Jessica Christine Marie v Challenge Plastics Joint Venture Pty Ltd [1995] IRCA 144

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1825 of 1994 B E T W E E N : JESSICA CHRISTINE MARIE Applicant AND CHALLENGE PLASTICS JOINT VENTURE PTY LTD Respondent Before: Judicial Registrar Murphy Place: Melbourne Date: 24 March 1995 REASONS FOR JUDGMENT (EX TEMPORE, REVISED FROM DRAFT TRANSCRIPT) The Applicant's Evidence The applicant in these proceedings commenced work with the respondent on 22 June 1994 as an accounts clerk. The respondent conducts a manufacturing business at Moorabbin and has a small upstairs office section. The staff consists of an office manager, Mrs Myers ("Myers"), a receptionist Mrs Arnold ("Arnold") and an accounts clerk, who was the applicant from that day. Her duties involved working on a computer, and phone duties chasing up debtors, as well as other clerical functions, including banking and attending the post office. She worked upstairs in her own office. The uncontested evidence was that it was a busy job, vital to the respondent's operation. Some months prior to the applicant commencing employment, she booked a 10 day holiday in Hawaii to be taken in September 1994. She did not mention the holiday to Myers when she was interviewed for the position. She had outlaid some $1600. About a month after she commenced work she raised with Arnold the question of leave for the holiday. Arnold explained to her that she would not be eligible because she had just started work and that holidays were taken during the Christmas factory close down. The applicant's evidence however was that Arnold said it was okay. The applicant then raised the matter with Myers, who told her that they would be able to work around it. The applicant said that Myers made reference to her providing a medical certificate for a week and that it would be okay. She said that as a result of the conversation she believed she could go on the trip. In cross-examination she admitted that she had raised the question of the provision of a medical certificate to cover the period of absence. Myers' version of the conversation, is that after she indicated it would be impossible to authorise the leave, the applicant said, in a flippant manner, words to the effect: If I am sick for two weeks you'd have to accept it, wouldn't you. Myers denied giving her permission to take the holiday leave or giving her any indication that she would accept a false medical certificate. She made it clear that she needed the applicant and that holidays were at Christmas. She denied ever saying anything about working around a one week medical certificate. Nothing more was said about the holiday. The applicant gave evidence that she told Arnold after the meeting that Myers had agreed to the trip, Arnold denied this. On 14 August, while at a football match at the MCG, the applicant tripped and injured her back and knee. She was treated at St Vincent's Hospital Outpatients Department. She was x-rayed, given crutches and an appointment made to attend the orthopaedic Outpatients Department. Her left knee was swollen. She gave evidence that a medical certificate was issued to her. On Monday 15 August, she arranged for her then boyfriend to contact the respondent to advise the respondent that she was having some time off due to the injury. The applicant attended at the factory during that week. She claimed in her evidence that he handed a medical certificate to Arnold. Arnold denied this. She also claimed that in the second week she had a phone conversation with Myers during which she said that she would be off work for up to six weeks and that she would produce a medical certificate to cover the period when she returned. She further claimed that in that phone conversation Myers raised with her whether she was going on the trip and the applicant replied that she might go for a week. In cross-examination the applicant admitted that she was told in her conversation with Myers that she was to keep in touch with the factory and to submit medical certificates. She denied being asked, in the conversation with Myers, that she was to return the keys she held. The applicant said later in her evidence that in the conversation with Myers, Myers had made no mention about supplying medical certificates. She had claimed earlier in her evidence that she had told Myers that her GP Dr Tran was supplying her with a certificate for sickness benefit and that she would supply Myers with a medical certificate at the end of her incapacity. She said that following the accident, she went to the physiotherapist at St Vincent's Hospital about five times. She also gave evidence that she returned to St Vincent's casualty on 28 August, after her knee flared up at a nightclub. She gave evidence that she did not contact the respondent again after a phone call to Myers in the second week after the accident. She felt she had no need to. Her knee was still troubling her at that time. She saw Dr Tran for a third time and discussed the trip to Hawaii with him. He encouraged her to take it because the knee would be better in the warm climate. She went overseas from about 10 September to 23 September. When she returned she saw Dr Tran again, who gave her a clearance to return to work. She said that in the period up until 23 September she was unfit for work. She also said that over that period she had received no communications from her employer. She gave evidence that she had advised Myers after the injury, that she had moved her address