DECISION NO: 194/95 CATCHWORDS INDUSTRIAL LAW ‑ Termination of employment ‑ claim of unlawful termination ­work place injury ‑ compliance with ss170DC, 170DE,170DF ‑ inherent requirements of particular position. INDUSTRIAL RELATIONS COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY AT DARWIN No DI 142 of 1994 Between: LINDA JAYNE DEMPSTER (Applicant) And LAMPREY PTY LTD (ACN 009 654 559) trading as CASUARINA TAVERN (Respondent) Application for: Declaration of contravention of Division 3, Part VIA of the Industrial Relations Act; Reinstatement; Compensation. Decision By: Judicial Registrar Jenny Blokland Date of Decision: May 10 1995. Orders Made: (1) That the termination of employment contravened Division 3, Part VIA of the Industrial Relations Act. (2) That the respondent pay to the applicant the sum of $3000 compensation within 21 days of the date of this order. Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. REASONS FOR JUDGMENT The parties to the dispute The applicant Linda Jayne Dempster commenced employment with the respondent as a kitchen hand at the Casuarina Tavern on 10 April 1992. Although at some stage in the course of the employment relationship a member of the management staff attempted to treat the applicant as a casual employee, it was not disputed at the hearing of this matter that the applicant was employed on a permanent basis. The respondents, Lamprey Pty Ltd were originally owned by JTR Investments. JTR was the ultimate share holder in Lamprey Pty Ltd. JTR Investments sold Lamprey Pty Ltd to Power Pacific. I am advised by Mr Roussos, counsel for the respondents that Lamprey Pty Ltd remain the relevant legal personality after the various changes in control of shares of the company. It will become apparent in the course of these reasons for judgment that the day to day management of the Casuarina Tavern changed a number of times during the relevant period. The various changes of management, did not necessarily reflect the changes in ownership of the respondent company in a precise way. The original duties of the applicant as kitchen hand comprised setting up the kitchen in the morning, making preparations for the chefs, preparing entrees and generally assisting the chef. At that stage the applicant earnt between $300 and $500 per week. The injury at work On 29 July 1992 the applicant suffered an injury at work when she was changing deep friers. The injury was to her right knee. She made a claim for workers compensation against the Casuarina Tavern on 30 July 1992: (Exhibit R1, Workers Compensation Claim). The claim was accepted by the respondent's insurers, FAI Insurance. Surgery was performed on her right knee in September 1992. She received worker's compensation payments and returned to work for a period commencing November 1992. The injury left the applicant with what was described as "significant pain, swelling and disability": (Exhibit R2, letter from Dr Thompson, 28 June 1993). Physiotherapy was necessary for a lengthy period. The return to work program Upon her return to work, the applicant's knee condition deteriorated. She obtained medical advice from a variety of specialists and was placed on an intense exercise and physiotherapy program which incorporated a "back to work" program. Her working hours were restricted to four hours per day, five days per week. Her work was restricted in that she was not permitted to kneel or squat nor to undertake heavy lifting: ( Exhibit R3, Series of four medical certificates for workers compensation). In January 1993 an arthroscopy was performed on the applicant by Dr Schmidt. In March 1993 the applicant returned to work again. As part of the back to work program the applicant worked three hour shifts (on advice) with structured duties to suit the rehabilitation program as devised by Ms Pam Garten, an occupational therapist. Ms Garten, who gave evidence before the Court, is employed by the Northern Territory Rehabilitation Service. That service was engaged by the insurers for the respondents as part of the employer's obligations under the Work Health Act (NT). After treatment, the applicant was able to perform many of her duties using a saddle stool (as recommended by the occupational therapist). The use of the saddle stool enabled the applicant to take the pressure off of her legs while she was working. The applicant said in cross‑examination that she used the saddle stool approximately 98% of the time she was at work. The applicant's evidence was that for about the first 12 months of her employment at Casuarina Tavern she enjoyed a good relationship with the various managers, although throughout the period of employment there were a number of changes of management . From the applicant's perspective this good relationship was exhibited by the applicant being able to negotiate working hours which accommodated both her rehabilitation program and her family responsibilities concerning her children. The respondent's witness, Mr Iain Seymour, one of the chefs employed at Casuarina Tavern described the applicant as a good worker with whom he got along. He said she performed her work diligently until towards the end of the employment period. Some accommodation was made for the applicant's disability in the early part of the applicant' s rehabilitation program by the applicant being permitted to work shorter shifts (three hours per day) and structuring a mix of duties compatible with the rehabilitation program. It appears that after Power