply with the policy, what reasons, if any, did he give? 3) What were the circumstances regarding the complainant's transfer to the core-making bay? 4) What were the circumstances in respect of the complainant's termination from employment? If any written warnings were given to the complainant, please supply us with copies of these warnings. 5) Any other information which may assist the Board in its investigation of the complaint. Please direct your written response to David Hilliard..." There followed the complaint set out above in the form of a draft complaint in exhibit 3, points 1 through to 8. Point 8 was expanded and two further points were included in the attached complaint to Mr Buckland. The additional points were: "8. ... The complainant returned to work on 20 October 1994. When he presented his medical certificate to his foreman, Mr Terry Phillips, the complainant was told that Mr Phillips "could not let him stay" if he refused to wear the glasses. 9. Later that day Mr Harris took the complainant to see the Personnel Manager, Mr Gary Buckland. Mr Buckland informed the complainant that he was dismissed and that "you have virtually sacked yourself because you refused to wear glasses." 10. The complainant states that he always wore, and was prepared to wear, safety glasses in any situation which placed his eye in jeopardy. However, he could not wear the glasses at all times in the workplace as it rendered him almost incapable of performing his job satisfactorily." The witness Mr Buckland in cross examination agreed that in the six months since the unlawful termination proceedings were lodged in the Court no steps been taken by the respondent to contact Mr Harris. Mr Buckland agreed that in resisting the claim and stating it was lodged out of time the respondent maintained it would sustain prejudice, and that that prejudice was that the main witness, Mr Harris, was out of the country. It was squarely put to Mr Buckland that the letter of 9 February 1995, the letter attached to exhibit 4 was a purported record of the steps taken by the respondent to deal appropriately with the situation and to answer allegations that might arise concerning unfair dismissal. Mr Buckland also agreed that from the time the respondent received exhibit 7 - the letter of complaint from the Board in December of 1994, the knowledge existed that the applicant was unhappy about the manner of his termination. It was further agreed that the then manager of the applicant, Mr Harris, was in Australia for nine months and no steps were taken to obtain information from him during that time. Mr Buckland said that Mr Harris was not consulted prior to his departure overseas as he believed "that both this ("the unfair dismissal claim") and the matter before the Discrimination Board were dead." In cross examination Mr Buckland agreed that the applicant from 1985 when the safety clothing policy was introduced until 1990 "went through stages (of) him wearing and not wearing safety glasses". Mr Buckland further agreed that in February of 1990 the applicant was given a letter by the respondent stating that he was required to wear safety glasses and that if he did not wear them his employment would be terminated. Mr Buckland conceded that additionally there were periods between 1990 and mid 1994 when the issues of the wearing of safety glasses was raised. Further, that by 1995 the company had done an investigation and had a detailed account of what steps had been taken with respect to the wearing of safety glasses and management issues. In January 1991 Mr Buckland became the human resources manager and agreed that that was the time he learned of the problem. Mr Buckland agreed that the respondent did not think that the matter of the glasses was serious enough to warrant termination at any time between 1985 and 1990. Until mid 1994 the applicant was not formally warned by written letter nor any other documentation. Mr Buckland said he was not aware that the applicant could only tolerate the safety glasses for periods up to an hour or so. Mr Buckland said he did not know whether the respondent ever organised or engaged an opthalmic specialist to obtain its own assessment of the applicant's complaint about the wearing of safety glasses. Mr Buckland told the Court the applicant had been seen by the respondent's occupational health and safety nurse on a number of occasions and had also seen the respondent's Dr Norman Brown. Mr Buckland agreed there were no problems with the applicant's performance and stated that the respondent was unable to locate any other position that would be suitable that did not require the wearing of safety glasses. Mr Buckland agreed that although he had had countless discussions with the applicant's union and the safety officer, the respondent had had not discussed the matter of alternate work with the applicant himself. Mr Buckland recalled the applicant agreed to get his own opthalmic specialist Dr Rowlands to contact the respondent's occupational health and safety physician Dr Norman Brown about his difficulties and stated that he could not recall whether the respondent ever acquired the necessary authority from the applicant in order that