IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI 1324 of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N: BETTY FULLER Applicant A N D LAW INSTITUTE OF VICTORIA Respondent Reasons for Judgment 17 February 1995 PARKINSON JR This is an application made pursuant to S170EA of the Industrial Relations Act 1988 ("the Act") arising out of the termination of the applicant's employment on 29 July 1994. The applicant seeks the following remedies: 1. An order declaring the termination of the employer's employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988; 2. An order requiring the respondent to reinstate the employee in employment; 3. an order that the respondent pay compensation to the employee. The hearing of this matter took place over four days and the following witnesses were called to give evidence: Betty Fuller - the applicant Elsa Brown - vocational counsellor Robert Cornell - Executive Director, Law Institute of Victoria Neil Collins - Secretary to the Costing manager Rina Harber - Director of Services, Law Institute of Victoria Marija Johnson - Manager, Costing Department John Gibney - LawCare counsellor Roy Kriegler - Human Resources Manager, Law Institute of Victoria Background and Findings of Fact The applicant was initially employed by the respondent on a temporary basis in late 1990. After the term of this employment expired the applicant was employed, subject to a three month probationary period, on a permanent basis in the respondent's Costing department. This employment commenced on 20 December 1990. The applicant is hearing impaired and, as a result, has a degree of associated speech impairment. Notwithstanding these difficulties she is able to communicate competently. The major problem she appears to encounter is that of communicating by telephone, particularly with persons whose voices are unfamiliar to her. The evidence of Ms Brown, a vocational counsellor who assisted the applicant with job placement, was that whilst the applicant could handle telephone communication it was "not a good idea to make it a large part of her work" (T. 100.20). The applicant was employed as secretary to the Costing department. She was employed by the respondent to provide administrative assistance in that department. The Costing department provides costing services for fee to legal practitioners in the State of Victoria and its work supply is almost exclusively generated in this manner. The evidence was that there was a limited amount of telephone work required in this position. In December 1990 the Costing department employed three staff members: the manager of the costing department, Ms Johnson; her assistant Mr Neil Collins, and the applicant. The staffing arrangements remained the same in that department until the applicant temporarily left that department on 22 April 1994. Ms Johnson's evidence was that during 1993 there had been a sharp decline in the amount of work being referred to the department for costing. To some extent she sought to recover lost revenue by organising and running seminars on costing issues for practitioners. Her evidence was that this was successful in the short term but did not substitute for the dramatic reduction in costing work which had occurred and which remained the case throughout 1994. I accept the respondent's evidence that there was a substantial decline in work in the Costing department, and that this resulted in there being a capacity for the department to operate with one less employee. As a result of an ongoing decline in the relationship between the applicant and Ms Johnson, the circumstances of which are considered more fully later in this decision, the applicant was temporarily transferred from the Costing department to the administration department. Ms Johnson's evidence was that it was after the applicant had left the department that it became apparent that there was no longer a need for a third person in that department. The applicant alleges that her termination of employment arose from her deteriorating relationship with Ms Johnson and that redundancy was merely a guise. She further alleges that integral to the deterioration of the relationship was the conduct of Ms Johnson which the applicant classifies as both sexual harassment and also discrimination against her on the basis of her disability. The respondent contends that this was a case of redundancy and that the reality of the work load decline and the lack of necessity for the applicant's position in the department only became obvious because she had been transferred. The respondent says that any work performance issues were such that it made it more difficult to redeploy the applicant, but that those issues were not the reason for the termination. Because of the circumstances of the temporary transfer and its proximity in time to the decision to terminate the employment, it is necessary to consider what if any influence the issue of the relationship between the applicant and her supervisor had upon the decision that her position was redundant and that her employment was consequently terminated. With this in mind, I turn now to consider the issues which arose between the applicant and Ms Johnson and the various matters which appear to have impacted upon that relationship in a negative manner. During the period of the applicant's employment in the Costing area there was a regular review of performance undertaken by the respondent as part of a joint performance appraisal. The applicant's performance was subject to these reviews and overall, despite some reservations contained in these appraisals as to the level of skill achieved, particularly in relation to the word processing system and the level of supervision and support required from Mr Collins, the applicant's work performance appears to have been recorded as satisfactory to her supervisor, Ms Johnson (Exhibits F1, F2 and F3). Nevertheless there is evidence which establishes that the applicant reacted negatively to any criticisms of her work performance. The evidence was that there was a decline in the applicant's work performance in early 1994 