Pacific took over the management of the Casuarina Tavern the practises of the Tavern appeared to change. It is not for me to make any criticism, nor do I wish to make any such criticism of the need of the new managers to reorganise according to their own assessment of what changes were required to make their business more efficient. That is clearly the very essence of a large part of the role of management in such circumstances. The impact of the change was, however, felt acutely by the applicant at various times due to her needs concerning the rehabilitation of the injury she had received in the work place. At various stages in 1993 and 1994, as a result of the applicant's needs, the applicant was placed in the position of having to negotiate appropriate hours and other conditions with changing management. From an objective standpoint, the various changes in management contributed to potential dispute between the applicant and respondent over a number of work practises. This goes some way to explaining the background to the dismissal. Background to the termination The changes which were difficult for the applicant to manage were those concerning the rostering of shifts. It appears that in 1992 the applicant worked most days from 7.00 am ­3.30 pm on weekdays and worked a night shift every second weekend: (Exhibit A1, Casuarina Tavern Roster 1992). By December 1993 the applicant was rostered to work from 7.00 am ‑ 3.00 pm five days per week: (Exhibit A2, Casurarina Tavern Roster '93­94). The appropriate duties which had been negotiated with the respondents might be described as light or alternative duties in that many of the functions of the position of kitchenhand were being performed by the applicant except that she was advised against any duties which involved squatting, carrying heavy loads and other functions involving knee flexion: (Exhibit A 25, Letter from Pam Garten, March 11 1993; Exhibit R6, Letter from Pam Garten to Casuarina Tavern 30 March 1994). The applicant gave evidence that from March 1994 there were many changes in her work arrangements. She said that from March to April 1994 the rosters were changed virtually every week and the hours were such that they were inconsistent with her medical advice concerning rehabilitation. In particular, the split shifts on Saturdays were such that they were in direct contravention with the back to work program: (Exhibit A2; Exhibit A 25). This point was supported by the occupational therapist. Added to this, some of the changes to her rostered duties were made with very little notification. This made it extremely difficult for the applicant to organise her physiotherapy and exercise program and to organise childcare. This state of affairs gradually led to a deterioration in the relationship between the applicant and management. As an example of the deteriorating relationship the applicant in evidence told the Court how she raised her concerns about the constantly changing rosters with the then head chef Duncan McGuiness. She was told by Mr McGuiness that he could change the roster "any time (he) bloody well felt like it." It appears this attitude softened as the applicant said that later she was told that the head chef would see what he could do for her. Mr Iain Seymour, called by the respondent said that the reason for the change in shifts which affected the applicant were for productivity. He said he was able to dispense with one kitchenhand if the applicant worked nightshifts. He would be able to use the apprentices during the day. He had tried to restructure so that he only needed to employ one kitchenhand thus improving the efficiency of the kitchen. Indications that the employment was in jeopardy In March and April 1994 the applicant received some signals that her employment may be in jeopardy. This occurred both informally and by way of more formal warnings. On April 5 1994 when the applicant returned to work after an absence due to a bout of pleurisy, she was told by David Barrett that when his partners took over the lease of the Tavern, she would no longer have a job. On April 6 1994 the applicant received a letter from Mr Iain Seymour, the then head chef: (Exhibit A5) which stated as follows: " Please be advised that this letter comes as a formal warning as to your negligence in the Casurarina Tavern Bistro on Tuesday 5 April 1994 concerning the laying out of rotten food. I would also like to inform you that if you are going to be late for work or if you have any medical appointments, I would like to be notified at least two days in advance. If any incidents of this nature occur again I shall have no alternative but to give you notice." To these allegations the applicant gave an explanation on why some of the meat and fish which she laid out may have "off": (Exhibit A7; Letter of applicant April 6 1994). In relation to fish she explained in her response and in evidence that she had followed a particular procedure which she had been told to follow in the past. In relation to the meat (which had been wrapped separately), she admitted that she had not checked it, she explained she had been told subsequently that it was "green", which indicated that it must have been off for some time, that she had been away the week previously and that she doubted the adequacy of the storage facilities for meats on display. Further, in relation to the absence from work due to medical check ups, she explained she had been asked by management (Mr Barrett) for further