such contact be made. Mr Buckland agreed that while the applicant was on stand-down on 13 October 1994 he had provided a certificate from his own treating general practitioner stating he could not wear the safety glasses at work. Marked as exhibit 8 was the medical certificate of Dr Secheny dated 13 October 1994 that stated: "This is to certify that Mr Richard Morris is in my opinion suffering from monocular vision. Not to wear safety glasses for medical reasons. (Patient aware of risks and is better off without them, to continue working without safety glasses." Mr Buckland agreed the respondent had exhibit 8 in its possession before the termination and added that Dr Brown telephoned Dr Secheny and discussed the position. "very little store" was put on the certificate by the respondent. Mr Buckland could not recall how or when the respondent received the medical certificate exhibit 8. It was suggested the respondent may have received it after the actual termination. Mr Buckland stated that he did not know that in the 20 years of the applicant's employment with the respondent he had never suffered an injury to his remaining eye. Mr Buckland acknowledged that the fact that the applicant's union shared the view that the applicant should wear safety glasses. Mr Buckland was aware that prior to the termination the applicant had been doing regular overtime and that the applicant worked regularly a six day week. In explaining the "blanket policy that all employees in the foundry wear safety glasses" Mr Buckland agreed that no effort was made by the respondent to individually assess each person's work. It was Mr Buckland's view that that policy was backed up by legislation. Although Mr Buckland said he was aware of the formal warning system, he said he was not aware that between 1985 when the policy came in and 1990, the applicant was never formally warned about the consequences of not wearing safety glasses. Mr Buckland stated that he was unaware that the applicant had left school at 15 years of age and that he had no formal training. In re-examination Mr Buckland advised that Regulation 12(3) of the Factories Shops and Industries Act 1962 provided; "...for the use of suitable goggles where employees are exposed to the risk of injury by molten metal, flying chips or radiation..." and further that Regulation 36 (2) provided that "...protective clothing was to be worn to use the protective devices and equipment provided in accordance with these regulations. If any such person discovers any defect in any such protective device equipment or clothing he shall without delay report the defect to the occupier of the factory or the person apparently in charge." Regulation 37 provided for the penalty payable in respect of breaches of the legislation. Exhibit "A" was a letter dated 13 October 1994 from Mr Buckland to the applicant that stated: "Dear Mr Morris I refer to your letter of 10/10/94 concerning your unwillingness to comply with the Companies (sic) policy that Safety Eyewear must be warn (sic) in the foundry. This company has an unequivocal obligation to protect the health and safety of its employees at work. This obligation is set out in the Occupational Health and Safety Act. Section 19 of the same act specifies Employees must co- operate with the employer in any requirements to comply with the act. This section of the Act then specifies the fines to be imposed on Employees who do not comply. Clearly you have a legal obligation to wear the safety glasses we have provided for you. This company has specifically arranged for you to visit an optometrist who then made a pair of Safety glasses specifically for you. We have also arranged for you to see our Occupational Health Physician who has not been able to establish from you any medical evidence to support not wearing these safety glasses. It is a condition of your employment that you comply with the companies (sic) policy in regard to the wearing of safety equipment. Let me reinforce what has been told to you previously, you will be dismissed if you continue to not comply with your conditions of employment, I don't think we can make our position any clearer. The company sincerely hopes that you will reconsider your position and comply with your Contract of Employment and the Occupational Health and Safety Act. Gary Buckland. Personnel Manger" Exhibit "B" was a letter dated 10 October 1994 from the applicant to the respondent stated inter alia: "Mr C Harris, Foundry Manager Dear Mr Harris I refer to our recent meeting and the actions leading up to my forced leave last Wednesday...I have considered the issue raised by you in relation to my wearing of safety glasses...As you know I lost my right eye over 40 years ago in an industrial accident... I have worked hard at learning to adapt to this disability as best I can and have continued to work in my trade as a moulder.. Back in 1989 I came under attack in the workplace because of my inability to conform to Warman's request to wear safety glasses at all times. This attack has been renewed in recent times... I have no objection to wearing the glasses in any area where I am in any immediate danger of eye injury...However I work predominantly