T9943
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TASMANIAN INDUSTRIAL COMMISSION Decision Appealed - See T10126 Industrial Relations Act 1984 Brett Malcolm Youd and Naracaa Pty Ltd
Industrial dispute - alleged unfair termination of employment - termination unfair - reinstatement or re-employment impracticable - compensation ordered - order issuedREASONS FOR DECISION [1] On 5 December 2001, Brett Malcolm Youd (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Naracaa Pty Ltd arising out of the alleged unfair termination of his employment and alleged breach of award. [2] The matter was set down for hearing (conciliation conference) at the Supreme Court, Cameron Street, Launceston at 9.00am Thursday 24 January 2002. [3] When this matter came on for hearing Mr M Daly, a legal practitioner, sought and was granted leave to appear for the applicant. Mr T Gunn, of Durkin and Associates, appeared with Mr W Davey for the employer. [4] Following preliminary submissions, the hearing was adjourned into private conference, with the commission, in an effort to find a resolution to the dispute. This proved to be unsuccessful and the matter was listed for hearing on 21 February. [5] Evidence was taken from Mr Brett Youd, the applicant, and Mr Warren Davey, the employer. [6] Mr Youd commenced working for Naracaa [Mr Davey] as a truck driver in March 1999. Naracaa has a contract with Frigmobile to deliver chilled and frozen goods to Coles supermarkets. Mr Youd was employed exclusively in this role. Mr Davey employed four drivers and also performed driving duties himself. [7] Mr Youd drove a semi-trailer. Frigmobile staff would load this trailer and Mr Youd would simply attach it to the prime mover. The load consisted of a combination of palletised goods and hanging carcases. [8] The lamb carcases vary in weight from 16kg to 30kg. Veal carcases range from 20 to 25kg. The pig carcases average between 50 and 60kg and on occasions up to 70kg. [9] Mr Youd said that carcases were manually lifted off the hook, carried between five and 15 metres and lifted on to the supermarket hanging rail. A small supermarket would typically take 10 lambs and one pig whilst a larger store would take up to 40 lambs and four or five pigs. Mr Youd would, on an average day, deliver to about five stores. [10] A trolley arrangement was used for one store in particular due the extended distance the carcases needed to be moved. This still necessitated the lifting of carcases on to the supermarket hanging rail. [11] Mr Youd's evidence was that in some stores either the butchers or storemen employed by Coles assisted with the unloading. It would appear, however, that this assistance, where it was provided, was limited to the palletised goods and perhaps lambs, rather than the pig carcases. [12] Mr Youd said that he had "a pretty bad back for the last 12 months" which had necessitated a visit to a chiropractor every second week. He described it as muscle strain, which needed rest to get it right. Mr Davey acknowledged that Mr Youd did have back problems and did not have an issue with it being work caused.1 [13] Mr Youd said that he finally reached a point where he had "had enough" of the back pain and resolved to do something about it. On 31 October 2001 Mr Youd approached the manager of Frigmobile:2
[14] Mr Youd then telephoned Mr Davey:3
[15] Mr Youd completed his delivery round for the balance of that day. [16] The following day Mr Davey reassigned Mr Youd to a role, which only involved palletised goods and hence no heavy lifting. This was a job normally performed by Mr Davey himself. Mr Davey said:4
[17] On Sunday 11 November Mr Davey visited Mr Youd at his home. Mr Youd's recollection of that conversation is as follows:5
[18] Mr Davey added that he had also asked Mr Youd whether he had any suggestions, and none were forthcoming. [19] Mr Youd was given one week's notice of termination. During that week he attended his doctor. This and subsequent visits to the doctor resulted in the issue of workers compensation medical certificates. These certificates referred to muscle or back strain as a consequence of lifting heavy carcases. Mr Youd was cleared for modified duties [no lifting in excess of 15kg] for the period 14 November until 5 December 2001. The evidence was that he was given an unqualified clearance after that date although his employment with Mr Davey had of course concluded. [20] Mr Youd said that his back had improved since ceasing work with Naracaa and was now seeing the chiropractor every four or five weeks. [21] In his closing submission Mr Daly said:6
[22] Mr Gunn on the other hand, asserted that Mr Davey had made every effort to examine the possibilities and what his obligations are as an employer. Mr Davey runs a small business with limited opportunities to offer alternative employment. Whilst Mr Davey may have spoken to the wrong people or [by implication] asked the wrong questions, he did act in good faith, and to the best of his knowledge, in the correct manner. [23] Mr Gunn said the key issue was Mr Youd's inability to lift the weight of the carcase and, as such, the inherent nature of the work precluded his further employment. Mr Davey's Investigation [24] Mr Davey first spoke to the manager of Frigmobile. The manager agreed that "the weight is there but offered no solution".7 Mr Davey was apparently told that the same system was used throughout Australia, although he acknowledged that he had no first hand experience of this. [25] Mr Davey then approached his insurance broker seeking information as to any prescribed upper limits for the lifting of weights:8
[26] Mr Davey contacted the Coles meat manager who advised that cutting the carcase in half was not an option as it resulted in meat spoilage. [27] A considerable amount of the evidence went to the question of the availability or otherwise of Coles employees to assist with the carcase unloading. Mr Davey said that the Coles staff were available to assist and did have the appropriate protective clothing. He did not raise it with the Coles meat manager as he was a contractor to Frigmobile and it is "not my position to tell the manager of Coles how he should run his business".9 [28] Mr Davey agreed that he did not raise this issue with Frigmobile either.10 The Role of Workplace Standards Tasmania [29] Shortly after speaking to Mr Davey on 31 October, Mr Youd spoke to a Mr Riley, an inspector with Workplace Standards Tasmania. Mr Youd's recollection of this conversation is as follows:11
[30] Subsequently Mr Riley visited Mr Davey, but did not inspect the actual work in question. Mr Davey's recollection is as follows:12
[31] And later:13