which resulted in discussions between Ms Harber, the Director of Services, and Ms Johnson; Ms Harber and the applicant, and Ms Johnson and the applicant. Ms Harber's evidence which I accept was that there seemed to be no acceptance by the applicant of the validity of any of the concerns expressed as to her performance. Consequently it was decided that the applicant ought be warned as to her work performance. The difficulty which arose in terms of the applicant's relationship with her supervisor arose as a result of her reaction to issues being raised in the course of the performance appraisals, and her approach to criticism in general. The evidence of the respondent is that the applicant responded negatively to any criticism of her work performance and that this response resulted in tension between the applicant and her supervisor. The applicant's evidence is that she found Ms Johnson extremely difficult to work with and that the latter intimidated and harassed her. The applicant's evidence was that she complained of Ms Johnson to Dr Kriegler on a number of occasions during the period of her employment. The extent of the evidence of the complaints was that the applicant found Ms Johnson a difficult person to work with, and on various occasions over the period of employment the applicant sought to be transferred to another department. As a result of an ongoing decline in the relationship between the applicant and Ms Johnson including a verbal confrontation occurring on 31 March 1994 between the applicant and Ms Johnson, the applicant was temporarily transferred from the Costing department to the administration department to, in the words of Mr Kriegler, "enable things to cool off". The verbal confrontation occurred as a result of a direction by the respondent that the applicant undertake an externally conducted skills assessment due to concerns which were expressed to the applicant as to her work performance. Subsequent to this confrontation a warning letter as to work performance was provided to the applicant (Exhibit F6). Whilst there was in these proceedings an issue as to work performance and the accuracy of the relevant performance appraisals the reason for the termination was not poor work performance, although it is likely that the applicant's skill level did in some respects make redeployment more difficult. I am satisfied that the circumstances associated with the relationship between the applicant and her supervisor Ms Johnson led to the transfer of the applicant and thus the identification of the surplus position in the Costing department. I am satisfied that the applicant's position was redundant and that the decision made to terminate the applicant's employment was made as a result of the operational requirements of the respondent. I turn now to consider the issue of the alleged discrimination. Allegation of Discrimination and termination as a result of disability and sex - S170DF(1) and (2) The applicant says that her disability was a factor in the termination of her employment and says further that a reason for the termination of her employment was because of matters involving conduct constituting sexual harassment. S170DF(1) provides in so far as presently relevant: "An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: ... (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status , family responsibilities, pregnancy, political opinion, national extraction or social origin". Whilst clearly the onus of proving that such matters did not form part of the reason for the termination rests with the respondent, in this matter the respondent has identified the matters which were the reasons for the termination. The respondent's evidence was extensive as to its operational requirements. I accept the respondent's evidence in this regard and I now deal with these issues in more detail. Disability The issue of the applicant's hearing impairment is relevant to these proceedings in only one respect, and that is regarding the attempts made by the respondent to obtain alternative employment or redeployment for the applicant when her position was made redundant, and the reasonableness of those attempts. It is in this context that S170DF(1)(f) is to be considered. The applicant contends that one of the reasons for her termination was her disability and in this regard relies upon the fact that other vacancies existed in the respondent to which, if not for her disability, she could have been redeployed. I am satisfied that S170DF(1)(f) does not preclude the respondent from taking into account the applicant's disability in deciding her suitability or otherwise for an alternative position. This is because of the operation of S170DF(2). S170DF(2) provides: "Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position." I am satisfied that S170DF(1)(f) extends to and contemplates circumstances where a decision to terminate is based upon the respondent not being able to find the applicant suitable alternative employment due to his or her disability and termination occurs. But in my view S170DF(2) entitles the respondent to take into account that disability for the purpose of the inherent requirements of the particular position. I find therefore that the respondent has not, in relation to disability, contravened S170DF(1)(f) of the Act. Termination due to sex - Sexual Harassment: In view of the serious nature of the allegations against the applicant's supervisor it is appropriate to record that there is simply no evidence that there was any conduct on Ms Johnson's part which constituted conduct of a sexual nature or sexual harassment. Further, on any view of the evidence the incidents alleged as constituting such conduct were normal examples of social interaction between persons in employment, and nothing more than that. In coming to this conclusion I have taken into account the following matters which I view as significant: - Whilst the applicant alleges that the harassment continued over a period of approximately three years and related not only to the conduct of Ms Johnson but also other employees of the respondent, there