in an area of the workplace where I am in little real danger of injury. This of course is not my reason for failing to wear the glasses.... As previously discussed...under pressure form my supervisor, I have worn the glasses for more than an hour, I have found that my eye has been aggravated...Often after ..work I am extremely uncomfortable and unable to sleep because of the pain, for as long as 8 hours. It is I feel a bloody minded attitude by Warman's to insist on me adopting a practice which severely hampers me in the executing of my job and threatens to drive me out of employment...surely a special exemption based on a genuine disability can be granted. This matter has come and gone over recent years and there is certainly renewed pressure on me now, as is clearly evidenced by you forcing me to take two weeks leave to consider the matter. I wonder whether this is the real issue, or whether there are other forces at work here. It is clear the company continues to downsize its operations and I am concerned that this renewed vigour on the issue of wearing safety glasses is only a ploy to find a way to dismiss me so as to avoid any redundancy payments. I am 63 years of age, with retirement only 18 months away, and I feel your actions are over zealous to say the least..." Mr Buckland told the Court that if the applicant continued to work without safety glasses the respondent would be liable to prosecution and that that the WorkCover authority advised the respondent of that fact in early October of 1994. The respondent resisted the application for the Court to exercise its discretion and allow the matter to proceed out of time . However on the basis of the judgment of Beazley J in Turner v K & J Trucks Coffs Harbour Pty Limited, Beazley J, Industrial Relations Court of Australia, NI1246/94, (Unreported) the Court exercised its discretion in favour of the applicant and granted leave to extend the time for filing the application having considered all relevant issues. In his evidence in chief the applicant told the Court he obtained the qualification of Jobbing Core Moulder in 1950 and that during the first ten years of employment the applicant was not required to wear safety glasses. In the first instance ear muffs and safety helmets were part of prescribed safety equipment, and in the words of the applicant "(they) sort of went by the board." During 1985 and 1990 the applicant told the Court he found he could not wear the safety glasses all the time as he suffered with water in the eye and rashes to the face and forehead. Variously marked were pairs of safety glasses issued by the respondent to the applicant from 1990 onwards. Exhibit 11 were a pair of blue-green glasses, non-prescription. In April 1994 the applicant visited an opthalmologist who made up a pair of prescription safety glasses. It was the evidence of the applicant that in April of 1994 he visited Dr McInnes, an opthalmic surgeon upon the referral of his treating general practitioner, Dr Secheny. Dr McInnes replace Dr Rollins, the applicant's original specialist who had retired. The applicant told the Court he had been a patient of Dr Secheny's for some 23 years and with that particular practice for some 40 years. The applicant took this course of action because of the "blitz" on again at work. Bi-focal glasses were prescribed. The respondent had the prescription for bi-focal safety glasses filled by an optometrist at Artarmon. Those glasses were admitted as exhibit "12". Originally the glasses were made with side wings, and it was the evidence of the applicant that he had removed those side wings. It was the evidence of the applicant that having signalled the difficulties he was experiencing the respondent made no attempt to contact Dr McInnes to discuss the matter. To an appointment with Dr Rollins the applicant took with five or so pairs of safety glasses the respondent had issued him with. It was the applicant's evidence that Dr Rollins "checked" the glasses and pronounced them "no good". The respondent did not obtain a report from Dr Rollins about the matter. Then on 19 February 1990 the applicant received exhibit "13" - a memorandum that stated inter alia: "TO R J Morris FROM G C Hoschke DATE 19 February 1990 SUBJECT WEARING OF EYE PROTECTION You are aware of the Company requirements for all personnel and visitors to wear eye protection when in the Foundry work areas. You are also aware we have an inspection of the Foundry by Mr John Watson of the Work Cover Authority...and you have been approached the A.M.W.U. directly in an attempt to gain an exemption from wearing eye protection. Neither of these organisations to date has been willing to argue an exemption for you. ..We hereby notify you that unless you wear eye protection in a proper manner so as to afford the intended protection you will be subjected to disciplinary procedures by way of warnings culminating in dismissal. (sgd) G.C. Hoscke" All the applicant could remember was being called up the office, the then foundry manager's office, and being handed the letter. At the time the applicant said words to the effect "I cannot wear the blooming things for any length of time". From 1990 until 1993 the