Biaggio Trentino v City of Stirling [1995] IRCA 470

C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether there was a VALID REASON for termination - whether the termination was HARSH, UNJUST OR UNREASONABLE - APPLICATION dismissed. INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170DC, 170DE, 170DF BIAGGIO TRENTINO -v- CITY OF STIRLING - WI 404 of 1994 BEFORE: BOON JR PLACE: PERTH DATE: 15 SEPTEMBER 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 404 of 1994 BETWEEN: BIAGGIO TRENTINO - Applicant AND: CITY OF STIRLING - Respondent BEFORE: BOON JR PLACE: PERTH DATE: 15 SEPTEMBER 1995 THE COURT ORDERS THAT: 1. The application is dismissed. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 404 of 1994 BETWEEN: BIAGGIO TRENTINO - Applicant AND: CITY OF STIRLING - Respondent BEFORE: BOON JR PLACE: PERTH DATE: 15 SEPTEMBER 1995 REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act 1988 relating to the termination of the applicant's employment by the respondent. The applicant's position is that the provisions of the Industrial Relations Act have been breached in various ways. Firstly, it is said that there was no valid reason, or valid reasons, connected with the applicant's capacity or conduct or based on the operational requirements of the employer to justify termination of the employment contrary to Section 170DE(1). Secondly, if there was a valid reason, the termination was in any event harsh, unjust or unreasonable within the meaning of Section 170DE(2). Thirdly, it is said that the applicant did not have an opportunity to defend himself against allegations contrary to Section 170DC. Fourthly, it is said that the applicant's termination was for a prohibited reason or reasons, including a temporary absence from work because of illness or injury, or termination on the grounds of a physical disability. Finally, if it is found that the termination breached the provisions of the Industrial Relations Act, it is said that reinstatement of the applicant would be impracticable and that the appropriate remedy would be payment of compensation. The respondent denies that the applicant was terminated for a prohibited reason and states that there was a valid reason for the termination within the meaning of Section 170DE of the Act. Further, the respondent states that the applicant was given an opportunity to respond to allegations against his conduct or performance. The respondent's outline of submissions states in part that the valid reasons for the termination relating to the applicant's conduct and performance and based upon the employer's operational requirements included the following: "(a) The applicant's continued failure to reasonably co-operate with the employer's attempts to rehabilitate the applicant back into the workforce; (b) the applicant's disruptive influence on the applicant's co-workers and the respondent's operations generally; (c) the applicant's refusal to comply with lawful and reasonable directions by the employer to perform work within his capacity (in accordance with his rehabilitation programme); (d) the applicant's disruptive influence and the general effect of his conduct and performance on the morale of the construction crew with whom he worked." BACKGROUND The respondent, the City of Stirling, is one of the largest local municipalities in Western Australia. It employs nearly 900 people. Evidence was given by Mr George Steadman, Occupational Health and Safety Co-ordinator with the City of Stirling, that the respondent has shown a strong commitment towards health and safety. The City of Stirling has been presented with a gold award by the Department of Occupational Health, Safety and Welfare to recognise the respondent's commitment towards health and safety. I accept on the evidence that the City of Stirling as an employer prides itself on its commitment to the health and safety of its workers. That does not necessarily mean, of course, that the provisions of the Industrial Relations Act were not breached in Mr Trentino's case. The applicant, Biaggio "Joe" Trentino, was born on 26 June 1948 and is 47 years old. He migrated to Australia from Italy and has a strong Italian accent. Although some questions were raised about his ability to understand English at some of the meetings he attended with his employers, it was clear from his evidence that he is able to understand English and to speak English reasonably well. Mr Trentino is a married man with three teenage children. Mr Trentino gained employment with the City of Stirling on 2 April 1990. His position was that of truck driver/labourer. Evidence was given that employees like Mr Trentino were generally classed as truck driver/labourers. Some employees within that category did labouring work only. Those employees who undertook truck driving duties also spent a significant proportion of their time on labouring duties. Initially Mr Trentino was engaged on truck driving duties. He took some pride in his work as a truck driver and various documents tendered as exhibits at the hearing of this matter showed that Mr Trentino's supervisors gave Mr Trentino favourable reports on the way he carried out his work during 1990. On 19 May 1993, Mr Trentino was riding his push bike to work when he was involved in an accident. A car cut in front of him and Mr Trentino hit his brakes. He went over the handle bar and landed on his left side. Mr Trentino saw his general medical practitioner, Dr Henry Simmons, and was off work for three days as a result of that accident. Mr Trentino's fellow employees gave evidence that they were aware that he had had an accident in May of 1993 but were not aware of any problems with his health until December 1993 when Mr Trentino was removed from truck driving duties. Mr Trentino said that he was able to carry out his truck driving duties after the accident and although he experienced some pain at times he was able to control his condition with pain killers. I find on the evidence that Mr Trentino did not complain about his inability to carry out the labouring side of his duties between the date of the accident and the date on which he was removed from truck driving duties. MR TRENTINO'S REMOVAL FROM TRUCK DRIVING DUTIES In early December 1993, following various incidents involving Mr Trentino, he was transferred from truck driving duties to labouring duties. Initially in his evidence-in-chief, Mr Trentino said that there was no reason for his transfer from truck driving to normal road gang construction duties. He said ".... I was the only one actually to be transferred round for some reason, I don't know why, you know, just when they need someone, just pick on me, and without any reason ...". Later in his evidence-in-chief, Mr Trentino said that he did bog the truck, that everybody did that during the year and that it was not a big deal. Mr Trentino said that in December 1993 he bogged his truck when the backhoe operator positioned him on a particular spot which, once the truck was loaded, collapsed on one side because the sand was soft underneath. He did not know that on the previous day a big hole had been dug in that position. Following this incident, he was called into the office and told that he was not a good enough driver and that he would transferred to the road construction crew as a labourer. It was clear from Mr Trentino's evidence that he felt he was being unfairly singled out for criticism by his employer. He said that he pointed out to the respondent's engineer that everybody bogged the truck three or four times a year and that he did not know why they were making such a big deal about him. Mr Raymond McCall, a plant operator with the City of Stirling, was called to give evidence. He operates a front end loader and worked with Mr Trentino on the road construction crew. His evidence was that when Mr Trentino was a truck driver, he seemed to make Mr McCall's job a lot harder than it need have been. There were various incidents involving Mr Trentino which indicated that he was unable to properly drive the truck. On one occasion Mr Trentino parked his truck in a completely ridiculous place for Mr McCall to load. Mr McCall was very angry because he was already under a lot of pressure. As a loader/driver, he has to look out for pipes, he has to look out for men and he has to look out for where the trucks are, in addition to watching out for traffic. Mr McCall recalled another incident in which Mr Trentino drove his truck into a box and Mr McCall had to use his loader to pull Mr Trentino's truck out. The final incident, the one which Mr Trentino referred to, occurred on the day after Mr McCall had been angry with Mr Trentino for parking in the wrong place. Other members of the crew had been digging a large hole and Mr McCall saw Joe Trentino backing his truck into the hole. Mr McCall's evidence was that the truck looked like it was going to disappear into the trench and said it was fortunate that there was nobody in the trench at the time. Mr Kevin Mills, a senior leading hand/acting foreman with the City of Stirling, gave evidence that Mr Trentino was taken off the truck driving duties as he had very bad driving skills. By December 1993, Mr Trentino should have learned how to park vehicles and to reverse with a loader. Mr Mills had had several complaints from the workers about Mr Trentino's driving skills and he had to investigate and try to solve the problem. Mr Barry Knapp, a leading hand with the respondent, also gave evidence that Mr Trentino was a poor truck driver and was taken off his truck driving duties because of his poor performance. Finally, Trevor Holland, the Human Resources Manager at the City of Stirling, became aware in early December 1993 when the engineer in charge of the area in which Mr Trentino worked telephoned and advised him of some problems they had with the way Mr Trentino carried out his truck driving duties. The engineer recommended that Mr Trentino be demoted but Mr Holland wanted to find out exactly what had happened and arranged a meeting for 6 December 1993. The meeting was attended by Mr Trentino, Mr Steadman, Mr Holland, the engineer and Mr Mills. Mr Holland recommended that Mr Trentino be transferred to labouring duties with the road construction crew with no change in his rate of pay and that was agreed to. It was clear from the evidence that Mr Trentino was annoyed at being removed from truck driving duties. Much of the case for the applicant revolved around the fact that, considering Mr Trentino's physical condition, he should have been put back on truck driving duties. I am satisfied, however, from the evidence of the respondent's witnesses that there were good reasons for taking Mr Trentino away from the truck driving duties. Mr Trentino had to function as part of a team and it appeared to me from the evidence that the way Mr Trentino drove his truck, particularly in late 1993, not only made the work of others more difficult but at times Mr Trentino's actions may have resulted in some danger to his fellow employees. Further, there was some evidence, both in medical reports and from statements made by Mr Trentino to his employers, that Mr Trentino had suffered from some blurred vision and dizzy spells as a result of his accident in May 1993 and that the City of Stirling was very concerned about any implications this might have for his ability to drive any vehicle. Mr Trentino was transferred to the road crew on 3 December 1993. Mr Knapp