T10126
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Brett Malcolm Youd and Naracaa Pty Ltd
Appeal against a decision handed down by Commissioner T J Abey arising out of matter T9943 of 2001 - Order varied REASONS FOR DECISION [1] This is an appeal filed on behalf of Brett Malcolm Youd (the appellant) pursuant to s.71 of the Industrial Relations Act, 1984 (the Act) against a decision of Commissioner Abey in Matter T No. 9943 of 2001. [2] In that decision the Commissioner found that the appellant had been unfairly terminated and awarded him compensation of $3,200.00. [3] In his decision the Commissioner has summarised the issues raised before him and a brief outline of the employment history. He said:
[4] Mr Youd had suffered from "a pretty bad back for the last twelve months" and had finally reached a point where he had "had enough" of the back pain and resolved to do something about it. The parties were unable to reach any position that would address the problem with Mr Youd's back pain. His services were then terminated by Mr Davey as there was a concern for further damage to Mr Youd's back and Mr Youd was not able to fulfil his work requirements. There was no alternative employment. [5] Having been terminated Mr Youd then consulted his doctor who issued medical certificates referring to muscle strain caused by the lifting of heavy carcases. Although his services had been terminated Mr Youd was cleared for modified duties for the period 14 November to 5 December, 2001, with an unqualified clearance from that date. [6] It was submitted on appeal that the appellant should have been reinstated; that being the principal remedy under the Act. The appellant referred to s.30(9) of the Act which prescribes:
[7] It was argued that reinstatement was a practical remedy that the Commissioner should have determined, it was also argued that the Commissioner did not provide any reasons or explanation for determining that reinstatement was not a practical remedy. [8] The grounds of appeal are as follows: Commissioner Abey: (a) made a legal error; and (b) acted on a wrong principle; (c) gave weight to irrelevant matters; (d) gave insufficient weight to relevant matters; (e) made a mistake as to the facts 1. "in deciding that:
[9] The principles adopted by the Commission in determining matters on appeal are those found in the decision of the High Court in House v The King (1936) [55 CLR 499, at 504-505 per Dixon, Evatt and McTiernan] which provides:
[10] Mr Daly, appearing, by leave, for the appellant, contended that grounds of appeal one and four support his submission that the exercise of the discretion should have resulted in reinstatement as the appropriate remedy and appeal grounds two, three, four and five address compensation. Appeal ground four supports the claim that there is an "insufficiency of the Commissioner's reasons generally."1 [11] In respect to the Commissioner's failure to order reinstatement Mr Daly submitted that the most recent amendments to the Act placed reinstatement at the "centre of the Commission's powers for the resolution of industrial disputes".2 [12] The Commissioner said in his decision that:
[13] It was argued by the appellant that the Commissioner, having made such determination, did not explain what it was about the size of the business that presented a difficulty nor did he explain the hands-on involvement of Mr Davey as being, in part, the reason for not reinstating Mr Youd. [14] Mr Daly referred to the decision in Nicholson and Heaven and Earth Galleries [126 ALR 233] where Wilcox CJ, as he then was, said:
[15] He submitted that the above passage from the decision "has a fairly long pedigree now and it is submitted that that statement that I have just read is good law in this jurisdiction. It represents sound principle, perhaps notwithstanding the lack of any precedent binding on this Commission."3 [16] Mr Daly said that the onus rests with the employer to argue that reinstatement is not a practical remedy and that in this matter such onus has not been discharged. He referred to the decision of Her Honour Justice Beazley in Quality Bakers of Australia Limited v Golding and another [60 IR 327] as authority. [17] In response to appeal ground one the respondent submitted that the Commissioner had rightly taken into account that the business operated by Mr Davey was a small business with only four employees, other than Mr Davey, the variety of work was limited and Mr Davey was involved on a daily basis with the operation of the business. It was the evidence of Mr Davey that the position had already been filled and there was no other work available, likewise Mr Davey would have been concerned about the risk of any further damage to Mr Youd had he been reinstated as it was clear that Mr Youd was unable to and/or refused to perform all aspects of the work required. [18] These were relevant considerations for the Commissioner to take into account in exercising his discretion as to whether the employee should or could be reinstated. [19] The Commissioner having had the benefit of seeing the witnesses at first instant came to the conclusion that "I reluctantly accept that it would be impracticable to re-establish a workable employment relationship". [20] The issue of reinstatement was discussed before the Commissioner, the employer stated that reinstatement was not practical, the main reason being the inability and unwillingness of the employee to perform part of the work for which he was engaged, this was unfortunate but a reality, the business is a small business with limited scope to employ Mr Youd in any other capacity. The submissions before the Commissioner reveal that Mr Davey did examine ways in which the reason for Mr Youd's inability to perform the work could be remedied. Mr Youd did not offer any solution. [21] Mr Youd was keen to resume work but was unable to perform all of the functions of the position for which he was employed. Mr Davey had undertaken an investigation as to how to overcome the difficulty Mr Youd was experiencing, he sought advice from various sources which appeared not to provide much assistance. It is not within the jurisdictional authority of this Commission to determine whether or not the work should have been performed in the manner in which it was performed. Both Mr Davey and Mr Youd sought information and advice as to how the difficulty could be resolved, neither were able to find a resolution. The Commissioner makes reference to those attempts in his decision. [22] Mr Youd was provided with other work following his complaint about his back problem, however that work was not possible on a permanent basis. Mr Davey employs four drivers, three perform the same work as Mr Youd, one works on a different contract and Mr Davey himself performs a driving role so the opportunity of transferring him into another position was limited if not impossible. We disagree with Mr Daly that there was no evidence as to the size of the business or the `hands on' role of Mr Davey, transcript of the hearing below clearly shows those matters being discussed with Mr Davey when giving sworn evidence.4 [23] We are of the view that the Commissioner did not err, did not act on a wrong principle, did not give weight to irrelevant matters or give insufficient weight to relevant matters or make a mistake as to the facts in deciding that reinstatement was not a practical resolution to the claim. [24] In respect to appeal ground four that the Commissioner did not provide adequate reasons for his determination Mr Daly claimed that:
[25] Reference was made to the decision of the NSW Court of Appeal in Beale v Government Insurance Office of NSW [1997 NSWLR 431] where it was held that:
[26] We disagree with Mr Daly that the Commissioner failed to provide reasons in support of his determination; his reasons as to why he decided that reinstatement was not a practical remedy are spelled out in his decision at paragraph 56. His decision details the matters he took into account and his reasons why reinstatement was not practical including the matters he considered in assessing compensation. We detect no error in the approach adopted by the Commissioner. [27] The evidence in the hearing below is that once the employee had alerted the employer to his back problem he, the employee, was placed in another position, that of driving Mr Davey's vehicle, whilst Mr Davey investigated the problem and sought resolution. It was only then brought to the attention of Mr Davey that the employee had been experiencing back problems for some twelve months. [28] We note also that the employee was seeking reinstatement but was not be prepared to perform all of the work required by the employer, we do not cavil with his reasons but recognise the reality that under those circumstances the Commissioner's finding that "a workable employment relationship would be impracticable" was reasonably open to him. It is not for this tribunal to determine whether aspects of the work required of some of Mr Davey's employees is `safe'. We note the record of discussions with Workplace Standards Tasmania which are inconclusive and were of little assistance to the parties. [29] Commissioner Abey said, when referring both to the Act and the Workers Rehabilitation and Compensation Act 1988:
[30] We agree with his comments and support the views expressed. [31] Mr Youd had a good employment record with no history of absences or poor work performance, in fact quite the opposite, he also it would seem had a good working relationship with Mr Davey; his termination was for reason of his physical inability and refusal to perform certain requirements of the job and the inability of the employer to provide any other work or to provide the facility for the work required to be performed in a manner that would not cause any further injury to Mr Youd's back. [32] The comments of Deputy President Blow, as he then was, in a decision of the Administrative Appeals Tribunal (AAT) in Howlett v Secretary, Department of Social Security [Nos.T94/50 and 96AAT No. 9744] are relevant as to the responsibility of employers to provide a safe workplace, albeit the circumstances of the matter before the AAT bear no relation to this matter. [33] In respect to the amount of compensation awarded by the Commissioner Mr Daly argued that he had failed to take into account relevant factors in assessing an appropriate amount. The Bench was referred to a decision of the Australian Industrial Relations Commission in Sprigg v Paul's Licensed Festival Supermarket [Print R0235] which provides some guidance as to the matters to be considered in awarding compensation. That decision addresses the requirements of the Workplace Relations Act, 1996 (the Commonwealth Act). Nevertheless it is one approach that could be considered and it addresses the requirements specified in Section 30(11) of the Act. [34] We do not make reference to all of the authorities to which we were referred but they have been considered in our determination. [35] The Commissioner found that the termination was unfair. He said:
[36] We agree with his finding. [37] The appellant submitted that the amount of compensation determined by the Commissioner is not attended with appropriate detail as to the amount determined. We are of the view that the Commissioner was required to explain his reasons for such amount and the basis on which it was calculated. We are satisfied that he has provided detail of the matters he has taken into account but has failed to provide the methodology of his assessment. As such, appeal ground 5(a) is found and pursuant to s.71(13)(a) of the Act we vary the amount of compensation contained in the Commissioner's order. [38] Having so decided we now address the amount of compensation we consider should be made to Mr Youd. We are required to take into account the length of service with the employer and the amount of remuneration he would have received had his services not been terminated. We have had regard to those matters. We are of the view that had a proper investigation been undertaken to address the concerns of Mr Youd, and whether or not that investigation had resulted in a positive outcome, it is likely that the employment relationship could have continued for some time. We estimate that time to be a further eight weeks which would have allowed a proper process of investigation and assessment to address the concerns of Mr Youd and Mr Davey. [39] Mr Youd had been terminated prior to the workers compensation claim being made, in any event a return to work, had he not already been terminated, would have been difficult as the problem with the lifting of the heavy pig carcases would have again emerged. Further it is noted that although Mr Youd had a clearance he had indicated that he would not perform the work claimed to have caused his back problem, and we lay no criticism for him so deciding, and as such there was no position for him to resume. [40] Accordingly we determine, pursuant to s.71(13)(a) of the Act, to vary the order of Commissioner Abey, arising out of application T9943 of 2001, by deleting all words appearing after "an amount of" and substituting in lieu thereof the following:- "$6,462.00, being 8 weeks pay ($42,000 divided by 52 multiplied by 8) by way of compensation. Such payment is to be made not later than 5.00pm on 30 August 2002".
P L Leary Appearances: Date and place of hearing: 1 Appeal Transcript PN16 |