applicant said he was requested verbally from time to time to wear the glasses. In 1991 Mr Harris took over as foundry manager and from that time until Mr Harris left the applicant only spoke to him approximately 4 times. On 4 October 1994 the applicant was called into the office of Mr Harris. Present was the foreman, a member of the respondent's safety committee Mr Bob Playden and the applicant. The applicant was advised that he would have to wear the safety glasses otherwise he would be stood down. The applicant was stood down on full pay for two weeks to think about the issue. Alternatives were not canvassed with the applicant. The applicant forwarded exhibit "B" to the respondent and was advised that his nephew, an accountant, assisted him to write the letter. The response to exhibit "B" was exhibit "A". As a result he visited his own doctor, Dr Secheny had provided him with a copy of exhibit "B". Dr Secheny provided the applicant with exhibit "8". On 20 October 1994 the applicant reported for work and found his bundy card was not in the rack. The applicant told his foreman he had a certificate, and also indicated he was not able to wear the safety glasses. The foreman replied that he could not then let the applicant start. Shortly thereafter the applicant went to Mr Harris, and a meeting took place between himself, Mr Harris and Mr Buckland. Mr Buckland advised the applicant that he had virtually sacked himself. The applicant said he registered for work at the CES and that it had been his intention to work at least until Christmas 1995 and then have 3 months long service leave. The applicant was never contacted by the CES. In cross-examination the applicant stated that to his knowledge Joe Frankowitz Dennis Hasty, Nigel Lees and Graham Slater were four workers who did not wear their safety glasses all the time. Further, the applicant agreed he was paid the sum of $10.48 foundry allowance as a dust allowance and that with superannuation he received the sum of $50,000.00. The applicant said he was not actually surprised to be terminated but "very very disappointed". On behalf of the respondent the Court heard from Dr Norman Brown, an occupational health physician employed by the respondent who had been employed by the respondent since 1986 and who stated he had frequently examined the applicant. In August of 1994 Dr Brown said he examined the applicant without the aid of equipment and found no indication of any particular inflammatory condition or any other pathological condition that would preclude the usage of safety glasses. In cross-examination Dr Brown agreed that from the point of view of his capacity to examine the applicant, the problems and complaints of the applicant could not be ruled out. Further, in cross-examination Dr Brown made no attempt to evaluate the vision of the applicant when wearing safety glasses nor when not wearing them. However Dr Brown stated that "there would be virtually no conditions that he could imagine of the eye itself which would preclude the wearing of safety glasses" and further stated he had no particular qualifications in opthalmology. Dr Brown saw the applicant a second time in 1994 and could not recall the reasons why the applicant was using eye drops and stated there were no observable symptoms of inflammation and then agreed that such may not be observable as the applicant was using drops. Dr Brown stated that in the cases referred to him by the occupational health nurse at Warmans that he was not able to treat but was able to refer to a specialist but that no such referral was made in the case of the applicant. As result of receiving exhibit "8" Dr Brown stated he contacted Dr Secheny who advised that there were no specific opthalmalogical reasons for the applicant not using safety glasses. Dr Brown said he did not recall why Dr Secheny had provided the certificate (exhibit "8") and said that the length of time Dr Secheny had been treating the applicant reflected acceptance of the complaint of the applicant. Dr Brown agreed that in some cases no objective basis can be found to support the workers complaint of pain and illness but nevertheless it is accepted that such workers have a genuine problem. In cross examination the applicant agreed that he was warned that if he did not wear the safety glasses he would be terminated. The court heard from Mr Terence Phillips, a senior foreman employed by the respondent who supervised the applicant at the time of his employment. It was the evidence of Mr Phillips that the applicant was given a verbal warning in front of his union delegate and further stated that he was unaware if the applicant received a written warning. In cross examination the witness stated it was the policy of the respondent that a second written warning is given to the employee and after the end of the second written warning, termination results from a failure to comply with the direction concerned. Mr Phillips was of the view the complaints of the applicant concerning his eye were genuine and further stated that in his experience the respondent had never asked his to provide a solution to, nor assist with solving the problems facing Mr Morris and his sight difficulties at