Galvin v Renito Pty Ltd [1999] FCA 1005

FEDERAL COURT OF AUSTRALIA

Galvin v Renito Pty Ltd [1999] FCA 1005 INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - unlawful termination - proscribed reason - onus of proof - whether employment terminated for reasons including physical and mental disability; performance as a reason for termination Workplace Relations Act 1996 ss170CE, 170CK, 170CM, 170CQ Industrial Relations Act 1988 ss170DF, 170EDA Conciliation and Arbitration Act 1904 s5(4) Mohazab -v- Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 applied Rheinberger -v- Huxley Marketing Pty Ltd (1996) 67 IR 154 applied Heidt v Chrysler Australia Ltd (1976) 26 FLR 257cited Johns v Gunns Ltd (1995) 60 IR 258 followed Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439 cited Stojanovic -v- The Commonwealth Club Ltd (Industrial Relations Court of Australia, unreported, 8 December 1995) applied General Motors Holden Pty Ltd -v- Bowling (1976) 12 ALR 605 cited JOSHUA GALVIN v RENITO PTY LTD VG 729 of 1998 RYAN JR MELBOURNE 26 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 729 OF 1998

BETWEEN: JOSHUA GALVIN

Applicant

AND: RENITO PTY LTD

Respondent

JUDICIAL REGISTRAR: RYAN

DATE OF ORDER: 26 JULY 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application and claim of unlawful termination of the employment is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 729 OF 1998

BETWEEN: JOSHUA GALVIN

Applicant

AND: RENITO PTY LTD

Respondent

JUDICIAL REGISTRAR: RYAN

DATE: 26 JULY 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Application On 17 September 1998 the applicant applied in the Australian Industrial Relations Commission for relief in respect of termination of employment and identified the grounds on which the application was based as · s170CE(1) - harsh, unjust or unreasonable termination · s170CK - discrimination or other prohibited reasons · s170CM - failure to give statutory notice. 2 On 14 December 1998 Senior Deputy President Watson issued a certificate to the effect that attempts to settle the matter by conciliation had been or were likely to be unsuccessful. On 15 December the applicant's solicitors issued a notice electing to begin proceedings in the Court for an order under s170CR in respect of alleged contravention of s170CK. 3 On 23 December the applicant signed and his solicitors filed a claim of unlawful termination of employment under s170CP. The claimant sought as remedy · compensation · written reference · penalty. 4 The claim was accompanied by a Form 5 application which gave details of claim as follows: "On the grounds stated in the accompanying Claim of Unlawful Termination of Employment in accordance with Form 5A, the applicant claims: 1. An order imposing on the employer a penalty under s170CR(1)(a); 2. An order requiring the employer to pay the applicant an amount of compensation under s170CR(1)(c)." 5 Grounds for Claim of Unlawful Termination The claim, the accompanying claim Form 5A, did not in fact state grounds. The first indication or hint of a possible prohibited reason which could constitute an unlawful termination came in paragraphs 16,17 and 24 of the applicant's affidavit sworn 26 February 1999. In that part of his affidavit the applicant stated that the respondent's general manager, Victoria (Vicki) D'Enett · chased after him on 26 July 1998 after the conclusion of a conference at the Novotel Hotel in Pyrmont and said words to the effect "what's wrong?, you look terrible." · at the respondent's head office in Rushcutter's Bay on 28 July asked him why he "looked so terrible" and whether he "had any personal problems" · as his employment was being terminated at the Richmond office on 11 September 1998 said to him words to the effect "We're worried about your health. You look unwell." 6 Counsel for the applicant opened as follows: "We allege that one of the reasons for the termination of the applicant's employment was in breach of s170CK of the Workplace Relations Act. In particular, we say that one of the reasons for the termination of the employment was a physical and mental disability. The applicant was HIV positive; he does not have AIDS. As a result of his HIV status he was not required or did not take any days off ill during the course of his employment of about 20 months with the employer." 7 The way in which the case was put on behalf of the applicant was, in essence, that · the employment was terminated at the initiative of the employer and the applicant had to demonstrate that to be so and had done so · the applicant alleged that the reasons for termination by the employer included a reason of "physical or mental disability" · the respondent bore an onus to demonstrate that the termination of employment did not include the reason of physical or mental disability · the respondent had failed to discharge the onus · the applicant was entitled to maximum compensation and the Court should impose the maximum penalty available for breach of s170CK. 8 I have assumed that counsel for the applicant also implies that the applicant does not even have to point to any evidence or circumstances which might suggest the possibility of termination for a prohibited reason, although he does suggest in his final submissions (paragraph 19 of reply) that "it is open to the Court to draw reasonable inferences against the employer concerning the reasons for dismissal and in particular that the reason for termination was whatever disability, physical or mental, Vicki D'Enett had in mind at the time." This submission presumably implies that it is reasonable to infer that Ms D'Enett, in using the words "We're worried about your health. You look unwell," had in mind at the time a disability and the termination was for reason which included that disability. 9 Counsel for the applicant asserts · "the applicant need not show that he was in fact suffering from a disability" (reply paragraph 10) · "s170CK applies where there exists a particular reason" (whether or not there be any factual basis for the reason) (reply paragraph 14) · "the focus of the Court should not be diverted to the medical basis of the condition of Mr Galvin, or the knowledge of the employer of that condition. The Court must always remain focused upon the reason of the employer." (reply paragraph 15). 10 Counsel for the applicant draws comfort from s170CQ, the section dealing with proof of issues in relation to alleged contravention of s170CK. 11 S170CQ states: "In any proceedings under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies)." 12 The circumstances surrounding a termination and findings of likely circumstances are matters which are often relevant in determining whether the employer has proved under s170CQ(b) that the reasons for termination did not include a proscribed reason. If an employer includes a proscribed reason in a decision to terminate and in an act of termination the employer will usually be taken to have that reason in contemplation irrespective of whether there is or is not a factual basis for such a reason. 13 The employment and circumstances leading up to termination. The employment and the circumstances leading up to termination can be summarised from the applicant's affidavit of 22 February 1999 as follows. 14 The respondent is a wholesaler of hair and beauty products with three offices in Sydney and two in Melbourne. The applicant was employed from about 20 January 1997 to October 1997 as business manager in the Chatswood office and was then transferred to the Richmond office in Melbourne. He states that his duties included management, employment of staff, co-ordination of staff activities, banking, stock control and "maximising market share". 15 On or about 5 March 1998 the applicant attended a meeting with the general manager, Ms D'Enett, at head office in Rushcutter's Bay. Ms D'Enett advised the applicant that she was unhappy with the administration of the Richmond office. At that time Leanne Kawaji was acting as business manager at Richmond while the applicant was on leave. Ms D'Enett and the applicant discussed some concerns raised by Ms Kawaji in respect of the management of the Richmond office. These concerns included equipment invoices which Ms Kawaji could not find and her firm view that telemarketing and reports on telemarketing were inadequate. 16 The applicant returned to work at Richmond on 15 March and the next day Ms D'Enett arrived and handed him a written memorandum dated 17 March. The memorandum was entitled "Richmond Warehouse Management Performance Review - Warning No. 1". The memorandum was signed by Ms D'Enett as general manager and the applicant also signed as having received it on 17 March. The managing director of the respondent company, Mr Lewis Simmons, gave clear, unequivocal and uncontested evidence that he directed Ms D'Enett to draft the memorandum and deliver it to the applicant.