[32] Apart from the conversations referred to above, it is clear that Workplace Standards did not undertake an in-depth assessment of the work in question. The Regulatory Position [33] The National Occupational Health and Safety Commission (NOHSC) publication, "National Code of Practice for Manual Handling" states as follows in relation to the lifting of weights:14
[34] It is apparent that Tasmania has adopted this standard in that the following reference is found in the WorkCover Tasmania publication "Body Strain Prevention Kit":15
[35] The responsibilities falling to employers in relation to workplace hazards can be found in Part 3 "Obligations" of the Workplace Health and Safety Regulations 1998.16 As an aid to understanding, particularly for small business, WorkCover Tasmania has distilled this regulatory obligation to the following:
[36] It is Mr Daly's contention that this process of risk management has either been ignored or applied in a most cursory manner in the instant case. [37] In relation to the employer's common law duty of care, Mr Daly referred to the following passage from The Council of the Shire of Wyong v Shirt.17
[38] Mr Daly submitted that this was entirely consistent with the regulatory regime applicable in Tasmania. [39] Mr Daly also referred to the AAT decision of then Blow DP in Howlett v Secretary, Department of Social Security.18 Whilst the issues under consideration in that decision bear no relation to the instant matter, the observations of the Deputy President in relation to a similar set of facts, are of interest:
Findings [40] It is not for this Commission to make a finding as to whether or not there has been any breach of the duty of care. Nor is it the role of the Commission to profess to a level of expertise in the area of workplace safety and risk assessment. Nonetheless, in assessing the fairness or otherwise of Mr Youd's termination, it is quite unrealistic, and in my view, improper, to ignore the regulatory environment surrounding this matter. [41] Section 30[4] of the Industrial Relations Act 1984 clearly states that a physical disability is not a valid reason for termination, except where the inherent nature of the work precludes employment. [42] Similarly, a temporary absence from work because of illness or injury, is not a valid reason for termination. [43] Sections 138A and B of the Workers Rehabilitation and Compensation Act 1988 require that, wherever practicable, an employer must either keep an injured worker's job open, or provide alternative duties, for a period of 12 months from the date of injury. [44] It is clear from the scheme of these statutes, together with the Workplace Health and Safety legislation, that Parliament intended that the rehabilitation of injured workers, together with the effective management of workplace hazards, are matters to be taken very seriously. Termination of employment is only an option when all other reasonable avenues have been explored. [45] I am quite satisfied that when Mr Youd's injury was brought to his attention, Mr Davey embarked on investigation which he believed was appropriate. Further, I am satisfied that Mr Davey believed, in his own mind, that he was acting in good faith. It does not, however, necessarily follow that this belief removed any element of unfairness, which might be associated with the termination of Mr Youd's employment contract. [46] It is a matter of regret that Mr Davey's investigation appeared to focus more on upper statutory limits for lifting rather than the risk management of the hazard. [47] It is clear from both the NOHSC and WorkCover documents that the risk of injury increases with weights in excess of 16kg and the unaided lifting of weights in excess of 55kg is all but proscribed. [48] Prima facie at least, the lifting and carrying of pig carcases weighing up to 70kg without aid, is contrary to this standard, a position apparently not lost on Blow DP in Howlett. [49] It would appear that the only alternative explored was cutting the carcases in half, a proposal rejected by Coles. [50] The alternative, which in my view was blindingly obvious, was the engagement of Coles store staff to assist Mr Youd, and presumably other drivers, with the heavy carcases, rather than the palletised goods, which did not require lifting. Mr Davey said this assistance was available, and indeed told Mr Riley that it was available. Yet he admitted that he did not raise this possibility with either Coles or Frigmobile. [51] It is unclear whether this assistance was available. Certainly on the evidence it had not been provided in the past. I am satisfied that Mr Youd either was not aware that it was available, or alternatively, did not feel he was in a position to insist that it be made available. On Mr Youd's evidence, the limited assistance that had previously been provided in some stores only, was more on a "favour" basis rather than through a clear obligation to assist. [52] In my view Mr Davey had a clear obligation to pursue this option with either Coles and/or Frigmobile. The fact that he did not, and then proceeded to terminate Mr Youd's services was, in my view, plainly unfair. [53] It may well have been that Coles would not have cooperated, in which case Mr Davey would have been obliged to explore further alternatives such as mechanical assistance. It is quite possible that, at the end of the investigation, the remedial alternatives were either impracticable or prohibitively expensive. In such circumstances termination may have been the only realistic option open. On 11 November, however, the investigation of options was a long way short of this point. Remedy [54] Where a termination has been found to be unfair, the Act prescribes that the primary remedy is reinstatement or re-employment. Mr Youd said that he would like his job back, provided it did not involve "any unsafe work practices". He said that lifting anything over 55kg was a "definite no no". [55] Mr Davey said:19
[56] Taking into account the size of Mr Davey's business and his hands-on involvement, I reluctantly accept that it would be impracticable to re-establish a workable employment relationship. In assessing an appropriate level of compensation, I have taken the following into consideration:
Order Pursuant to s.31 of the Industrial Relations Act 1984, I hereby order that Naracaa Pty Ltd, 54 Mt Stuart Drive, Newnham, Tasmania 7248 pay to Brett Malcolm Youd, 215 Opossum Road, Norwood, Tasmania 7250, an amount of $3200 by way of compensation. Such payment is to be made in full not later than 5.00pm on Friday 3 May 2002, provided that at least $1600 of this amount is to be paid not later than 5.00pm on Friday 12 April 2002.
Tim Abey Appearances: Date and Place of Hearing: 1 Transcript p. 47 |