work. On behalf of the respondent the court heard from Sister Mary Henry the occupational health nurse employed by the respondent. It was the evidence of the witness that she spoke to the applicant in 1986 and that she stated she was aware of the obligations of an employee under section 19 of the occupational health safety act or under the Foundry Regulation of the Factory Shops and Industries Act. Sister Henry stated that the supervisor Terry Phillips had referred the applicant to her that she had discussed the matter with Mr Phillips and referred the applicant to see Dr Brown. It was also suggested that the applicant visit his opthalmologist. Sister Henry stated that the medical records kept by the respondent bore an entry dated 20 October 1994 by Dr Brown that said interalia; "Medical certificate Dr Steven Secheny - with a telephone number. Not to use safety glasses for medical reasons. Contacted..." The witness advised the court she could not decipher the handwriting of Dr Brown. Admitted into evidence is exhibit "16", the health and safety rules of the respondent dated May 1995. That policy stated inter alia; "it is essential at all times that protective clothing, safety glasses, helmets and other safety equipment is worn where required." The file notes Ms Henry retained concerning the applicant revealed that in 1989 the witness thought it more appropriate that the applicant wear the glasses that receive an exemption from the company from wearing them. Sister Henry advised the court that she did not feel that putting a screen around the work area of the applicant would give the applicant sufficient protection from the risk of injury. Sister Henry stated that she accepted the complaints of the applicant with regard to the difficulties he had concerning the wearing of the safety glasses to be genuine. The witness stated she thought she saw exhibit "8", the certificate from Dr Secheny. Sister Henry showed the certificate to Dr Brown as she was concerned that Dr Secheny was not aware of the work environment of the applicant. Sister Henry asked Dr Brown if he could talk to the applicants doctor. Sister Henry stated that the medical records retained by the respondent concerning the applicant made by Dr Brown stated that the applicant was required to wear safety glasses at least in situations of increased risk. The report continued: "Using safety glasses, as necessary." In relation to the claim for unlawful termination the court heard again from Mr Buckland, he stated that safety became a key result area in the plans of the respondent and that a process of counselling was undertaken with the applicant concerning the safety glasses issues. At that time discussions were held between the witness and Dr Brown and Mr Buckland stated that during this time other issues surfaced such as flexibility of labor so that there was no issue of the applicant simply being allowed to perform the one task. On the day of termination Mr Buckland said that he was present with the applicant and Mr Harris and the applicant was advised that he had effectively terminated himself because he was not willing to comply with the employment conditions of the company. Mr Buckland told the court that he had explored alternatives to sacking with the union representative of the applicant and that prior to December 1995 there was no document wherein the respondent set out discipline procedures that had to be followed. It was the evidence of Mr Buckland that he had a conversation with the applicant union representative in the two week period while the applicant was on stand down. Mr Buckland stated that he was of the option the respondent had exhibited generosity towards the applicant in the amount of time spent in counselling sessions and that the screen idea suggested by the former personnel manager Mr Harper could only be considered as being impracticable. On behalf of the respondent the court heard from Mr Rodger Roberts a safety inspector with Work Cover Authority. The legislation concerned is the Occupational Health and Safety Act 1983 Section 15. Under section 17 an employee would be warned for breaches of safety and then fined. Under section 15 the employer company would be prosecuted and fined for breaches of the act. Mr Roberts told the court he was familiar with the respondent's foundry and was aware of the applicants difficulties and said that he had recommended the respondent have the applicant assessed by a specialist. Mr Roberts told the court that he recommended to the respondent that it have the applicant assessed by a specialist in relation to the wearing of safety glasses. CONCLUSION Section 170DE provides an employer must not terminate a contract of employment unless there is a valid reason. The legislation was considered by Northrop J in Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR where it was stated : 'The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in section 170EDA. Subsection 170DE(1) refers to "a valid reason or valid reasons", but the Act does not give a meaning to those phrases or the adjective "valid". A reference to dictionaries shows that the word "valid" had a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is "2. of an argument, assertion, objective, etc, well founded and applicable, sound defensible: Effective, having some force and pertinency, or value." In the Macquarie Dictionary, the relevant meaning is "sound just, or well -founded'; a valid reason." In its context subsection 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 purpose of subsection 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, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd 5 May 1995, (Unreported), when considering the construction and application of section 170DC." Mr Morris commenced employment in an inherently dangerous work environment with the respondent nearly twenty years ago severely handicapped. He possessed only one eye; the respondent was aware of the handicap from the beginning and at that time there were no requirements for the compulsory wearing of safety equipment nor safety glasses. That the work environment of the respondent was inherently dangerous was recognised by legislation and regulations were put into place requiring all workers at such sites to wear safety clothing including safety glasses. The applicant submitted that from 1975 onwards the respondent was bound to comply with the Occupational Health and Safety Laws in New South Wales and to enforce the wearing of safety glasses. At first glance, the dismissal of a worker for refusing to comply with mandatory safety regulations may seem to be a valid reason for termination. Indeed, it was submitted by the respondent stated that the respondent terminated the employment to avoid an illegal act. However at the time the regulations were brought into being the applicant tried to comply with the obligations but his severe handicap prevented him from doing so. The evidence shows the respondent for a long while tolerated the applicant working without safety glasses and it could be argued the respondent tolerated an "illegal" situation for a long time. The respondent submitted that it is a fundamental principle of law that it is not available to a person or persons whose affairs are subject to statutory prescription to use as a defence against an accusation of continuing breach, that they have breached the statute before. It was submitted that obligations cannot be "waived" no matter how longstanding that breach has been. Although that argument is technically correct, it would have been a fairer solution to the problem of continuing breach of the respondent's obligations if the rights of the applicant had been considered and dealt with in any other way other than termination, particularly in light of the respondent's past acquiescence to the situation. By the end of 1993 after 18 years employment and after 9 years after the introduction of a policy concerning safety glasses the applicant was not wearing the glasses and the respondent knew this. From the facts of this case it is clear that the 'operational requirements' of the respondent had changed in that it perceived that it did require its employees to wear safety equipment. However the evidence shows that the respondent was inconsistent in the way in which it went about putting into place those requirements, in that it did not take into consideration the special difficulties of the applicant and obtain a specialist opthalmic opinion of its own, nor did it discuss the matter with the applicant to obtain his views on alternate employment sites, nor did it canvass the possibility with the applicant or his representatives of early retirement or even redundancy. The evidence shows the respondent for a long while tolerated the applicant not complying with the requirements of the changed in operations, and then decided to apply those requirements against the applicant in a most unfair manner. Accordingly it is a finding of this Court that the respondent did not have a valid reason within the meaning of the Act for the termination of the applicant Mr Morris. I agree with the submission of the applicant that it was the approach of the respondent that after March 1994 the applicant had "sacked himself" was one articulated and squarely rejected by the Full Court in Bostik v Georgevski (1992) 41 IR 452) . It is a finding of this Court that the termination of Mr Morris was at the initiative of the employer. It was the evidence from Dr Brown that if he could not treat a worker then that worker was referred by him to an appropriate specialist. In the case of the applicant he did not do that. It is clear that Dr Brown examined the applicant and on two occasions he found nothing wrong with the eye, and that he had no reason to disbelieve the applicant's complaints of difficulty. No attempt was made to obtain an independent specialist opinion as to the extent of that difficulty. According it could well be argued the applicant was not accorded fairness in that the respondent did not deal with his matters in the same fashion that it dealt with other employees, and that it made up its mind peremptorily with regard to the difficulties of the applicant thereby failing to accord the applicant procedural fairness. The respondent submitted that the High Court ruling in The State of Victoria & Ors v The Commonwealth of Australia, FB of