gave evidence that, on the day after Mr Trentino was taken off the truck, when Mr Knapp got to the worksite Mr Trentino said that he had a sore neck and could not work. Mr Mills gave evidence that on that morning he had a call from Mr Knapp who asked Mr Mills to come to the job site. Mr Mills went there and found that Joe Trentino was refusing to work. This was at about 7.30 to 8.00 o'clock in the morning. Mr Mills spoke to Mr Trentino who said "No, I'm not working". Mr Trentino said that he had a sore neck and wanted to go home. Mr Trentino was then brought in to see Mr Holland and Mr Steadman. A meeting was arranged for 6 December 1993 which was the same meeting at which the question of Mr Trentino's truck driving duties was discussed. At that meeting, Mr Trentino indicated that he had a sore neck and that he should be on light duties. He mentioned that he had been involved in a prior accident in Karratha over ten years before. Mr Trentino's evidence in relation to this accident during cross-examination was that it was a minor thing, that he was never on compensation and that he had never had any time off work. Mr Steadman, Mr Mills and Mr Holland, all of whom were present at the meeting in December 1993, gave evidence that Mr Trentino said at the meeting that he had had dizzy spells and blurred vision occasionally since the Karratha accident. Mr Holland in particular was very concerned about the dizzy spells and said to Mr Trentino that he should not be driving. Mr Trentino denied during cross examination that he had told his employers that he had suffered dizzy spells. He said that they must have obtained this information from a medical report which mentioned some blurred vision he had had during neck manipulation. Mr Trentino said that that was the only occasion on which he ever had blurred vision or dizzy spells. Mr Trentino, however, told doctors at Prime Occupational Health in December 1993 that on occasions he would become dizzy and would have to sit down. This is noted in Dr Garside's report of 9 August 1994 but was stated by Mr Trentino at his first visit to Prime in December 1993. I find on the evidence that Mr Trentino did tell his employers about his dizzy spells in December of 1993. Mr Trentino saw his own medical practitioner, Dr Henry Simmons, who provided a medical certificate dated 7 December 1993. Dr Simmons stated in that certificate "I understand this man was previously doing mostly driving duties with some periods of labouring. He tells me he has been requested to do full time labouring. He is unable to do seven hours labour per day because of neck pain. He should do no more than two hours per day of heavy work.". Mr Steadman gave evidence that as a result of the previous meeting with Mr Trentino the respondent resolved to have Mr Trentino medically assessed to determine what his restrictions might be. This was in line with the City of Stirling's health and safety programme and rehabilitation policy. As a result of receiving Dr Simmons' medical certificate, the Council's response was to immediately place Mr Trentino in another job. Mr Trentino was given some work clearing the drainage sumps using a whipper snipper. He was provided with a double shoulder harness to minimise the impact on his neck and he was also provided with transport because there was concern about the dizzy spells. In conjunction with this, Mr Trentino was to be assessed through Prime Rehabilitation to determine a rehabilitation programme. It appears from the evidence that Mr Trentino had no difficulty carrying out the whipper snipper duties. From December 1993 until April 1994 Mr Trentino carried out the whipper snipping duties. In April 1994 he was transferred back to the road construction crew where he carried out flagman duties, which involved directing traffic by holding a stop/go sign. He was also put onto pegman duties which involved clearing soil from around survey pegs using the back of a shovel in a scraping or sweeping motion. The evidence from all of the respondent's witnesses was that the clearing of soil from around the survey pegs was very light work. THE INCIDENT ON 14 APRIL 1994 On 14 April 1994 the road construction crew was working in Weaponness Road in Wembley. Mr Trentino gave evidence that on that day the crew was taking kerbs off the road and helping the loader to clear the cement kerbs. He said that Mr Mills whistled to him from far away and told him to shift some of the cement kerbs. Mr Trentino said that he told Mr Mills that he was on light duties and that he had had no clearance. Mr Mills did not seem to understand. Mr Trentino said that he asked Mr Mills to take him to his own doctor who had his surgery nearby. Mr Mills told him to "hop in the ute". Mr Trentino said he didn't know where they were going and they ended up in the depot. He was not told what was going on but Mr Mills asked him to wait in the car. Because Mr Trentino was in a lot of pain, he went across the road to the deli. He telephoned his wife who picked him up and took him to the doctor. Mr Mills' evidence was that he never asked Mr Trentino to pick up cement kerbs. He said that where a job is very narrow, the front end loader can only get a certain amount into the bucket and then there is a small amount of shovel work whereby the road crew shovel the remaining dirt into the bucket. The rest of the crew had started this work and Mr Mills asked Trentino to help. Mr Trentino said "No, I'm on light duties". Mr Mills said to Mr Trentino "No, we've been given information that you are to do two hours normal work at one time". Mr Trentino said "No way". Mr Trentino then said that he wanted to go home. His supervisor then told Mr Mills to take Mr Trentino back to the depot. When they arrived at the depot, Mr Mills asked Trentino to wait a moment and he would telephone Trevor Holland. Mr Holland was not available so Mr Mills telephoned Mr Steadman. When Mr Steadman came out Mr Mills came over from the main office and found Trentino had gone. They looked throughout the whole depot but could not find him. When Mr Trentino returned to work after this incident, there was a meeting with Mr Trentino, Mr Hutchins from the union and several employer representatives. As a result of that meeting, Mr Trentino was issued with a "reminder of service" over the incident. THE REHABILITATION ASSESSMENT Mr Holland gave evidence that on 25 April 1994 there was a formal meeting with Mr Johnson, a union organiser, Mr Trentino and Mr Holland. As a result of that, an agreement was drawn up between Mr Trentino, the union and the Stirling City Council whereby Mr Trentino agreed to undertake a functional assessment by a recognised rehabilitation provider; to provide written consent to access to medical records relating to his injury in Karratha; to allow the respondent access to a copy of his most recent medical assessment; to undergo rehabilitation by a recognised rehabilitation provider; and the City of Stirling agreed to allow Mr Trentino eight weeks' unpaid leave commencing 1 June 1994 and ending 31 July 1994. The Court heard from Ms Melanie Baker, a qualified occupational therapist, who at the time of Mr Trentino's employment with the respondent was employed by Prime Rehabilitation. Ms Baker was contacted by the City of Stirling and was asked to do a worksite evaluation and an assessment of Mr Trentino. Her initial contact with Mr Trentino was on 3 May 1994 at Cedric Street in Stirling where there were some roadworks being undertaken. She spoke to Mr Trentino, George Steadman and a union representative for Mr Trentino. Ms Baker viewed the work that was being undertaken and gained some information about the duties Mr Trentino would be expected to undertake. After this initial view she went back to an office with Mr Trentino and the union representative and carried out an initial assessment, gaining basic information such as a medical history and work status. Following that, Ms Baker carried out a functional capacity evaluation, which is a physical assessment which she performed on Mr Trentino to establish his physical capacity at that time. Prior to this assessment, she spoke with Dr Simmons to establish that it was safe for Mr Trentino to undertake the evaluation. As a result of these assessments, Ms Baker prepared a report dated 23 May 1994. That report listed five recommendations, as follows: "1. A work hardening/exercise programme be undertaken by Mr Trentino following his return from leave, as the results indicate Mr Trentino has poor physical activity tolerances. 2. A graded work programme be designed in a suitable position at the City of Stirling following Mr Trentino's return from leave. 3. Regular changes in posture be given, for example every hour in the work Mr Trentino is performing. 4. Counselling be considered for Mr Trentino for him to discuss his difficulties with work peers and other issues which may be affecting his return to work. 5. If progress is not made with Mr Trentino's rehabilitation following return from leave, a medical review by an occupational physician be considered." At around this time Mr Trentino saw Dr Simmons who provided a progress medical certificate on 14 April 1994 which said that Mr Trentino was to continue to do light duties only. Between April 1994 and June 1994, Mr Trentino engaged in further light duties until he left on leave for Italy in June 1994. During this time, some of the respondent's employees were concerned about what they saw as Mr Trentino's negative attitude towards his work and the rehabilitation programme. Mr Trentino returned to work in August of 1994. Melanie Baker and her colleague from Prime Rehabilitation had in May 1993 provided the City of Stirling with information relating to the duties Mr Trentino was able to undertake. These duties included clearing soil with the back of a shovel from around survey pegs and shovelling up to seven and a half kilograms in weight for ten minutes maximum at one time, filling the blade to half full, and followed by a minimum of thirty minutes in other duties before resuming shovelling. It was said that Mr Trentino was not to lift sand bags or move drums or road signs. On 9 August 1994, Dr Gary Garside from Prime Rehabilitation stated that Mr Trentino had a capacity for work and was capable of carrying out the modified list of duties as provided by Ms Baker in her report. On Monday 29 August 1994 Mr Steadman was contacted by Kevin Mills regarding Mr Trentino. Mr Mills told Mr Steadman that Mr Trentino was not fulfilling his obligations under his rehabilitation programme. Evidence was given by Mr Mills and Mr Knapp that every time Mr Knapp left the work site Mr Trentino would sit in one of the vehicles and not do any work. Mr Steadman contacted Ms Baker and she and Mr Steadman attended the work site on Tuesday 30 August 1994 to clarify with Mr Trentino the question of his work breaks. Mr Steadman and Ms Baker both gave evidence that while they were at the work site Mr Trentino was instructed by Mr Mills to clear away any stones from the cycle way and to use a shovel to clear around the wooden pegs. However, Mr Trentino did not seem interested in performing his work and walked back and forth along the cycle way holding on to his shovel. Only occasionally would he stop to scratch around with his shovel. Ms Baker said that Mr Trentino was working slowly and was not performing the tasks as required by his supervisor to the level required.