and moved in with her mother and had given here mother's phone number to Myers. The applicant returned to work on 26 September 1994 and presented a back dated medical certificate. She was told her job had been filled. She was later given a separation certificate and paid some accrued holiday pay. About two weeks later she reinjured her knee and she has been seeing doctors about it since then. It is still troubling her from time to time. The applicant's mother gave evidence that she attended at the premises soon after the accident and told Myers that her daughter could be off for four to six weeks. She also said she handed a medical certificate to Arnold but she admitted she had not read it. She said that she had ferried the daughter to physiotherapy at St Vincent's Hospital on a number of occasions. She said that the only contact she had with the respondent was a phone call from Arnold about five weeks after the accident. She denied receiving a number of calls asking after her daughter and requiring her daughter to return the keys. She said she was in contact with her daughter while the daughter was off work and that she knew about the daughter's proposed trip to Hawaii. A general practitioner, Dr Tran, gave evidence that he first saw the applicant a day after the injury. At that stage the knee was swollen. He prescribed antibiotics and anti inflammatory medication, as well as pain killers. He was informed that the applicant had been to St Vincent's Hospital and was to attend the orthopaedic outpatients clinic. He was not sure whether he gave her a medical certificate to cover her for the period until she returned to St Vincent's. She next saw him on 29 August. She was still complaining of pain and advised the doctor that she was attending physiotherapy. He gave her a certificate for two weeks. He was not sure whether the certificate was to be given to the Department of Social Security or the employer, or both. He was advised by the applicant that her duties involved walking up and down stairs and that there were no alternative duties. She returned to him on 10 September and complained of pain on walking. He gave her another certificate for two weeks. He was advised by the applicant that she could not return to work because of the difficulties with stairs. He next saw the applicant when she attended on him on 23 September when she was walking freely. He said to her that she should go back to work. At the request of the applicant he issued a certificate which stated: This is to certify that Miss Marie Jessica is suffering from illness and will be unfit for work from 29 August 1994 to 23 September 1994. Signed Dr Tran. Dr Tran was extensively cross-examined in relation to his role and the history which he had received. He gave evidence as to the difficulties of properly evaluating the degree of seriousness of soft tissue injuries, such as knee injuries. He indicated that he was reliant on the history provided by the patient. He was also reliant on the fact that the applicant had been referred to the orthopaedic clinic of the hospital which showed a view of the seriousness of her injury. He gave evidence that he had extensive experience in working as a registrar in public hospitals. He admitted that he did not conduct an extensive examination of the applicant and to some extent was relying on and acting in a supportive role to the hospital. Dr Tran was emphatic on a number of matters however. The first was that he did not indicate to the applicant any estimated duration of her injuries during his consultations. He stated that the prognosis had to be considered on the one to two weeks at a time. Further, he was at no time told of the trip to Hawaii. If he had been told he would not have issued a certificate over that period. He was issuing certificates to allow the applicant to claim sickness benefit and stated that it was wrong that she would claim sickness benefit while on holiday. He defended issuing the back dated certificate. He had already issued sickness benefits for that period, and on the basis of what he had been told by the applicant, she was unable to return to a job which involved a lot of walking and stairs. He did admit that it could have been differently worded. It was his evidence that in assessing incapacity for soft tissue injuries, a medical practitioner is reliant on the honesty of the patient in the first instance. If a patient states that there are symptoms then it is only after a reasonable period of time has elapsed that a query would arise as too whether or not the symptoms were genuine. Dr Tran also said that in determining capacity for work he was dependant on information as to the nature of the work as supplied by the patient. Here he was under the impression that the duties involved stairs and walking. It was his practice to encourage patients to return to work if suitable duties were available. Respondent's Evidence The respondent's evidence on crucial issues was significantly different from that of the applicant. Myers gave evidence that she employed the applicant, was happy with her performance in what was a busy job, and one that she had difficulty in filling in the past. The applicant had raised the question of the holiday and she had made it clear that it could not be authorised. She denied saying that she could work around a medical certificate. After the applicant suffered her injury she saw the applicant a few days later at the office. In that conversation she asked the applicant to keep in touch and to