High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), 4 September 1996, makes it even less possible for the Court to correctly apply the Act by finding in favour of the applicant as the respondent had a valid reason for termination within s 170EDA(1)(a). The applicant in reply submitted that the effect of the High Court decision is not to change the onus in relation to 'valid reason'. I agree with that submission. Further that the decision has little practical effect on the present facts because, as both parties agreed, the employment of the applicant was governed by the Metal Industry Award 1984. Clause 6 (d) (vi) providing as follows: "Termination of employment by an employer shall not be harsh, unjust and unreasonable. For the purpose of this clause, termination of employment shall include terminations with or without notice. Without limiting the above, except where a distinction, exclusion or preference is based on the inherent requirements of a particular position, termination on the ground of race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction and social origin shall constitute a harsh, unjust or unreasonable termination." It is correct to say that the award has force of law by virtue of section 149(1) of the Act and that a reason for terminating a Worker's employment cannot be valid within the meaning of "sound, defensible or well founded" as defined in Sevachandran v Peteron Plastics Pty Ltd (1995) 62 IR, if it is breach of the Award (Marshall J, Ferry v Minister for Health, Western Australia,(1995), 64 IR 28, upheld by the Full Bench in Minister for Health v Ferry, No WI 2177 of 1995, 4 April 1996(Unreported). It is a finding of this Court that the respondent Warmans has failed to show that it was not in breach of the award in terminating the applicant, that the termination was not harsh unjust or unreasonable. I see no reason in the circumstances why the maximum amount of compensation should not be awarded to the applicant and accordingly it is first ordered that under s 170EE (3) of the Act the respondent pay the applicant an amount equivalent to 6 months salary within 28 days of the date of this judgment. In addition to relief under the Industrial Relations Act the applicant sought damages at common law for breach of the reasonable notice term and submitted that he must succeed on the basis that there was no written contract of employment that dealt with the termination. In dealing with the applicant's submission that Airlines that award entitlements for Byrne & Frew v Australian payment in lieu of notice do not constitute an "implied term" of the contract of employment the respondent argued that there was no implication that Mr Morris was entitled to more than 5 weeks pay in lieu of notice. In fact if it was not for the statutory prescription of 5 weeks notice Mr Morris would have been paid, subject to the then requirement under the Metal Industry Award, one week's pay in lieu of notice. Further, that on the basis of the agreements reached on his behalf and on his fellow Union members behalf on the part of his Union over many years, on the basis of long established practice Mr Morris's "implied term" was probably termination on one week's notice in lieu. The applicant submitted ss 170DB(2) and (4) of the Act contemplated the Court determining, by a consideration of all the circumstances of the case, the "required" period of notice; that the table in s 170 DB(2) does not set the periods of notice actually required in each case. Further it was argued that so much is clear by the use of the expression "at least" before what are, in effect, minimum periods of notice for the various stated years of service. Accordingly it was submitted that the Act expressly contemplates that the Court will look to established "unwritten law" (s376(1)(b) of the Act) with respect to "reasonable notice" in circumstances where an applicant's contract of employment either expressly provides for a period of notice less than the relevant minimum required by s 170DB(2) or where the question of notice on termination is not dealt with at all. Mr Kimber submitted that here there was no written contract of employment, that the unchallenged and uncontradicted evidence was there was never any discussion as to what would be an appropriate period of notice on termination, and thirdly that an oral contract was admitted. In Brackenridge v Toyota Motor Corporation Australia Ltd, Beazley J, No NI 1218 of 1995, (Unreported), the applicant alleged that there were two implied terms of the contract of employment, one relating to notice and one relating to good faith. The implied term as to notice was pleaded in Ms Brackenridge's amended statement of claim. Her Honour stated: "In the absence of an express term as to the notice which is to be given upon termination, there is usually an implied term that reasonable notice will be given: NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68 per Gleeson CJ and Handley JA at 74. In the present case, there was no express term relating to notice. However the applicant's employment was governed by the Toyota Australia v Ehicle Industry award. Clause 5(c) of the Award provided for the periods of notice which the