details in relation to light duties. As a medical appointment became available at short notice she accepted it and contacted the head chef Mr Seymour. Mr Seymour did not raise any objections. She also advised him she was having trouble with bronchitis and chest pains and that she would be advising her GP. It turned out that the applicant was suffering from pleurisy and a medical certificate was provided to the employers. The motivation behind the warning letter of April 6 1994 is not entirely clear. The applicant gave evidence that Mr Seymour apologised to her for the warning letter, saying he was asked to sign it. Mr Seymour's evidence corroborates this account to a significant degree. He said in cross‑examination that he only wrote the first part of the letter. He didn't write the last part. Little weight can be given to the content of the warning letter. In any case it would appear that the applicant's explanation was substantially accepted by the respondent. On April 22 1994 the applicant was asked to sign a letter setting out some alleged complaints from customers concerning the lack of freshness of salads and the applicant' s response to testing the salads. Presumably the letter was signed by the applicant to record her receipt of the allegations. The letter ends as a formal warning to the applicant to lift her standard of work or else face dismissal: (Exhibit A8; Warning Letter 20/4194). The applicant stated she was not sure who had written the letter to her, although she thought it may have been Mr Barrett. The applicant responded in writing to the allegations on April 22 1994: (Exhibit A9: Letter of applicant 2214194) Briefly, in the content of that letter she explained that the salads were actually tasteless, they were probably made by apprentices at the direction of the chef, that she was not responsible for their poor quality but that she did think they were fresh. She also pointed out that she had very little to do with making salads since her shifts had changed. Further, she said that in so far as there had been complaints from customers concerning the salads, a customer had made the observation to her that the salads were much nicer when she (the applicant) had made them. She pointed out that there had been no complaints about the salads in the previous two years when she had control over them and that the chef had intended to use her recipes. During the hearing of this matter Mr Seymour said that he had written the letter in question. He said in cross‑examination that only on one occasion to his knowledge had the applicant's various appointments and commitments concerning her rehabilitation interrupted her work. A meeting was called at the Casuarina Tavern with various management representatives, a union representative, Pam Garten and the applicant. At that meeting Ms Garten set out some of the problems concerning the swift roster changes which were making the rehabilitation program difficult. The back to work program was discussed, and according to the applicant, Mr Seymour's letter was refuted by her. The changes to rosters and problems with the roster system were discussed. The applicant also gave evidence that she was asked at a number of points in the discussion when she was leaving and was told that two kitchen‑hands would be taking her place. On May 3 1995 the applicant was advised by Ms Garten to see Dr Thompson concerning (at that stage) her frequent headaches, loss of weight and vomiting. A medical certificate citing "stress related illness" due to conflict at work was supplied to the employer: (Exhibit A 10 Medical Certificate). The claim for worker's compensation for the absence from work from 22 April 1994 to May 3 1994 is a matter still under dispute. The dispute over this claim appears to have led to a further deterioration of the relationship between the applicant and respondent. Evidence was given that representatives of the Northern Territory Work Health Authority attempted to mediate this dispute. This Court has not embarked upon a hearing of the merits of the stress claim. It does not appear to be disputed however that the applicant genuinely believed she had a medical condition which stemmed from a significant degree of conflict at the Casuarina Tavern. There has been no suggestion made to the applicant that she was not genuine in following her medical advice on this point. On May 4 1994 the applicant was required for jury duty at the Northern Territory Supreme Court. She was not selected in the panel and left the Supreme Court, phoned the Casuarina Tavern and informed the kitchen staff that she had not been chosen. On inquiring about when she was next working, she was told that she was not on the roster and would have to see Mr Clayton Williams, the new manager. This latest management change occurred while the applicant was on sick leave. She made arrangements to see Clayton Williams who told her that he had put a casual worker on because he thought the applicant was on jury duty, that he would see what he could do for her after the following Sunday, that the applicant had no contract with him and that he therefore did not have to pay her for the period that he would not be giving her work. On May 8 1994 the applicant phoned the Casuarina Tavern and was told to call back the following day. She was told she was now a casual employee who would be working from 8.00pm to the finish of the shifts on Saturday and Sunday nights only. On advice from her union, the applicant refused