FEDERAL COURT OF AUSTRALIA Mitchell v Steggles Ltd [1999] FCA 1036 INDUSTRIAL LAW – unfair termination – valid reason – employee terminated after taking leave because of work-related injury and after being declared fit to return to work by the medical practitioner of the insurance company, but just before the employee's treating specialist had examined the employee and also declared him fit for duty EVIDENCE – failure to give evidence – rule in Jones v Dunkel Industrial Relations Act 1988 (Cth) (now known as the Workplace Relations Act 1996 (Cth) ss 170EA, 170DB and 170EE Jones v Dunkel (1959) 101 CLR 298 referred to GARRY JOHN MITCHELL V STEGGLES LTD NO. NI 1224 OF 1996 JUDGE: WALKER JR DATE: 30 JULY 1999 PLACE: SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 1224 OF 1996 BETWEEN: GARRY JOHN MITCHELL Applicant AND: STEGGLES LTD Respondent JUDGE: WALKER JR DATE OF ORDER: 30 JULY 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Respondent has contravened section 170 DE(1) of the Workplace Relations Act 1996 ("the Act") in relation to the Applicant 2. In accordance with section 170 EE of the Act, reinstatement is impracticable 3. In accordance with section 170 DB(2) of the Act, an amount of $1,052.00 is awarded to the Applicant 4. In accordance with section 170 EE(3) of the Act, an amount of $10, 632.00 is payable to the Applicant 5. A total amount of $11, 684.00 is to be paid by the Respondent to the Applicant within twenty-eight working days from today. NOTE: 6. No order as to costs Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 1224 OF 1996 BETWEEN: GARRY JOHN MITCHELL Applicant AND: STEGGLES LTD Respondent JUDGE: WALKER JR DATE: 30 JULY 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application pursuant to s 170EA of the Industrial Relations Act 1988 (Cth), now known as the Workplace Relations Act 1996 (Cth), for unfair termination of employment. The application was filed in the Australian Industrial Relations Commission on 8 February 1996 and, after conciliation was unsuccessful, the matter was referred to the Industrial Relations Court on 15 March 1996. During a subsequent telephone directions hearing, held on 28 March 1996, I noted that the matter appeared to be settled. However, a note from the List Clerk dated 30 March 1999 (attached to the Court file) reveals negotiations for settlement had broken down between the parties and, despite this, the applicant had been frustrated by his union in having this matter brought back before the Court. Eventually, on 30 March 1999, the union contacted the List Clerk and the matter was set down for hearing on 2 June 1999. 2 The applicant, Garry John Mitchell, gave evidence that after leaving school in 1978, he commenced employment as a process worker with the respondent, then known as "Table Talk Chickens". After approximately one year he left this employment and completed an apprenticeship as a refrigeration mechanic. The applicant was then approached by the respondent and offered a position in 1983, which he accepted. Later, in 1984, he was promoted to the position of leading hand. Despite redundancies around 1989, the applicant was retained by the respondent as a freezer hand and a checker. 3 On 25 November 1994, the applicant in the course of his employment was driving a forklift when his left hand was crushed between the vehicle and an RSJ. He gave evidence his hand was trapped for about five minutes and was severely crushed, with his thumb being nearly amputated. As a result, he was required to undergo microsurgery over three days in hospital and then a program of physiotherapy. Later, he also underwent psychological treatment for the trauma, although he says he no longer suffers psychological problems. 4 Around May, 1995 Ms Barbara Atkinson, a rehabilitation officer from MMI Rehabilitation, contacted the applicant, who recounted her saying: "I've been in contact with Steggles at Beresfield. The word 'rehabilitation' is a pre-historic word, there is no such thing." After this conversation, a meeting was arranged between the applicant, Ms Atkinson and Mr Jim Bunce, the Manager on site, scheduled for some time around June 1995 for the purpose of arranging alternative light duties. However, the meeting was unsuccessful. The applicant gave evidence Ms Atkinson subsequently told him she would leave it for three months, but, contrary to this, he never heard from her again. According to the applicant, he began psychological treatment soon after the meeting. His evidence was: "I was having trouble like, with the, you know, the injury because I - it was horrific. Like, when I was trapped for a long time, but a lot of it was that Steggles didn't even ring my - no-one ever contacted me from that day of the injury to this day I'm sitting here. No-one ever contacted me, only for the termination letter I received in the mail…." 5 Towards the end of 1995, the applicant attended the MMI doctor and was advised his hand had healed, enabling his return to work. The applicant stated he informed the doctor he had an appointment to see his specialist very shortly and he was hopeful of getting the green light to return. He gave further evidence that at the time of the appointment with the MMI doctor, he was on the short list for an appointment with his treating specialist and was not able to visit the specialist until 30 January 1996. His workers compensation payments were subsequently stopped after his visit to the MMI medical officer. 