employer was to give upon termination. As has already been observed, terms of an award are not implied into the contract of employment. However, the award still governs the employment to the extent that the express terms of the employment do not make some greater or more beneficial provision. As Brennan CJ, Sawson and Toohey JJ said in Byrne & Frew v Australian Airlines Ltd (1995) 131 ALR 422 at 426-7: 'The award regulates what would otherwise be governed by the contract. But [the award provision is] imported as a statutory right...The importation of the statutory right into the employment relationship does not change the character of the right. As Latham CJ points out in his judgment in Amalgamated Collieries of WA Limited v True (1938) 59 CLR 417 at 423, the legal relations between the parties are in that situation determined in part by the contract and in part by the award. . . .In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award. The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award (See Kilminster v Sun Newspapers Ltd (1939) 46 CLR 284) and, as we have said, the award operates with statutory force to secure those terms and conditions. Neither from the point of view of the employer nor the employee is there any need to convert those statutory rights and obligations to contractual rights and obligations." Their Honours further stated at 428-9: "...a term of an award derives its force, not from agreement between the parties, but from statute. That being so, if a contract of employment is made upon reliance upon a provision of an award, it is not a term of the contract because it already has statutory force." It follows that where an Award governs a particular aspect of employment, there is no room for the implication of a term relating to precisely the same subject matter. Accordingly, I reject the submission that there was an implied term as alleged. If I am wrong, and there was such an implied term the question would arise as to what, in the circumstances was a reasonable period of employment." The applicant submitted that the common law principles with respect to reasonable notice are to be applied in determining the "required" period of notice under s 170DB of the Act and that, such entitlements in the case of Mr Morris should be 18 months. I agree with the submission of the applicant that the Court undoubtedly has the power to consider and determine the claim in the accrued jurisdiction: Coulson v Thomas Cook Limited, Madgwick J, WI 1224 of 1995 (Unreported). Further, that in the absence of specific provision, the law will imply a term to the effect that the contract is terminable by either party upon reasonable notice to the other: Sarafaty's case (supra) and that there is no set formula to establish in any particular case what the term "reasonable notice" will mean: Thorpe v South Australian National Football League (1974) 10 SASR 17. The applicant relied on Cray v Tynan Motors Limited (1992) 41 IR 173 where his Honour Mr Justice Powell dealt with factors to be considered when assessing the period reasonable notice in cases such as these. The Court heard no evidence the respondent took any steps to ascertain from the applicant what was a reasonable period of notice and there is evidence the applicant was always of the view that 65 would be his age of retirement. It is a finding of this Court that 12 months would have been a reasonable period of notice for the respondent to have given to the applicant in the circumstances. The respondent submitted that the applicant had not bothered to mitigate his loss and apply for any other jobs. In the circumstances I find the applicant did all that he could and approached the CES. Having regard to the age and health of the applicant it is a finding of this Court that the applicant in fact did all that he could. Accordingly it is secondly ordered that the respondent pay to the applicant an additional amount equivalent to 12 months salary, including all leave and loading entitlements, within 28 days of the date of this judgment. I make the following Orders 1. The respondent is to pay to the applicant an amount equivalent to six months salary in relation to breach of the Industrial Relations Act within 28 days of the date of this judgment under s 170EE(3) of the Act. 2. The respondent is to pay to the applicant an additional amount equivalent to 12 months salary in relation to the claim made under s 376 of the Act also within 28 days of the date of this judgment. 3. If the parties are unable to agree upon the amounts referred to in the above Orders, leave is granted to restore the matter at 24 hours notice. I certify that this and the preceding thirty-two (32) pages are a true copy of the reasons for decision of Judicial Registrar Tomlinson as recorded in the transcript and revised by the Judicial Registrar.

Associate: Dated: 11 October 1996

APPEARANCES

Counsel appearing for the applicant: Mr M Kimber Solicitors for the applicant: Abbott Tout

Counsel appearing for the respondent: Mr C McArdle Solicitors for the respondent: Phillips Fox

Dates of hearing: 15 & 16 April & 4 June 1996 Written submissions complete: 27 September 1996 Date of judgment: 11 October 1996