INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3121 of 1995 B E T W E E N : SHENG HUANG Applicant AND FORD MOTOR COMPANY OF AUSTRALIA Respondent Before: Judicial Registrar Murphy Place: Melbourne Date: 8 September 1995 REASONS FOR DECISION (EX-TEMPORE - Revised from draft transcript) Work-related injuries are an unfortunate by-product of industrial activity. In the last few years much emphasis has been placed on programmes to rehabilitate injured workers back into the productive workforce. This application under Part VIA of the Industrial Relations Act ("the Act") arises out of attempts by the Respondent to return the Applicant, one of its injured employees, to its productive workforce. Findings on the Evidence The Applicant is aged 27 and was born in China. He arrived in Australia in 1988 as a student of English. He spent about a year in educational colleges, including six months learning English. In late 1989 he commenced on the production line at the Respondent's manufacturing plant at Broadmeadows. In February 1994 the Applicant reported a work-related injury to his neck and shoulder. He apparently commenced on WorkCover at that time. In June 1994 he commenced to see Dr Sheriff. From that time until April 1995 Dr Sheriff issued him monthly WorkCover "Certificates of Capacity" certifying that he was fit for alternative duties off the production line. Over this period the Respondent's rehabilitation service provider, Victorian Rehabilitation Services ("VRS"), managed the Applicant's rehabilitation program. VRS has an officer at the plant and assesses injured employees for various suitable jobs within the plant. In October 1994, an independent rehabilitation service assessed the light duties job which was being provided. It assessed the position's physical requirements as not being excessive. The report noted, however, low energy reserves and lack of interest on the part of the Applicant. In a report dated 7 March 1995, Dr Sheriff describes the Applicant as suffering from a "musculo ligamentous strain" injury. He noted that his condition had significantly improved with the lighter duties. He described his condition as stable and said that the prognosis was favourable. On 26 April 1995, Dr Sheriff certified the Applicant as suitable for four hours light duties and four hours normal duties per day, with a review on 10 May. On 8 May VRS wrote to Dr Sheriff noting that the existing "very light loaded inspection job" was no longer available. The letter suggested that this was an ideal opportunity "to address the issue of upgrading his duties". The letter proposed duties on the production line. It invited Dr Sheriff to contact the writer, Ms Newell, to discuss. On 9 May, the Applicant was taken to the handbrake section of the production line by Mr Marangoudis ("Marangoudis"), his supervisor. This particular function on the line is described as the easiest light duties job in the plant. He was introduced to another employee, Mr Benjamin, and Mr Benjamin was instructed to instruct him how to do the job. Marangoudis gave evidence that the Applicant indicated that he could do the job. The actual job involved two activities; the first involved putting an elastic band on a loose brake cable hanging below the floor of the partially assembled vehicle unit. The band had to be looped around the end of the cable and stretched a short distance and hooked to a lug on the underside of the vehicle. The duration of the activity was estimated to be six seconds. A unit passed that point each sixty seconds. The actual duties were performed standing up, at about shoulder height. I find that it was a very simple task. The second aspect of the duties involved placing a plastic collar on a cigarette lighter. These duties were to be performed while awaiting the next unit. This task was even simpler. The Applicant advised Marangoudis that he understood what had to be done. He was asked if he had any physical or other problems with the job, and he replied, "No". Over the next two days the Applicant did not perform the duties. The evidence of Marangoudis was that he did not try. He would flick elastic bands at other employees and treat the matter as a joke. On the first day the union shop steward, Mr Janakievski ("Janakievski"), was called in and observed what was happening. On 11 May the position had not changed. Again, the shop steward was called in. The Applicant maintained that he was doing the job. He said he liked the job, he could do the job, it was a beautiful job. The Industrial Relations Supervisor, Mr Kenworthy ("Kenworthy"), was then involved. He observed the Applicant with Janakievski. The Applicant was again showed how to do the job by the shop steward. The Applicant did not appear restricted in his movements. Marangoudis gave evidence, not challenged, that the Applicant was laughing and carrying on. A meeting took place in Kenworthy's office between Kenworthy, Marangoudis, Janakievski and the Applicant. Another employee who spoke the Applicant's language was present to interpret. The Applicant was given a verbal warning that if he did not perform he would be dismissed. In evidence the Applicant claimed that nobody asked him why he could not do the job, and that he could not explain that he was feeling pain performing the work. He denied that he instigated any laughing. He also said that he was performing the cigarette lighter aspect of the job, but with some mistakes. Because the Applicant was acting strangely on that day he was referred to the Respondent's psychologist. She referred him to the company doctor who examined him and referred him to his own doctor. The Applicant was absent from work on 12 May. He saw Dr Vanderzeil that day. He wrote a report saying that there was no indication of any psychiatric or nervous problem. The Applicant returned to work on 15 May when the same thing happened. He was again carrying on but maintained that he could do the job. He was spoken to by the union organiser on that day and told he had better perform his duties. In a conversation with Kenworthy that day the Applicant asked whether there were any redundancy packages available. He was told there were not. The Applicant told Kenworthy he would go back to school. On 16 May the position was the same. Again, the Applicant was approached by another shop steward, Mr Kenski, and told that he was being silly and that he should start doing the job or he would get into trouble. Between 17 and 19 May the Applicant was absent from work. He produced a certificate from a third doctor stating that he had a "medical condition", and applied for three days sick leave over that period. On 22 May Mr John Ferraro ("Ferraro") was the Acting Supervisor. He described the job as "light as they get" and one of the easiest jobs in the whole plant. The Applicant was again shown how to do the job. Ferraro said that there was no appearance of any physical restriction and the Applicant did not say he could not do the job for any physical reason. Again the Applicant made no attempt to do the job. Again Janakievski was called in to observe him. The Applicant said he knew the job and was trying to do it. A meeting was then held in Kenworthy's office. The interpreter was again present, as was the shop steward Janakievski and the Applicant. The Applicant was suspended for four days. The suspension was confirmed at his request in writing. The reason was "neglect of duty". He was told that if his performance did not improve he would be terminated. The Applicant's response to being asked why he was not performing was that he was doing the job. Ferraro gave unchallenged evidence that there was no complaint made by the Applicant of any injury. He said if there had been he would have been referred to the medical centre. On 26 May the Applicant returned to work in the same job. Nothing changed. The Applicant was joking and smiling. He was spoken to by Janakievski to no avail. The senior shop steward spoke to him. He was taken to Kenworthy's office. Again the interpreter was called. At that meeting the Applicant was again asked to explain his position and was asked continuously did he have a problem. He maintained that "he will do the job". The Applicant produced a tape of that meeting. The fact that he taped the meeting is of surprise. At all events the tape reveals the representatives of the Respondent advising the Applicant that the VRS had said that there were no other positions for him and that they had tried and tried with him. The Applicant stated that he could do another job. He was advised there was no other job. The Applicant was paid four weeks pay and his services terminated. The Applicant called Dr Sheriff who said that he diagnosed the Applicant as having a musculo ligamentous strain and that he may have chronic pain syndrome. Dr Sheriff was unable to be confident about his prognosis. He had discussed with the Applicant that he may not be able to work in a factory type position again, and that he had been constantly monitoring the Applicant's mental position. Dr Sheriff said that he did not see the Applicant over the period 28 April to 3 June. His view was that it was unlikely that the Applicant would have recovered over that period given that he presented on 3 June stating that the pain had become severe. Dr Sheriff's evidence was that he appeared much worse on that day. Dr Sherrif's evidence was that his management of the Applicant had been designed to encourage the Applicant to return to work in order to maintain his morale. He stated that when he saw the Applicant on 26 April 1995, he believed he could try some rapid movements involving abduction of his arms. He said how well he performed duties involving those movements would depend on his pain threshold. The Respondent called Ms Nicky Newell ("Newell"), a highly qualified rehabilitation specialist who gave evidence that she assessed the Applicant as suitable for the duties in the handbrake section, and by letter dated 8 May, she wrote to Dr Sheriff indicating that, but received no contact from him. The Applicant maintained that he told her that he was suffering from pain. Her unchallenged evidence was that the Applicant did not indicate that he was incapable of doing the job in the handbrake section. She did say, however, that over the period she had difficulty communicating with the Applicant. Did the Respondent have a valid reason to terminate the Applicant's employment? The Respondent carries the onus of proof that had a valid reason to terminate the Applicant's employment. I accept the evidence of the Respondent's witnesses that the Applicant simply refused to perform the duties that were allocated to him over the period 9 to 26 May. I am satisfied that at no time did the Applicant raise with anyone at the plant that there was any physical reason why he could not perform those duties. He refused to treat the matter seriously and to address his responsibility to perform the duties allocated to him. The evidence of the Respondent's witnesses is corroborated by the contemporaneous documents kept by Kenworthy. Further, the Applicant failed to produce any witnesses to challenge the Respondent's version of events. Perhaps most importantly, the Applicant failed to produce to the Respondent over that period any medical certificates which indicated that he was unable to work. This is despite seeing three doctors, including the Respondent's own doctor, over that period. Further, he had previously produced, on a monthly basis, WorkCover "Certificates of Capacity" from Dr Sheriff. It follows from this that the Respondent, faced with the Applicant refusing to perform his duties, was entitled to terminate his employment. It had a valid reason to do so. I further reject the argument that the termination infringed section 170DF(1)(f) of the Act. That it did infringe the provision was never raised by the Applicant's counsel in any formal way. Further, it was never put to any of the Respondent's witnesses that a reason for terminating the Applicant was "physical or mental disability". On the evidence, in any event, I am satisfied that "physical or mental disability" was not the reason for the termination. It follows that I am satisfied that the Applicant has discharged its onus of proof under section 170DE(1) of the Act. The Applicant's counsel maintained that the termination, in any event, infringed sections 170DE(2) and 170DC of the Act. The process invoked by the Respondent prior to termination and on 26 May accorded with proper practice in a large workplace. The union was involved at all times. The final warning was confirmed in writing. I find that an interpreter was provided to assist the Applicant at the disciplinary meetings, including the meeting on 26 May. The Applicant, I find, in any event, understood the position as he had reasonable simple English. The Respondent had squarely put the allegations to the Applicant. He was given a fair go. He has not called any evidence from the shop stewards to indicate that the process was flawed. Further, I am satisfied that the termination was not substantively unfair or unreasonable or harsh. I accept the Respondent's evidence that there were no other suitable light duties jobs available. The employer had made reasonable efforts to provide those duties for a period from the time the Applicant sustained what he said was a work-related injury. The final job was, on the evidence available to the Respondent, within the capabilities of the Applicant. It was further argued that the termination infringed the Act by reason of the provisions of Section 122 of the Accident Compensation Act (Victoria). This provision imposes certain obligations on an employer where an employee has an entitlement to weekly payments of compensation. Those obligations do not prevent a termination of employment. Those obligations do not prevent a termination of employment being lawful under the Industrial Relations Act. The obligations remain under the Accident Compensation Act independently of the existence or non-existence of an employment contract. There is no basis for the submission. It follows from this that the Applicant has not discharged his onus of proof under sections 170DC and 170DE(2) of the Act and that the application must be dismissed. The Order of the Court The application is dismissed. MINUTES OF ORDERS THE COURT ORDERS: 1. The application is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: 18 September 1995 Solicitors for the Applicant: Messrs Patrick Robinson & Co. Counsel for the Applicant: Mr Triscott Solicitors for the Respondent: Messrs Freehill Hollingdale & Page Counsel for the Respondent: Mr Parry Date of hearing: 6, 7 & 8 September 1995 Date of judgment: 8 September 1995 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - VALID REASON - employee failing to perform duties - whether reason related to physical or mental disability - whether provisions of workers compensation legislation prevent termination of employment - whether employee accorded PROCEDURAL FAIRNESS - whether HARSH, UNJUST OR UNREASONABLE. Industrial Relations Act 1988 ss.170DC, 170DE and 170DF. Accident Compensation Act (Victoria) 1985 s.122. SHENG HUANG -v- FORD MOTOR COMPANY OF AUSTRALIA No. VI 3121 of 1995 Before: Judicial Registrar Murphy Place: Melbourne Date: 8 September 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3121 of 1995 B E T W E E N : SHENG HUANG Applicant AND FORD MOTOR COMPANY OF AUSTRALIA Respondent MINUTES OF ORDERS Judicial Registrar Murphy 8 September 1995 THE COURT ORDERS: 1. The application is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.