6 About one week before his appointment with the treating specialist the applicant arranged a meeting with Mr Bunce. The purpose of the meeting, he said, was just to let Mr Bunce know he was about to see the specialist and he hoped he would be given the clearance to return to work. He attended the meeting with his wife and gave evidence Mr Bunce said the following: "Well he said to me.. don't bring all the good work undone, it has taken a long while to get where you are and just don't worry about your job, you go see the specialist on Friday, you call back in on the way back ..and see me and let me know how it goes." 7 The applicant subsequently attended the specialist on 30 January and was given the clearance to return to work. He immediately telephoned Mr Bunce with the news and was told that he had been terminated and to speak with the Human Resources branch. The following week the applicant received a letter of termination, dated the 29 January, as set out below: "Dear Garry, We note that you have been absent since 25th November '94, and it appears that you will not be resuming work in the near future. Unfortunately, we must advise that we are unable to leave your position vacant, and as such, your employment will be terminated as of Monday 5th February 1996. Your accrued entitlements will be forwarded to you on that date…." 8 The applicant's wife, Michelle Margaret Mitchell, gave evidence that she attended the meeting with her husband and Mr Bunce on or around the 19 January 1996. Her evidence corroborates the applicant's testimony as to the substance of this event. 9 The respondent did not call any witnesses in this matter. Their legal representative, Mr Cook, argued that this was because of the long delay in the matter coming before the Court. He said that witnesses had left the company and, in any event, were not available. He asked that no adverse inference be drawn because of this situation. However, the rule in Jones v. Dunkel (1959) 101 CLR 298 at 308,312 and 320-21 is applicable. That case and the principle it stands for are considered in detail in Cross on Evidence at par [1215]. Cross states the principle as: "[T]he unexplained failure by a party to give evidence..may,..in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party's case. The appropriate circumstances exist where it was within the power of the party to tender the evidence which was not tendered.." However the principle only applies where the particular witness is necessary to explain or contradict issues relevant in the case. Citing West v Government Insurance Office of NSW (1981) 148 CLR 62 at 70, Cross on Evidence also states [1215]: "[T]he explanation must be established by evidence and is not merely to be presumed from the passage of time". Further: "The significance of the inference depends on the closeness of the relationship of the absent witness with the party who did not call the witness" (Also see Earle v Castlemaine District Community Hospital [1974] VR 722 at 728 (FC) and Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt1) (NSW) 557 at 582). The failure to call such evidence may entitle the trier of fact to more readily draw any inference fairly to be drawn from the other evidence, by reason of the opponent being able to prove to the contrary had the party chosen to give evidence. 10 In the present case, there being no witness to contradict the corroborated evidence of the applicant, I can only accept his evidence as to the circumstances of his termination. In such circumstances, there cannot be a valid reason for the termination of employment and I make that finding. Remedy 11 In such a case as this where an employee is terminated for what appears to be no other reason than taking time off on workers compensation to recover from a work-related injury, the Court would usually order re-instatement and compensation for the loss of wages. However, the three-year delay in coming before the Court distinguishes this case. This delay, it would seem, is not exclusively that of the applicants, however s 170 EE of the Act requires the Court to take into consideration, "all the circumstances of the case" before making an order. In doing so I find re-instatement in the circumstances would be impractical and that the appropriate remedy would be an amount of compensation. 12 In assessing compensation I have taken the applicants gross weekly earnings to be $526 per week. As workers compensation payments ceased as at December 1995, I have calculated that the applicant should be awarded these payments until his termination on 5 February 1996. However, there was no evidence led concerning this amount. Also, I am unaware as to whether the applicant was in receipt of an award that would have been below his normal pay. It might be that he has made up these payments when his workers compensation case was finalised. In any case, I have calculated compensation by giving the applicant six months pay from the time of his termination less what he earned in that six months period, ie. $13,701, less the $1,120.19 as per his group certificate, amounting to $10,632, gross. Added to this should be an amount of a further four weeks for notice pursuant to s 170 DB. This brings the total amount of compensation to $11,684 gross. I certify that the preceding thirteen (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of Judicial Registrar Walker. Associate: Dated: 30 July 1999 Solicitor for the Applicant: Ms Jill Yates of Messrs Michael P Carrol & Peter S Knudsen Representative of the Respondent: Mr Greg Cook of the Employers Federation of NSW Date of Hearing: 25 June 1999 Date of Judgment: 3 August 1999