to work these shifts. The evidence of the occupational therapist is that the question of the applicant being considered a casual employee for a period complicated the negotiations concerning the "back to work" program. There were further complications to the events of 11 ‑ 12 May 1994 given the applicant's attendance at the Supreme Court for jury duty over those days. Discussions ensued between Pam Garten and the management of Casuarina Tavern and between the applicant and her union. In a letter from Mr GW McManus of Powers Pacific who had taken over management of the Casuarina Tavern at that stage, (Exhibit A 11, 16 May 1994), the applicant was advised that management considered her attitude to solving the various problems at the Tavern to be unacceptable and that there was a dispute concerning her stress related illness. She was also advised, however that she was not a casual employee as had been stated to her by Clayton Williams. She was asked to explain why she hadn't attended work on a number of occasions, including verifying the fact that she had attended for jury service. Further, she was asked to attend a meeting at the Casuarina Tavern on 18 May 1994, to answer the allegations concerning non‑attendance or she would face dismissal. A certificate from the Sheriff of the Supreme court was provided to the respondents and was tendered in evidence indicating clearly that the applicant had attended Court on the days in question: (Exhibit A 12). As a result of the meeting of 18 May 1994 and with intervention by the occupational therapist (Ms Garten), an appropriate roster was drawn up which apparently suited both the applicant and management. The management at that stage was represented by Mr Clayton Ross. It was proposed the applicant would have each Monday as a rostered day off and would work 2.30pm ‑ 11.00pm Tuesdays and Wednesdays. Further, she would work Thursday, Friday and Saturdays, but would be permitted to have breaks if needed and have each Sunday off. After being given this roster, the applicant gave evidence that she was phoned by another member of management and told to disregard this roster. This was not disputed by the respondents at hearing. In early June the applicant was spoken to by Clayton Williams about doing bar work as alternative duties. She indicated she would be willing to try if this was appropriate from the point of view of the occupational therapist. Ms Garten indicated in a deal of correspondence that such duties would be appropriate if the applicant could be seated for part of the time. These arrangements were made on June 16 1994. Just as these arrangements had been finalised, a new roster was posted indicating the applicant would work for five hours each Monday and seven and a quarter hours each Sunday. This new roster was posted just as the applicant had negotiated to have Sunday as a rostered day off. At the posting of a new roster changing arrangements almost simultaneously with the setting of a mutually agreeable roster, the applicant lost her temper, went into the kitchen and told another staff member that she would have smashed Clayton Williams in the mouth. The applicant had a rostered day off and on June 20 1994 was phoned by the second chef at home and told that there had been another roster change and that she (the applicant) should have been at work. The applicant had not anticipated being at work at a time for which she had not been rostered. These facts appear to be accepted by the respondent. A meeting was arranged on June 21 1994 with all concerned parties to discuss the applicant losing her temper. Clayton Williams stated that the applicant would be on two weeks "probation" for her temper. She was advised she would be told the terms of this in writing but in fact never was. The applicant raised again the issue of the roster given that it never stabilised, was changed from week to week and sometimes from day to day. At that meeting she was told by Clayton Williams that this was the most financially beneficial way to run the kitchen and it would now not be changed. There was further discussion about this but the applicant gave evidence that Clayton Williams lost his temper. There was discussion concerning the duties which the applicant could carry out, in particular those noted in the job description as written by Clayton Williams: (Exhibit A 18) and the restrictions noted by Dr Draper: (Exhibit A 17). Suggestions were also made concerning Clayton William's earlier suggestions that the applicant perform bar work. According to Dr Draper's earlier report there was no particular impediment to this. Under cross‑examination the applicant told the Court that she could not explain why there had been so much change in the management practises. She could neither agree nor disagree with Mr Roussos' suggestion to her that the changes were necessary for the operational requirements of the respondent. The applicant explained in cross‑examination that she was not opposed to change as such but her main dispute with management in the latter part of the employment relationship was with the continual changes to the roster week to week and sometimes day after day. To a significant extent, these alleged erratic changes to the roster were confirmed in the evidence of Pam Garten, the occupational therapist. The applicant disagreed with the respondent's assertion that changes in management led to a change in attitude on her part to her employment. Further, in cross-­examination she