provide medical certificates. She had a conversation with the applicant's mother the next week and had told the mother to ask the applicant to give her a call, get medical certificates and drop the keys back. She gave evidence of a search of the premises, which had failed to turn up any medical certificates. Myers also gave evidence that she received a couple of calls from a travel agent seeking to ascertain the applicant's phone number. Myers recalled that at some stage the applicant had mentioned being away for four weeks. In cross-examination she said it was up to four weeks or two to four weeks. She denied ever telling the applicant that she could provide a certificate at the end of the time she was away. During the third week of the applicant's absence she formed the view that the applicant would not return. She then made arrangements to replace her because she was working long hours and could not cover the continued absence. I accept her evidence that she did not expect the applicant back and it was an oversight that the holiday pay, which the applicant had accrued, had not been forwarded to her. I also find that Myers considered writing to the applicant but did not do so on the basis that she had no current address and the only contact was the applicant's mother's phone number. Both Myers and Barry, the factory manager who gave evidence, said that they had previous experience of employees just disappearing. They were of the view that the respondent's operations could not continue properly without a replacement for the applicant. Medical Certificates The applicant sought to tender two medical reports and a copy medical certificate from St Vincent's Hospital. The respondent objected on the basis that those documents were not properly proved. The copy medical certificate from St Vincent's Hospital is dated 22 August 1994. The medical report is also from St Vincent's and is dated 19 October 1994 and addressed to the applicant's solicitors. There is also a medical report dated 21 November 1994 from Dr Tran. I am of the view that each of the documents is admissible under the rules relating to documentary evidence. The calling of the makers of the documents is not necessary as it is unlikely that they would be able to remember the circumstances of the making of the document. Dr Tran's report is admissible on the basis that he gave evidence that he had supplied a medical report in any event. If I am wrong in my ruling about the admissibility of the documents, I would rule that they are admissible in any event under Order 33, Rule 3(b) of the Rules of the Court. Assessment of Witnesses The applicant was the subject of a sustained attack on her credit by counsel for the respondent. That attack was successful in severely damaging the applicant's credit and I am not prepared to rely on her evidence when it is contradicted by other witnesses. The evidence of the applicant's mother was also attacked and again, I do not rely on her evidence. In contrast, the witnesses for the respondent were impressive and their credit was not damaged in cross-examination. In particular, Myers struck me as an honest witness with a genuine concern for the applicant, but who was let down by her. I further accept Arnold's evidence that she was never handed any medical certificate by either the applicant or her mother. I accept Dr Tran's evidence. He freely admitted that he was dependant on the history provided by the applicant. The Findings From the evidence I make the following findings: I find that the applicant was told by Myers that her holiday would not be approved. She then raised the possibility of presenting the respondent with a medical certificate to cover the absence. I find that Myers made the respondent's position in relation to the holiday perfectly clear to the applicant. I further find that the applicant failed at any time to supply to the respondent any medical certificates covering her period of absence. I further find that in a conversation with Myers she was told to keep in touch and to supply medical certificates. I find that she was also requested to return the keys and that Arnold phoned her mother on a number of occasions asking her to contact the respondent and to return the keys. I further find that at no stage was the applicant told by Myers that she could supply medical certificates when she returned and that she could not have been under any misapprehension in relation to this matter. I find that the applicant at no stage advised Dr Tran of her overseas trip. Had he been so advised he would not have supplied the medical certificate to the Department of Social Security covering the period of absence from 10 September. I find that there was no contact by the applicant with the respondent after the second week after her accident until 26 September 1994. I also find that the applicant suppressed from Dr Tran the true nature of her duties. The duties were essentially sedentary and could have been performed by her without the need to move around, had there been any request by her to the respondent to do that after the severe period of her injury expired. This was about two weeks after the original incident. I find that due to the failure of the applicant to contact the respondent, the respondent proceeded to fill her position with a replacement employee commencing on 13 September. I find that it was an oversight by Myers that the applicant's accrued holiday pay entitlements had not been forwarded to her. Has there been a termination of employment at the initiative of the employer? For the Court to have jurisdiction there must be a termination of employment at the initiative of the employer. The relevant test has been considered by the Court in the case of Grout v Gunadah Shire Council (1994)125 ALR 355. At 371 Moore J quotes from two decisions of the Court where slightly different tests are adopted by Wilcox CJ and by Gray J. At 372 he says: On the approach of Wilcox CJ it is necessary to ask whether the employer terminated the employment relationship, and on the approach of Gray J it is necessary to ask whether the employer has done some act terminating or purporting to terminate the employment. On either approach the answer is, in my opinion, the same in this matter and it is unnecessary for me to express a preference between the two approaches. The learned judge then goes on to indicate that the Act is to be construed remedially and says: A principal purpose, if not the sole purpose, of Division 3, is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation in the present are not situations whether your termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer. Applying the requirements set out by Moore J, I find that the action which resulted in the cessation of employment here was not that of the employer. In circumstances where the employer has conveyed to the applicant a requirement to provide medical certificates, to keep in touch; and has attempted to contact the applicant in the only way possible, namely by phone to her mother, I find that the operative cause for the cessation of employment here was the actions of the applicant. The respondent had not done any act purporting to terminate the employment. I reject the argument that the respondent should have written to the applicant's last known address. I also reject the argument that the employer had acted precipitately by filling the applicant's position on 13 September 1994. By that stage, on the applicant's own version, the employer had not heard from her for about two weeks and had not been provided with any medical certificates. In addition the respondent had made a number of calls to the applicant's mother. The position may have been different had the calls not been made to the mother. The applicant had a powerful reason not to contact the respondent after her injury because she knew that the respondent would not authorise leave for the holiday. This provided a motive for her to fail to give frank information to Dr Tran and to fail to return calls from her employer. Having rejected her evidence that she was given permission by Myers to hand in medical certificates at the end of the period of incapacity, she had a motive to lie low and hope that when she did return from the holiday her position had not been filled. Contrary to the submission by counsel for the applicant it was the applicant and not the respondent who took a calculated risk in this matter. The respondent was entitled in the face of the actions by the applicant and its own business requirements to treat her as having abandoned her employment. I am conscious that this legislation is remedial. However, the law of contract requires the application of an objective test. Applying an objective test to the facts I have found, I am satisfied that from at least early September there was no relationship of employer and employee between the parties. I note that in a recent decision Liddell v Lembke (1994) 127 ALR 342, at 368 Gray J says that: The common law relating to contracts of employment is not imported into the provisions of the Industrial Relations Act. Having regard to that comment I should also indicate that if I am wrong in my finding that it was the act of the applicant which terminated the employment, I am of the opinion that I could not be satisfied that the employer has breached the Act. The applicant has failed to comply with Regulation 30D of the Industrial Relations Regulations in relation to the provision of medical certificates and this means that she cannot rely on section 170DF (a) of the act to allege that she had been terminated during a period of temporary absence from work because of illness or injury. I am further of the view that the termination in the circumstances was for a valid reason under s170DE(1), namely her abandonment of employment. I refer to the case of Federated Municipal and Shire Council Employees Union of Australia, New South Wales Division v Sydney City Council (1987) 23 IR 454. In that case at 459 Commissioner Connor said: There would not be, in my opinion, a more spectacular example of an act striking at the "essential element of a contract of service" as an abandonment of employment by an employee without prior notice to an employer. It follows from this that I reject the applicant's argument that there has been a breach of section 170DE (1) of the Act. I also reject the applicant's argument that there has been a breach of section 170DB of the Act due to a failure to give notice of termination. It was not reasonable to require the employer to give the applicant notice. I further find that in the circumstances the termination of the applicant's employment would not be harsh, unjust or unreasonable due to the matters relating to her lack of contact between herself and the employer and the needs of the respondent which I have referred to earlier. On this alternative basis then the applicant had not made out a case. For all these reasons I propose to dismiss the application. Order of the court: The application is dismissed.