CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - CAPACITY AND OPERATIONAL REQUIREMENTS - HARSH, UNJUST OR UNREASONABLE - REMEDY INDUSTRIAL RELATIONS ACT 1988 , ss170DE, 170EA PAUL CZISLOWSKI v BOYNE SMELTERS LIMITED No. QI95/1043 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 13 OCTOBER 1995 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1043 QUEENSLAND DISTRICT REGISTRY BETWEEN: PAUL CZISLOWSKI Applicant AND: BOYNE SMELTERS LIMITED Respondent MINUTE OF ORDERS BEFORE: BOULTON JR PLACE: BRISBANE DATE: 13 OCTOBER 1995 THE COURT ORDERS THAT: 1. The application be allowed. 2 The respondent pay to the applicant the sum of $2,418 within 14 days of today. NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1043 QUEENSLAND DISTRICT REGISTRY BETWEEN: PAUL CZISLOWSKI Applicant AND: BOYNE SMELTERS LIMITED Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 13 OCTOBER 1995 REASONS FOR JUDGMENT Background. The applicant was employed by the respondent as a smelter operator maintainer level 3, at the respondent's alumina smelter at Gladstone, Queensland. He commenced employment with the respondent on 1 November 1993. The applicant is now aged 25, having been born on 23 February 1970. On 14 July 1994 while on his way to work, the applicant suffered an injury to his left shoulder when he fell from a bicycle he was riding. He went to work and sought medical assistance on his arrival there. He had no time off work until he found it necessary to have his shoulder operated on by a Dr Malisano, orthopaedic surgeon, on 10 August 1994. In the meantime he had not returned to the normal arduous duties of his job but had been doing clerical work for his employer. After convalescing from the operation, the applicant returned to work in early October 1994, still performing clerical duties. It was common ground between the parties that there were certain essential tasks of the applicant's usual position. These were connected with the reconstruction of pots used in the production of aluminium. The first was ramming pots, which involved ramming a carbon paste mixed with pitch in the slots between the cathodes of pots so that the pots when in use did not leak. Ramming was also done to seal any side wall gaps in pots. It was heavy and uncomfortable work. The second was the ability to climb vertical ladders, and the third was the use of a combination of high and low pressure water to wash out pot cells. The ramming referred to involved the use of a pneumatic tool which the applicant estimated would be used for the equivalent of 30 per cent of one day per week. After his return to work in October 1994, the applicant underwent a rehabilitation program. He gave evidence that by about mid-January 1995, he was back doing all the duties of his usual job apart from pot ramming. It is, however, more accurate to say that he felt by then that the other tasks were within his capabilities, he not having tried them all. In early February 1995 he tried using the pneumatic tool but its uncontrolled movement caused him a lot of discomfort. The respondent had been actively monitoring the applicant's progress since his return to work. Meetings had been held between those on the respondent's staff concerned with rehabilitation, a Mr Dazeley, the manager of the unit in which the applicant worked, the applicant and union representatives. The respondent had had the benefit of reports from Dr Malisano (he having performed the surgery on the applicant). It was concerned about the applicant's ability to be able ever to fully return to the usual duties of his employment. In a report dated 19 January 1995 to the Workers' Compensation Board of Queensland, Dr Malisano had written: His condition may take some months to resolve, however it may also be permanent. It is not unreasonable to consider that his condition is stable and stationary. I would recommend alternative duties as Paul continues to suffer his symptoms. He had also advised a continuation of the applicant's rehabilitation. The respondent employed a Dr Turner, a specialist occupational physician as its principal adviser, health and safety. She had been involved in monitoring the applicant's progress at work. Dr Turner spoke with Dr Malisano on 30 January 1995 about the applicant's condition, and her note of that conversation reads as follows: If Paul were to continue working/wt lifting despite the pain, he would be doing himself no further harm ie working with pain would neither prolong recovery nor cause deterioration in the condition. It is only a matter of how much pain Paul is prepared to tolerate. A case management meeting occurred on 31 January 1995. Mr Dazeley, who attended, raised the prospect of the applicant receiving a separation package if a final decision were made that he could not perform the role for which he was employed. Dr Turner related her recent conversation with Dr Malisano. The applicant asked Mr Dazeley to explore other employment options for him with the respondent. A further case management meeting occurred on 9 February 1995. In the meantime, as I have noted, the applicant had tried ramming but suffered discomfort and pain to the extent that he saw a doctor. Notes of that meeting record the applicant as having said that he felt "hand ramming is out forever." He also said he was waiting for Dr Malisano to phone him back to discuss it. Dr Turner stated that another job on‑site was the best solution. Mr Dazeley said he would look around to see if any other jobs were available; failing that, a separation package would be looked at. On 17 February 1995 the applicant, his union representative, Mr Dazeley and a Mr Egner