was no complaint of harassment of a sexual nature or any other nature made by the applicant during the entire period of her employment to the date of termination. - The respondent had a clear policy, articulated to its employees, prohibiting sexual harassment in the workplace, and a mechanism established to investigate any complaints of such a nature which were made. The evidence was that such complaints which had been made were investigated and dealt with appropriately. The applicant was aware of this procedure. No attempt was made by the applicant at any time during the course of her employment to utilise the process. - The conduct complained of by the applicant was never raised by the applicant with the person or persons concerned either directly or indirectly. - The conduct complained of was at its worst conduct which may have constituted a lack of respect for the applicant's demanding standards as to privacy and in particular what constituted her "personal affairs". - I am further of the view that the applicant entirely misconstrued the nature of any physical proximity between herself and Ms Johnson, particularly on one occasion when the latter merely attempted to help the applicant attend to minor injuries she had sustained in a fall at the workplace. This was the only evidence of any type of physical contact between the applicant and Ms Johnson during the entire course of the employment. In my view none of the incidents raised by the applicant, nor the examples of conduct, constitute either sexual harassment or any other harassment. - During the proceedings the applicant articulated the sexual harassment in various ways but with no specific examples of conduct which would constitute sexual harassment. This included allegations such as stalking when she said: (T.53.25) " Well in fact it was the commissioner who told me it was sexual harassment....so then I wanted to call it sexual harassment of stalking." The applicant further articulated the complaint as "focusing on me" and her evidence was that on 30 March 1994 she had spoken of this aspect of the matter to Mr Cornell, the respondent's Executive Director, at a meeting she had arranged with him. Mr Cornell does not recall any such meeting on that day. In any event, his evidence was that the substance of the conversations he did have with the applicant related to personality and managerial or supervisory problems between the applicant and Ms Johnson. I accept this evidence and note that it is consistent with the evidence of Dr Kriegler and Ms Harber as to the applicant's relationship with her supervisor and the content of any complaints she may have made. - The applicant did not complain to anyone about any harassment during the entire period of her employment in any terms which could be interpreted by a reasonable person informed as to the nature of sexual harassment as a complaint of that kind. - The complaints made to Mr Kriegler were in the nature of a difficulty in getting on with Ms Johnson. This is consistent with the applicant's evidence that people had acknowledged Ms Johnson as a "difficult person to get on with." I am not satisfied on the evidence that this was so, however even if it were, I am satisfied that the personality of the applicant was likely to be equally a contributor to any difficulties in communication which existed between them and in the end resulted in a total breakdown of communication and the applicant's transfer. Having regard to the above matters and S170DF(2) of the Act, I am satisfied that the respondent did have a valid reason for the termination of the applicant's employment, and that the reason for termination did not include matters prohibited by operation of S170DF(1)(e) or (f) of the Act. Harsh, Unjust or Unreasonable - S170DE(2) Having found that the respondent did have a valid reason for the termination of the employment of the applicant being connected with its operational requirements, it is necessary to now consider whether in all the circumstances the termination of the employment was harsh, unjust or unreasonable. In a case of redundancy the termination may be harsh if sufficient investigation of alternatives to termination of employment have not been considered by the respondent. Each case will of course depend upon its own particular circumstances and there is no general rule as to what is required in terms of such investigation of alternatives. The applicant acknowledged in her evidence that there was difficulty for her utilising the telephone. The applicant contends that the respondent's Human Resources Manager and its Director of Services, both of whom were engaged in attempting to find alternative employment for her, focused on her disabilities rather than her abilities. In this respect I have carefully considered the evidence of all witnesses in relation to the steps taken, and am satisfied that the following steps were taken by the respondent in the period April, 1994 to August, 1994. These steps were taken consequent upon an attempt by the respondent to find an internal transfer for the applicant and also when it became apparent that there was no necessity for the position in the costing department. Those steps were: An assessment of the skills and capacity of the applicant. An assessment of the limitations in the applicant's skills and capacity as result of her hearing disability. An assessment of all of the positions within the respondent which had the potential to be suitable for the applicant. A consideration of possible job re-organisation which would accommodate the disability of the applicant. A consideration of possible composite positions. A consideration of part-time employment. A consideration of possible sources of employment outside of the respondent and attempts to obtain such employment. In addition there had been ongoing discussions with the applicant as to possible alternative employment options, and those discussions continued during this period. Whilst the applicant's evidence was that during this period of time, and even immediately after the termination of her employment for redundancy, the