stated that her attitude and work standard stayed the same throughout the period. The second injury at work On June 25 1994 the applicant suffered another accident at work to her knee which required two hourly ice treatment. On medical advice, supported by certificate she was absent from work from June 25 1994 until June 30 1994. This workers compensation claim was initially disputed by FAI but subsequently accepted: (Exhibit R4, Workers Compensation Form, June 6 1994). When the applicant returned to work another roster was posted to be operative from July 4 1994. This roster consisted of a mix of duties of bar work and kitchenhand work. At this time further requests from the Work Health insurer were made concerning obtaining more reports and details of the applicant's injuries. With the permission of management the applicant arranged to take one weeks leave. A further report from Dr Draper was obtained to assist in the settlement of the work health claim: (Exhibit A 19, Report of Dr Draper 12 July 1994). The dismissal On 19 July 1994 the applicant phoned Casuarina Tavern for her roster. She was not rostered on. On July 20 1994 she spoke to Clayton Williams who said he would like to see her about the roster. The applicant attended the Casuarina Tavern and waited from 1.00pm to 2.15pm. Clayton Williams did not attend. The applicant left. She phoned the Casuarina Tavern a number of times and spoke to the duty manager. On July 21 1995 the applicant tried again to phone Clayton Williams. She was told by the manageress that Clayton Williams would phone her. Eventually the applicant traced Clayton Williams to the Nightcliff hotel where Clayton Williams answered the call from the applicant's husband. The applicant's husband then handed the phone to the applicant. The applicant was told she did not fit into the organisation. She understood she was being dismissed. She asked several times why she didn't fit in. Clayton Williams told her he had documented incidents but wouldn't tell her why she didn't fit in. Upon her dismissal, it appears Mr Brendan Powers (another management representative) attempted briefly, in consultation with the applicant's union, to find alternative employment for the applicant within the organisation. The occupational therapist, Pam Garten, continued to have some contact with Mr Brendan Powers. Ms Garten told the Court that Mr Powers had told her he was considering re‑instating the applicant. This was not contested by the respondents at the trial of this matter. Ms Garten did say however that she and Mr Powers agreed that there had been a "good try" made to try and keep the applicant employed by the respondent but that both felt she should find alternative work. The respondent's defence of this action revolves around the assertion that it was the applicant's poor and deteriorating attitude to her work which led to her dismissal rather than there being any unreasonableness or unfairness on the part of the employer. On this point, the evidence of the occupational therapist Ms Pam Garten, tends to support the applicant's version. Ms Garten explained that initially the management of Casuarina Tavern were cooperative but that this cooperative attitude changed. The applicant was expected to work increasing numbers of hours and according to Ms Garten, it seemed there had to be re‑negotiations at every change of manager. In particular, Ms Garten said that Clayton Williams had initially agreed with the alternative duties specified for the applicant, yet his rosters did not reflect this. He was rude to Ms Garten on one occasion and Ms Garten found he was inconsistent in his attitude to the circumstances of the applicant. Ms Garten went so far to say that the Casuarina Tavern had appeared to be satisfied with the back to work program and that it had been progressing so well that by the end of 1993 Ms Garten thought she was in a position to close her file. Another change of management meant she had to reconsider this. Ms Suss McManis, the book‑keeper at Casuarina Tavern confirmed part of Ms Garten's evidence by explaining that kitchen-­hands were supposed to be on call at night time but that generally the rosters were prepared a week in advance. She agreed however, there was no set roster for much of the time. Her view was that kitchen hands needed to be on call for a variety of emergency situations which could frequently arise. Although the respondent vigorously argued that swift changes in rosters were necessary for the inevitable emergency situations, and for the flexibility in the hospitality industry, the respondent's own witness Mr Seymour gave evidence to the contrary that it was not very often that an emergency situation of this type occurred. According to Mr Seymour, the emergency situations occurred only during the festive season. Alleged breach of Part VIA ‑ Div 3 (a) S 170DB(1) and (2) In argument Mr Roussos conceded that the mode of dismissal as described by the applicant was irregular, although he argued that the applicant was paid the appropriate compensation under S 170DB(2) being payments recorded in Exhibit R9 and supported by evidence. These payments do not accord precisely with the record of payments which the applicant has. The applicant was unable to precisely identify the payments made to her after the dismissal: (Bank Statement of applicant filed at the close of proceedings). In fairness, these payments perhaps should have been identified in clearer terms to the applicant, however, I