met. Since the last meeting, Mr Dazeley had tried to find a job for the applicant elsewhere on-site, but without success. The applicant's employment was then terminated, with effect from 24 February 1995. Issues The case for the applicant was that his termination was harsh, unjust or unreasonable because it was premature. In other words, more time should have been allowed to elapse before any decision to terminate was made. The respondent's position was that not only did it have a valid reason for the termination but, in the circumstances then known to it, its decision could not be impugned; nor could there be any criticism of the procedures it adopted in coming to that decision. Findings As to the latter aspect, I agree. Indeed, no criticism of those procedures was advanced on the applicant's behalf. I am satisfied that the respondent did have a valid reason for the applicant's termination, within the meaning of subsection 170DE(1) of the Industrial Relations Act 1988 (the Act), connected with the applicant's capacity and based on its operational requirements. Was the termination otherwise harsh, unjust or unreasonable? I conclude that it was, for the reason advanced on the applicant's behalf. In coming to this conclusion, I am influenced by the following facts: the applicant's one attempt only at ramming since his return to work; the timing of that attempt in relation to his termination; Dr Malisano's opinion as at 19 January 1995, in conjunction with his evidence before me; and the fact that Dr Turner had not ever physically examined the applicant. It was put to Dr Malisano in cross‑examination that he had said to Dr Turner in their conversation of 30 January 1995 that he did not expect Paul (the applicant) to recover any further. He said, "I would be surprised if I said that exactly." I accept his evidence. His position was rather, "I have to admit that I was quite willing to just wait for the moment, but I was suspicious that it (the applicant's shoulder) might not improve." Dr Turner's view, as at 9 February 1995, that the applicant was permanently unfit for ramming was premature. I consider that the respondent ought to have allowed further time to elapse before it took the decision to terminate the applicant's employment. That time ought to have been used to obtain a more conclusive opinion from Dr Malisano, in the light of further attempts by the applicant to return to the full duties of his job. It does not appear that the applicant had ever managed to contact Dr Malisano to further discuss his position, between the meeting of 9 February 1995 and his termination eight days later. In these circumstances, the applicant's feeling that hand ramming was out for ever is not as significant as it might otherwise be. Remedy In opening, counsel for the applicant referred to his case as being one for compensation. After the applicant gave his evidence, the question of whether the applicant was seeking reinstatement was specifically raised by the respondent's counsel. The applicant's counsel maintained the stance she had taken in opening. Apart from the question of fairness to the respondent if I were now, uninvited, to consider reinstatement, the evidence is such that I consider I am unable properly to determine the practicability or otherwise of reinstatement. I say this because the applicant gave evidence to the effect that he felt he could now return to all the usual duties of his former job with the respondent. The validity of his view is not supported by any medical opinion. Dr Malisano has not examined the applicant since 19 January 1995. I suspect that the applicant may never have recovered sufficiently to allow him to resume the full duties of his employment. In my view, it would have been reasonable for the respondent to wait until the end of March 1995 before it took the decision to terminate the applicant's employment. On the evidence before me, I consider that a decision to this effect at that time would not have been unreasonable. The applicant claimed that following his return to work, after his accident, he was earning about $12.40 per hour for a 38 hour week, a sum of $471.20 gross. There is a letter dated 17 February 1995 in evidence (part of ex. R1) which deals with what is described as the applicant's net of tax "termination benefits". It suggests that at termination the applicant's gross weekly earnings were more of the order of $403.00. This matter was not further addressed in evidence. The applicant has had employment since. It seems that he did not commence another job until a few months after termination. While he had also assisted in running a fitness centre with his father, I do not consider that any earnings that might have been generated from that source impact on my assessment of what is appropriate compensation for the breach of the Act I have found proved. Doing the best I can on the state of the evidence, I assess appropriate compensation to be the sum of $2,418, which includes allowance for the notice, or compensation in lieu of notice, which the respondent would have been obliged to give the applicant at the end of March 1995 . Orders The orders I make are: (1) The application be allowed. (2) The respondent pay to the applicant the sum of $2,418 within 14 days of today. I certify that this and the preceding FIVE (5) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 13 October 1995 Counsel for the Applicant: Miss Beal Solicitor for the Applicant: C.A. Sciacca & Associates Counsel for the Respondent: Mr Kite Solicitor for the Respondent: Freehill Hollingdale & Page Dates of hearing: 28 & 29 September 1995 Date of judgment: 13 October 1995