respondent was advertising and filling vacant positions, I am satisfied that these positions had been considered for the applicant but that they were unsuitable for the applicant, having regard to her skills, qualifications and the limitations upon her ability to conduct business over the telephone. The applicant was informed by Mr Kriegler on 6 June 1994 that there would be no return to the Costing department and that her position was redundant. Discussions were held with the applicant as to the steps which were being taken in an attempt to find her alternative employment. In correspondence to the respondent dated 5 July 1994 the applicant acknowledged the attempts that were being made to find her an alternative position (Exhibit F10). On 26 July 1994 the applicant was informed that no alternative position could be found for her and that her employment was to be terminated due to redundancy (Exhibit F11). The applicant was paid three weeks pay in lieu of notice and seven weeks in severance payment due to her redundancy. In the present case I am satisfied that the respondent took all appropriate steps to find alternative employment opportunities for the applicant. I am satisfied that the termination was not harsh in this respect. However this is not the end of consideration of this provision. During the course of submissions I asked counsel for the respondent what regard ought be had to the disability of the applicant in determining the question of whether the termination was harsh, unjust or unreasonable. In other words, in view of the disability of the applicant was the respondent under any greater or different obligation to that which would apply in respect of an employee who did not have a disability who was to be made redundant. The submission of the respondent's counsel was that the obligation in respect of disability extends only so far as the extent of the provisions in S170DF(1) of the Act. That is, provided the respondent did not discriminate on the basis of disability, other than taking into account the particular requirements of the job, there is no basis for requiring better or different treatment and that S170DE (2) ought not be interpreted as operating to impose any requirements beyond those in S170DF(1)(f). I do not agree that the term "harsh, unjust or unreasonable" in S170DE(2) is to be limited in the manner contended for by the respondent. There has been a great deal of consideration of the meaning of the words "harsh, unjust or unreasonable" in the circumstance of various Federal and State Courts and tribunals considering termination of employment. In my view the authorities make it clear that the individual circumstances of the applicant, and any deleterious effect having regard to those circumstances which the decision to terminate might have on that person, are relevant matters to take into account in determining whether the dismissal is for example, harsh. See in this regard Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20 at 28. In considering the application of the word "harsh" in the term "harsh, unjust or unreasonable", their Honours Heerey and Sheppard JJ said: " We agree with the learned trial judge's view that the court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of the decision upon the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct." (Emphasis added). In this matter the impact of the termination of the employment on the applicant is obviously likely to be of more severe effect than on persons with unimpaired hearing. That is obvious from the evidence of the respondent's witnesses in terms of their attempts to find the applicant suitable alternative employment, both within and outside the Institute. The only reason that they were unable to do so was because of her hearing impairment. It was submitted on behalf of the respondent that to require an employer to have regard to the impact of the termination on the applicant because of her disability would result in employers not hiring persons with disabilities (T. 303.15). I do not accept that this is the approach which would be taken by the majority of employers and, in any event, I am of the view that it is not a relevant consideration in applying the provisions of S170DE(2) of the Act. Not to give consideration to the impact upon the particular individual having regard to her disabilities would be to place her in a different class to persons not suffering from a disability. Why should considerations of the impact upon her not be relevant, yet considerations of harshness because of the particular circumstances of a person with little English, education or training be relevant considerations? I am of the view that the disability of the applicant is a significant matter in considering whether the termination of the applicant's employment was harsh. I am however satisfied that there was sufficient consideration given by the respondent to the impact of the termination on the applicant, and that the respondent provided to the applicant a reasonable period of time to adjust to the decision that there was no alternative position into which she might be redeployed. In addition to the payments made upon termination, the effective date of which was 5 August 1994, of three weeks pay in lieu of notice and seven weeks severance payment, the applicant had been on notice as to her redundancy from 6 June 1994. I am not satisfied having regard to the extensive measures taken by the respondent to obtain alternative employment for the applicant and the time frames within which this occurred, that the termination of the employment was harsh, unjust or unreasonable. Having regard to the above matters the application must fail. I dismiss the application. I certify that this and the preceding eighteen (18) pages are a true copy of the reasons for judgment of Judicial Registrar Parkinson. Associate: Dated: 17 February 1995 Applicant in person Solicitors for the respondent: Arthur Robinson & Hedderwick Counsel for the respondent: Mr J Riekert Dates of hearing: 21, 22 December 1994 and 24, 27 January 1995 Date of judgment: 17 February 1995