accept the respondent's evidence of payment instead of notice and therefore accept there was no breach of S 170DB(1) and (2). (b) S 170DC The employer is obliged under this section to give an employee the opportunity to defend themselves against allegations concerning the employee's conduct or performance unless the employer could not reasonably be expected to give the employee that opportunity. I have come to the conclusion that the employer has breached this section. Even after painstakingly going through the evidence, it is difficult to see what exactly was being alleged against the applicant concerning the performance of her duties. As noted above, before the dismissal, there had been letters of warning concerning some minor issues involving the applicant. These proved to be of little substance and in any case, the explanations of the applicant on the face of it appeared to have been accepted by the employer. At the time of the dismissal, there were no reasons given to the applicant concerning her performance. The applicant had to go to some trouble to ascertain the fact that she was being dismissed, let alone the reasons why she was being dismissed. If the dismissal is to be justified on the basis of the applicant's lack of capacity given her injury, then that should have been clearly stated at some point. As has been noted above, the applicant was under the impression that a mix of duties had been negotiated on her behalf which were acceptable to the employer. If whilst agreeing to the various proposals concerning the applicant's duties the employer in fact did not believe the applicant had the relevant capacity, then that should have been clearly stated. It was not clearly stated, although this appears to be the reason relied upon by the respondents at trial to justify the dismissal. It may be that the various requests and negotiations on behalf of the applicant were an irritant to the employer, however, much of the need for negotiating appears to be due to the many changes in day to day management of the Casuarina Tavern and the issues mentioned in evidence by Ms Garten who explained that the attitude of management was inconsistent throughout many of her dealings. (c) S 170DE Pursuant to this section, the employee must not be dismissed unless there is a valid reason connected with the employee's capacity or conduct based on the operational requirements of the establishment. A reason is not valid according to this section if, having regard to the employee's capacity and conduct and operational requirements, the termination is harsh, unjust or unreasonable. In these circumstances the employer has the onus of proving the reason: S 170EDA(1). The applicant has put forward the reasons in Court as firstly "the applicant conducted herself in a manner that was not conducive to maintaining the employment relationship including failure to perform allocated duties": (Respondent's Contentions) and secondly "the applicant was not physically capable of performing the inherent requirements of the position": (Respondent's Affidavit, 12 September 1994). I fail to see that the first reason has been made out at all on the evidence. At each point, alternative or light duties were negotiated with employer. According to Ms Garten one of the problems was the inconsistency between the apparent agreement on the part of the management and then the subsequent conduct of the management being in large part contradictory. The evidence before me indicates that the applicant was prepared to perform and in fact did perform a wide variety of duties required of her. In the circumstances, all she has done is negotiate with the employer about her hours and conditions. There was in fact, a substantial deal of praise coming from the respondent's own witnesses for the quality of the applicant's work. There was afterall, an attempt made by senior management to try to place the applicant in another position even after the dismissal. On the second reason the respondent is still in sime difficulty. While some limits were placed on the duties of applicant, there were still duties consistent with the position of kitchenhand which the applicant could and did in fact carry out. Further, prior to the dismissal, the applicant had negotiated a different mix of duties involving bar work. Once again, although agreed to initially by some representatives of management, it was never allowed to take its course. This was not because of any refusal on the part of the applicant but rather because the respondents once again changed the hours and conditions applicable. The respondent also attempted to put forward the reason that based on the operational requirements of the Casuarina Tavern, the applicant could no longer be afforded consideration of her medical condition in such things as the setting of shifts or allocation of duties. The evidence on that point is quite scant. It appears that Mr Seymour (at one time the head chef) did try to introduce measures to make the kitchen more efficient. There was little or scant evidence on exactly how this impacted on the operational requirements of the Casuarina Tavern. Due to the combination of circumstances which I have referred to above, the termination was harsh unjust or unreasonable within the meaning of s 170DE. In Byrne and Frew v Australian Airlines Limited (1994) 52 IR 10, Gray J considered this phrase, although in the context of a Federal Award. At pages 63‑64 of His Honour's judgment, it is clear that