Abonyi, Leah Mary v Australian Postal Corporation [1997] FCA 696

FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - VALID REASON - whether employee made false declaration and failed to disclose pre-existing injury - SERIOUS MISCONDUCT - whether employee's actions constituted reasonable ground to dismiss without notice - DAMAGES - Workplace Relations Act 1996 ss170DB, 170DC, 170DE(1), 170EA, 170EE General Conditions of Employment (Interim) Award 1995 Kacar v Colorpak Packaging Pty Ltd (unreported, IRCA, Murphy JR, 15 May 1995) Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371. ABONYI -V- AUSTRALIAN POSTAL CORPORATION VI 2215 of 1996 PARKINSON JR MELBOURNE 16 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VI 2215 of 1996 ) GENERAL DIVISION ) B E T W E E N: Leah Mary ABONYI Applicant AND: AUSTRALIAN POSTAL CORPORATION Respondent JUDICIAL REGISTRAR : PARKINSON PLACE : MELBOURNE DATED : 16 JULY 1997 MINUTES OF ORDER THE COURT ORDERS THAT: 1. Pursuant to Subsection 170EE(5) of the Workplace Relations Act, 1996, the respondent pay to the applicant the sum of $1036.64 in damages, less any amount deducted on account of PAYE taxation requirements paid to the Australian Taxation Office. 2. Time for compliance is 14 days from the date of this Order. 3. In all other respects the application made pursuant to Section 170EA of the Workplace Relations Act 1996 is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VI 2215 of 1996 ) GENERAL DIVISION ) B E T W E E N: Leah Mary ABONYI Applicant AND: AUSTRALIAN POSTAL CORPORATION Respondent JUDICIAL REGISTRAR : PARKINSON PLACE : MELBOURNE DATED : 16 JULY 1997 REASONS FOR JUDGMENT This is an application made pursuant to Section 170EA of the Workplace Relations Act 1996. The respondent employed the applicant as a postal worker in 1988. In 1990 the applicant left the employment of the respondent to take up employment elsewhere. On 18 June 1990 the applicant was injured in the course of that employment and had entitlements to ongoing compensation and rehabilitation assistance. During the period June 1990 to January 1994 the applicant was receiving medical and rehabilitation assistance. In January, 1994 the applicant was engaged by the respondent to work on a casual basis at the respondent's Greensborough branch, on account of absences from that branch. She performed mainly sorting duties, although she did some driving and delivery duties as needed. The applicant worked for the respondent on a casual basis for approximately 2 months. On 17 February, 1994 the applicant applied for a permanent part time position with the respondent. That position was offered to her subject to satisfactory completion of medical fitness requirements. It was also a position offered subject to completion of a probationary period. The applicant completed the necessary medical report forms and attended for a medical examination. As a consequence of her answers in the forms and the medical examination, the applicant was eligible for permanent appointment to the respondent and she was appointed on a probationary basis to the permanent position. In about July, 1994 her appointment as a permanent employee was confirmed. The applicant remained in the position until the termination of the employment. On 4 May, 1995 the applicant, in the course of her duties delivering mail, fell and sustained an injury, including aggravation of a previous injury. The applicant reported the injury and received treatment. She was absent from work on account of the injury for a period of time. In the course of the progression of her workers compensation entitlements, the applicant was asked by the respondent's workers compensation officer to complete documentation in relation to the injury. The applicant completed the claim material and in the course of doing so, disclosed her previous injury and workers compensation claim. As a consequence of this disclosure, further investigations were made by the respondent in June, 1996, as to its liability for the injury to the extent that it was a pre-existing injury. The respondent ceased liability on the claim at that time partly as a consequence of the applicant not having disclosed the pre-existing injury at the commencement of the employment, on the medical disclosure forms and partly because it contended that the injury sustained in the course of the employment with it had resolved. The applicant's area manager was informed of her failure to disclose her pre existing injury and further information as to the reasons why ongoing workers compensation benefits had been refused. On 13 June, 1996 the respondent's manager, Mr Bill Wilson, decided that the applicant's conduct warranted review, pursuant to the respondent's disciplinary process. It was his view that the applicant was guilty of serious and wilful misconduct, on account of her failure to disclose her medical status on the employment application form. His evidence was that he formed this view because such conduct was seen as serious by the operational arm of the business and also because of the costs incurred by the respondent, as a result of the current workers compensation claim. I also understood his evidence to be that he and others in the respondent believed the applicant was wrongfully in continued receipt of workers compensation benefits, after commencing full time employment with the respondent. It is appropriate to note that there is no evidence in these proceedings to establish that there was any conduct on the part of the applicant which was wrongful or calculated to obtain or retain workers compensation benefits of any kind wrongfully and such material as was presented to the Court was inadequate to found any such allegation. I am satisfied that Mr Hose did not take this matter into account in determining to terminate the employment. On 14 June, 1996,the applicant was suspended from her employment and informed there would be an inquiry into her conduct. She was told the reason for the suspension. By letter dated 14 June, 1996, (Exhibit R4), the applicant was notified that there was to be an inquiry into her conduct, in that she provided a false declaration on her application for employment and pre-employment medical examination details and that she failed to disclose pre-existing conditions, for the purpose of obtaining employment with the respondent. The time and place for the inquiry was specified. It appears from the extract of the General Conditions of Employment (Interim) Award 1995, ('the Award'), provided to the Court, that the process of inquiry is established by way of internal procedures. There is no specific Award provision identifying an inquiry process, nor was any material provided to the Court to identify any relevant regulations in this regard. The inquiry was conducted by Mr Walters, an area manager of the respondent. At that interview the applicant's failure to disclose the pre-existing injury was raised. She explained the failure as an omission or oversight. The recommendation of the delegate was that the employment should be terminated. This recommendation was accepted by Mr Hose, the Regional Manager and by letter dated 25 June, 1996, (Exhibit R6), he advised the applicant that her employment was terminated. Mr Hose's decision was confirmed by a board of reference constituted pursuant to the Award. I shall address the question of s170DC later in this decision, however I turn first to consider the operation of ss170DE(1) of the Act. Subsection 170DE(1) It is not in dispute in these proceedings that the applicant suffered from a pre-existing injury when she commenced the employment with Australia Post. Further it is not in dispute that the applicant failed to disclose that injury at the time she filled out the application form for a permanent position. There is no evidence of the respondent as to what its response would have been in the event that the form had been accurately completed. The applicant's explanation to the Court for her failure to disclose the pre-existing injury was that she believed that she no longer suffered from the injury and that she had misread the disclosure form, understanding it to require disclosure only of current conditions. Her evidence was that it was an omission as a consequence of failing to properly read the document, rather than a deliberate attempt to mislead the respondent.