INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2211 of 1995 B E T W E E N : JAYMIE ELLIS Applicant AND CONAUST LTD Respondent Before: Judicial Registrar Murphy Place: Melbourne Date: 26 September1995 REASONS FOR JUDGMENT (Delivered Ex Tempore) Revised from Transcript In this proceeding under Division 3 of Part VIA of the Industrial Relations Act (the Act) there were two threshold issues to be determined. The first was whether the Applicant should be granted an extension of time in which to issue the proceeding. The second threshold issue was whether for the purposes of section 170EA of the Act there had been a termination of employment at the initiative of the employer. It was the Respondent's contention that there had been an abandonment of employment. Only when these two issues were determined in the Applicant's favour would, the Respondent contended, it be necessary to consider the substantive allegation made by the Applicant that his employment had been terminated in breach of section 170DF(1)(a) of the Act. Findings on the Evidence The Applicant commenced as a crane driver with the Respondent on 14 February 1992. On 25 May 1994 he requested and was granted an extended period of annual and long service leave. He was due to recommence work on 9 August 1994. On 7 July 1994 the Applicant sustained a fall in a shop and suffered injuries to his right elbow and shoulder. He saw medical practitioners and was referred for physiotherapy. Shortly before he was due to return to work the Applicant notified the Respondent that due to the accident he would not be able to resume work as scheduled on 9 August. On 10 August he had a discussion with Mr Sammut, the Human Resources Manager of the Respondent, and sought to utilise his sick pay entitlements. He produced a medical certificate. He was advised of his sick pay entitlements and that when these expired he would be on leave without pay. The terms of the Applicant's employment are governed by the Stevedoring Industry Award 1991 (the Award) and by an Enterprise Agreement (the Agreement) approved under the Act. In 1992 the parties to the Agreement entered a Memorandum of Agreement (the Memorandum) under the auspices of a 1989 In-Principle agreement between them. The Memorandum provides for a system of make-up pay for persons unable to attend work and who had exhausted sick leave entitlements. In essence, subject to certain conditions, the Respondent employer agreed to pay the difference between the Department of Social Security sickness benefits and the employee's previous weekly rate of pay. On 14 September the Applicant, by then having exhausted his sick leave entitlement, sought to access his entitlements under the Memorandum. On 14 October the Respondent, as it was entitled to do pursuant to the Memorandum, asked the company's Rehabilitation Consultant, Dr Ho, to assess the Applicant's capacity for work. Dr Ho reported back to the Respondent by letter dated 25 October. His assessment was that the Applicant was fit to resume his normal duties. On 4 November the Respondent sent a letter to the Applicant enclosing Dr Ho's report and advising that the Respondent required him to return to work. On 7 November the Applicant presented Sammut with a short report from Dr Goldberg to the effect that he was unfit for work. The Applicant was advised that he was required to provide a full and detailed opinion countering Dr Ho's opinion, otherwise he was required in accordance with Dr Ho's opinion to return to work. The Applicant, in an angry exchange, protested that he did not have to provide such a report. Subsequently on 9 November 1994 the Applicant forwarded to Sammut a further report from Dr Goldberg which stated that the Applicant was "unfit for normal duties". The Applicant was referred by Dr Goldberg to a specialist rheumatologist. On 23 November the Respondent's "return to work co-ordinator", Ms Simpson, prepared a return to work plan for the Applicant. That plan was the subject of a discussion between Dr Ho and Dr Goldberg. Around that time the Respondent received a report from a Mr Engel, a rheumatologist, indicating that the Applicant would be off work for two or three weeks while having physiotherapy. Following this report it was Sammut's evidence that the Respondent expected the Applicant to return to work shortly prior to or after Christmas. The Applicant saw Dr Goldberg on 9 December 1995. On 22 and 28 December the Applicant saw a Dr Whitaker. He practised at the same World Trade Centre Clinic as Dr Acheson, a doctor who the Applicant had originally seen in July. Dr Whitaker certified the Applicant as unfit for work. On 16 January Sammut discussed with Dr Whitaker a return to alternative duties along the lines of duties that had been earlier discussed and proposed to Dr Goldberg. On 30 January the Respondent again arranged for the Applicant to see Dr Ho. The Applicant was seeing a specialist on 14 February and did not attend. On 9 February the Respondent again wrote to the Applicant asking that he contact it to arrange a return to work program or be medically examined by Dr Ho. In response the Applicant advised Sammut that he was seeing his doctor that week and he or the doctor would be in contact by the end of the week to advise the position. The Applicant refused to see Dr Ho. The Respondent forwarded a revised return to work plan to Dr Acheson on 15 February. Neither the Applicant nor his doctor contacted the Respondent that week. On 21 February the Respondent wrote to the Applicant with a further request that he return to work to commence a program of rehabilitation to normal duties or, alternatively, contact the Respondent to arrange an appointment to see Dr Ho. The Applicant contacted Sammut and refused to do either. He offered to see any other mutually acceptable doctor; this was declined by Sammut. On 23 February the Applicant was advised that the Respondent took the view that he had abandoned his employment given that he had refused to see Dr Ho or attend for work as directed. The Applicant said that he received the letter advising him that his employment had been abandoned on 27 February 1994. On 8 March the Applicant lodged an application with the Victorian Employee Relations Commission. He was advised by staff there to see an organisation called Job Watch. Around 10 March he was having personal difficulties as the bank was seeking to evict him from his home. At some stage he was advised by the ACTU that he could make an application to the Court. He finally did so on 27 March, some 16 days out of time. Since February the Applicant's condition has improved. He said that he felt 95 per cent fit as at the date of the hearing. Generally there was little contest in the evidence I have just recounted. Where there was a contest I preferred the evidence of the Respondent and in particular Sammut who produced a sheath of contemporaneous file notes. Extension of time The first issue to be determined is whether the Applicant should be granted an extension of time under section 170EA of the Act to issue his application. The Applicant's evidence that he was unaware of a remedy under the Act, as distinct from his application in the ERC, until shortly before issuing the proceeding was not strongly challenged by counsel for the Respondent. In any event the Applicant gave evidence of other personal difficulties around that time. The Respondent led no evidence of prejudice. Applying the principles endorsed in Transport Workers' Union of Australia v National Dairies Limited (No 2) (1994) 57 IR 186 I am satisfied that, given the matters just discussed, and the relatively small extension sought it is appropriate to allow an extension of time to the Applicant to issue these proceedings until 27 March 1995. Abandonment or termination The Respondent sought both at the time and in this Court to characterise what had happened here as abandonment of employment. The concept of abandonment of employment is only a species of conduct which can be characterised as a repudiation of the employment contract. The issue here is to ascertain whether as a matter of contractual principle what happened was the termination of the employment at the initiative of the employer. Such an exercise requires an analysis of what happened to ascertain what was the real causal event which gave rise to the termination of employment. Here the Applicant was, in the period from September 1994 until February 1995, on leave without pay from his employer. He had, I find, been excused by his employer from complying with his obligation to tender his services. His leave status was not the subject of any provision in either the Award or the Agreement. In the Memorandum the parties had accorded the Applicant certain entitlements provided he met conditions; those conditions included that he attend an employer's medical practitioner. The entitlements were also excluded where alternative duties were available. From 14 September the Applicant sought his entitlements under that Memorandum. Sammut's evidence was that in the first instance the Respondent's requirement that the Applicant be examined by Dr Ho was in order to ascertain whether the leave without pay should be continued. The Respondent was not strictly relying on its rights under the Memorandum. Sammut's evidence was that the Applicant was the first person to actually formally make a claim under the Memorandum. I accept Sammut's evidence that the actions of the Respondent in seeking to have the Applicant examined by its own medical practitioner were part of the usual practice for all its injured employees to see if the Applicant was suitable for the purposes of the Respondent's quite extensive and well resourced return to work program. Given the fact that the Applicant from early September 1994 had no entitlement to sick leave under the Award I am satisfied that it is reasonable to imply into the contract of employment here that the Applicant comply with the Respondent's reasonable requirements relating to his unpaid leave. It follows from this that the Respondent was entitled to make the requests that it did in the letters of 8 November, and 9 and 21 February 1995. The Applicant was under a duty to meet the Respondent's reasonable requests that he either return to work on a rehabilitation program or he substantiate his inability to do so by undertaking an examination with the Respondent's rehabilitation specialist, Dr Ho. The Applicant refused to meet either of those requests; instead on 13 February he promised to contact Sammut by the end of the week or get his doctor to. On 22 February he agreed to attend a mutually agreed doctor. In making the latter offer he was purporting to rely on a provision in the Agreement. This clause is, I find, inapplicable as it relates to a form of grievance resolution applicable where there is a dispute about the ability of employees to carry out duties within particular classifications. The provision in the Agreement is not applicable to a situation of leave without pay. In any event the particular section relied on specifically recognises the right of the Respondent to obtain its own medical opinion. Here, in February 1995, the Respondent was seeking its own updated opinion as it was entitled to. It follows from what I find was the unreasonable refusal of the Applicant to respond to the Respondent's requests in February that these actions constituted a repudiation of his contract of employment. The repudiatory actions were accepted by the Respondent in the letter of 23 February where it characterised them as constituting an abandonment of the contract. The Respondent has in my view wrongly labelled what it did; the legal effect is the same however. I find that the actions of the Respondent in accepting the repudiation of the contract by the Applicant was the operative cause of the termination of the Applicant's employment. The step or steps "that effectively terminated the employment or purported to do so were taken by" the Respondent: Grout v Gunnedah Shire Council (1994) 1 IRCR 143 at 161. The employment has thus been terminated at the initiative of the Respondent and the Court has jurisdiction under section 170EA of the Act. Has the Act been breached? The sole provision of the Act that the Applicant alleged that the Respondent breached was section 170DF(1)(a) which provides that: "an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: (a) temporary absence from work because of illness or injury;" Under section 170EDA(2) the employer carries an onus of proof that it did not terminate the Applicant's employment for a reason that included "temporary absence from work because of illness or injury". The circumstances of the termination that I have just discussed show that the operative reason for the termination of employment was the refusal of the Applicant to respond to the Respondent's request in its letter of 21 February. I am satisfied that a reason why the Respondent acted was not temporary absence from work due to illness or injury. As far as the Respondent was concerned the Applicant's absence from work was not temporary, it was indefinite. The Respondent had a report dated 25 October 1994 from its own Dr Ho that the Applicant was fit for work. Sammut had been advised by Dr Whitaker in mid-January that he felt the Applicant would be fit for alternate duties. The Respondent had noted that the Applicant appeared to be changing, without explanation, his medical practitioners. All these matters are relevant to whether or not the reasons of the Respondent included one prohibited by section 170DF(1)(a). Those factors show that as far as the Respondent was concerned the absence did not appear "temporary". Also, in the light of the Applicant's refusal to see the Respondent's medical practitioner the reason did not relate to "illness or injury". Further, the Respondent could not be said to have sought to take advantage of the Applicant by imposing unreasonable requirements on him to return to work and then taking advantage of his failure to meet those requirements. The Respondent had been remarkably patient with the Applicant, given the material in Dr Ho's report. The Respondent therefore has properly seen the absence from work not as temporary but as indefinite. Having regard to all these circumstances the Court is satisfied that the stated reasons of the Respondent, namely, the deemed abandonment of the employment by reason of the failure to comply with its request in the letter of 21 February are the real reasons for the termination of employment. Those reasons do not include a reason prohibited by section 170DF(1)(a). The Court is therefore satisfied that the Respondent has discharged its onus of proof. If I am wrong in my conclusion that the reason for the termination of the Applicant did not include the prohibited reason under section 170DF(1)(a) I should indicate that I accept counsel for the Respondent's argument that the Respondent did not contravene the Act because of the operation of regulation 30D of the Industrial Relations Regulations. My reasons for this conclusion are first, the Applicant was not on authorised leave for the purposes of sub-regulation 30D(2). The Applicant was on leave without pay, but the Respondent, by virtue of the letters of 9 and 21 February, was imposing a condition on the continuation of that leave, namely, submission to an examination by Dr Ho. The Applicant refused to comply with that requirement and so it is appropriate to characterise his leave as unauthorised. Further, the Award was silent on this type of extended sick leave so the Applicant was not in a position to bring himself within sub-regulation 30D(3). In any event, as at the date of the termination the Applicant had failed to comply with the usual sick leave provisions of the Award by failing to proffer a medical certificate after the conversation between the Applicant and Sammut on 13 February. Thus the Respondent can rely on sub-regulation 30D(8)(a); Next, the Applicant has not brought himself within sub-regulation 30D(4) because at the time he was terminated he had not proffered any current medical certificate to the Respondent that would indicate that he was unable to work and the likely duration of the absence; the last medical certificate tendered to the Respondent expired on 15 February. The Respondent can thus rely on regulation 30D(8)(b). Finally, having regard to the duration of the absence, nearly 6 months as at the date of termination, I am satisfied that termination for that reason would not be harsh or unjust or unreasonable under sub-regulation 30D(8)(c). The Applicant has therefore failed to make out his case that the Respondent breached the Act. The application must be dismissed. The Order of the Court 1. That the time for application to the Court be extended until 27 March 1995; 2. The application is dismissed. MINUTES OF ORDERS THE COURT ORDERS: 1. That the time for application to the Court be extended until 27 March 1995. 2. 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 thirteen (13) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: Applicant in person. Solicitors for the Respondent: Freehill Hollingdale & Page Counsel for the Respondent: Mr Chris Barton Date of hearing: 25 September 1995 Date of judgment: 26 September 1995 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - ILLNESS and INJURY - whether failure to attend for alternative duties or medical examination constitutes ABANDONMENT or repudiation of EMPLOYMENT CONTRACT Industrial Relations Act 1988 ss.170DF, 170EA, 170EDA Industrial Relations Regulations, Regulation 30D CASES: Grout v Gunnedah Shire Council (1994) 1 IRCR 143 Transport Workers' Union of Australia v National Dairies Limited (No 2) (1994) 57 IR 186 JAYMIE ELLIS -v- CONAUST LTD No. VI 2211 of 1995 Before: Judicial Registrar Murphy Place: Melbourne Date: 26 September 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2211 of 1995 B E T W E E N : JAYMIE ELLIS Applicant AND CONAUST LTD Respondent MINUTES OF ORDERS Judicial Registrar Murphy 26 September1995 THE COURT ORDERS: 1. That the time for application to the Court be extended until 27 March 1995. 2. The application is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.