breaches of procedural fairness may lead to a dismissal being categorised "unjust". In the circumstances of this case, in particular given the conflicting signals being given by management at the time, there was unfairness which I consider made the circumstances of the dismissal unjust both procedurally and substantively. Mr Roussos for the respondents has valiantly attempted to argue that even Ms Garten conceded after the dismissal that everyone had tried to accommodate the applicant and that alternative employment ought to be found for the applicant. This factor, he argues, shows that the employer made the correct judgment in dismissing the applicant. I did not take Ms Gartens evidence to mean exactly what Mr Roussos has put forward. I took her evidence to indicate that she could no longer preserver with the management and that in the longer term it may have been better for everyone for the applicant to find alternative employment after re‑training. Her evidence on this point must be seen in the context of some of the contradictory approaches by some members of management in her dealings with them. (d) S 170 DF Both the applicant and the respondent have raised the question of the validity of the dismissal in the context of S 170DF. That section makes it unlawful for an employer to terminate an employee's employment for a variety of reasons. Here, the relevant reason is S 170DF(l)(f) "physical disability". The respondents contend this was a reason for the dismissal but that it was a permissible reason given s 170DF(2), ie based on the "inherent requirements" of the particular position. In assessing the facts, it is clear that the applicant was carrying out alternative or light duties. Whilst this meant she did not carry out every enumerated duty of a kitchen hand, as referred to in the evidence, for the most part, the summation of her duties meant she was still employed as a kitchen hand. By the use of the word "inherent" in S 170DF(2) which qualifies "requirements", it appears to me the legislature was seeking to provide for the situation where the employee could no longer be seen to be carrying out the essential elements of the position. Had s 170DF(2) referred merely to "requirements", then an employer could certainly mount a defence based on the failure of the employee to perform any requirement as called for by the employer. The way the section is worded leads me to the conclusion that a respondent has a defence under S 170DF(2) only when the change of duties is such that the duties performed by the employee can no longer be said to comprise the "inherent requirements" of the "particular position." If I am wrong on this point, then in any case it appears to me that the dismissal was contrary to the spirit of S 170DF. The issues concerning the respondent's attitude towards the applicant's disability can in any case contribute to a finding that the dismissal was harsh, unjust or unreasonable within S 170DE(2): Joseph Peter Atkinson v Brickshaw Pty Ltd No VI‑963/94, (unreported) Ryan JR, 27 March 1995. On the facts, there is also the further complicating matter that close to the time of the dismissal, the applicant negotiated a mix of duties which would be consistent with her program to work in spite of her injury. For reasons which were not explained by the respondent, this plan was not ever put into proper effect. I raised with Mr Roussos what effect the risk of further injury might have on the validity of the dismissal. His view was that the real risk of further injury justified the dismissal. Whilst in some circumstances that is no doubt the case, here those possibilities were not ever properly canvassed with the applicant and the new mix of duties not given a proper try. They are also issues which are relevant to the question of whether or not the dismissal was harsh, unjust or unreasonable in the circumstances. Remedy Having found the dismissal breached Division 3 of the Act, I turn to remedy. Although re‑instatement is the primary remedy, on the material before the Court, this remedy is not practicable. In assessing compensation I take into account the strong evidence supporting the applicant's many efforts to find employment and her success at re‑training. I have already found that the respondents did pay the applicant compensation instead of notice and therefore this has been deducted from the sum of compensation I would have otherwise awarded. I must further deduct workers compensation payments made to the applicant at the rate of around $275 per week. Although the applicant's pay varied according to the shifts she worked, while the applicant was employed by the respondent, the applicant earnt between $300 ‑ $500 per week. I have also taken account of the fact that although I have found the dismissal to breach the Act, I never the less think that the applicant and respondent would have parted company sooner than six months from the date of the dismissal. The deteriorating relationship between the parties would have been brought to an end. Such is evident from Ms Garten' s evidence. I must however balance this against the applicant's lost opportunity of demonstrating that she could perform a mix of duties which may have been a successful out come for all concerned. Taking all these factors into account and being as precise as I can be given the material before me, I award compensation in the sum of $3000. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Jenny Blokland. Date: May 10 1995. Signed: