Kearin Peter Dombroski v Beeflands Australia Pty Limited [1995] IRCA 482

C A T C H W O R D S

INDUSTRIAL LAW - termination of employment - whether serious and wilful misconduct - whether valid reason for termination of Applicant's employment - whether termination of Applicant's employment harsh unjust or unreasonable. INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE HELEN O'CALLAHAN-EVANS -V- MITSUBISHI MOTORS AUSTRALIA LTD No. SA 1173 of 1995 JUDICIAL REGISTRAR: L FARRELL PLACE: ADELAIDE DATE: 18 SEPTEMBER 1995

INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA REGISTRY ) No. SA 1173 of 1995 B E T W E E N: HELEN O'CALLAHAN-EVANS Applicant AND MITSUBISHI MOTORS AUSTRALIA LTD Respondent MINUTES OF ORDER BEFORE: JUDICIAL REGISTRAR FARRELL PLACE: ADELAIDE DATE: 18 SEPTEMBER 1995 THE COURT ORDERS THAT: The Application is dismissed NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA REGISTRY ) No. SA 1173 of 1995 B E T W E E N: HELEN O'CALLAHAN-EVANS Applicant AND MITSUBISHI MOTORS AUSTRALIA LTD Respondent BEFORE: JUDICIAL REGISTRAR FARRELL PLACE: ADELAIDE DATE: 18 SEPTEMBER 1995 REASONS FOR JUDGMENT This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that her employment was terminated unlawfully. She claims compensation. She does not seek reinstatement. The Applicant commenced employment as a production worker at the Respondent's paint shop at its Tonsley plant on 5 September 1994. Between June and August 1994 the Applicant had been treated by her general practitioner, Dr Dean, for symptoms in her right arm. On 8 August 1995 she had received an injection of Depo Medrol into her right shoulder. That injection rendered her symptom free. On 22 August 1995 the Applicant completed an Application for employment with the Respondent. On 28 August 1995 the Applicant completed a "medical history form" and underwent a medical examination. In completing the Application for employment form and the medical history form, the Applicant did not mention her treatment and symptoms between June and August 1994, the Applicant did however mention that she is a diabetic . Her condition is controlled to some extent by insulin. She also gave evidence that she is a heavy smoker. The Applicant experienced some discomfort in her arms soon after commencing her duties. The work was repetitive. She assumed the discomfort was caused by her lack of fitness. In December 1994 the Applicant reported to her supervisor, Mr Mifsud that she was experiencing symptoms in her right arm. In January 1995 the Applicant's duties included increased masking work, which involved pressing tape on to cars with her fingers. She associated these duties with a dramatic increase in symptoms in her hands. She saw Dr Verrall, another doctor at the surgery where she had been treated prior to commencing her employment on 17 February 1995. He diagnosed bilateral carpal tunnel syndrome. The Applicant was given a Notice of Disability by her supervisor. She did not submit the notice until later, because she feared that she could lose her employment. She subsequently submitted a claim for compensation on 6 April 1995. She was seen by Dr Panyaris, the company doctor. On 6 April 1995, he referred her to Dr Lawrence a plastic surgeon who saw the Applicant on 10 April 1995. The Applicant did not provide the earlier history of symptoms or treatment prior to her employment to either of those doctors. The Respondent sought and received a medical report from Dr Verrall which revealed that history of treatment prior to the commencement of her employment. It was the receipt of that report that set in train the process that led to the Applicant's dismissal. On 30 May 1995 the Applicant was interviewed by Ms Van De Reep from the Respondent's workers compensation office and four other people, including Mr McCarthy who was the Respondent's Employee Relations Officer. She was advised and received a written notice that her claim for workers compensation was rejected. She was also advised and received notice that her employment was being terminated. Dr Drew who performed the medical assessment of the Applicant prior to the commencement of her employment gave evidence that if he had been aware of the Applicant's symptoms and treatment between June and August 1994 he would not have recommended her for employment because most production duties at the Respondent's plant were repetitive and there was a high likelihood of her developing carpal tunnel syndrome because of her history. The Applicant gave evidence that she did not think of the treatment and symptoms when completing the Application form. She did mention he diabetes, being well aware that working would require some adjustment of her insulin dosage.