Roger Coyne v Ansett Australia Ltd [1995] IRCA 712

DECISION NO: 712/95 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - application for extension of time - work related injury - whether termination HARSH, UNJUST OR UNREASONABLE - REINSTATEMENT INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170DE, 170DF(1)(a), 170DF(1)(f), 170EE Turner v K & J Trucks of Coff's Harbour Pty Ltd, unreported, IRCA No. 60/95, 10 August 1995 Mahnken v Saunders Logging Pty Ltd (1994) 57 IR 237 Bishop v The Queen (1981) 58 FLR Duff v Freijah (1982) 62 FLR 280 Maric v Comcare (1993) 40 FCR 244 AWU-FIME Amalgamated Union and Farrell v Conagra Wool Pty Ltd (1995) AILR 3-015 Gorgevski v Bostik (Australia) Pty Ltd (1991) AILR 355 and (1992) AILR 186 Byrne and Frew v Australian Airlines Limited (1994) AILR 165 ROGER COYNE -v- ANSETT AUSTRALIA LTD - WI 95/1956 BEFORE: BOON JR PLACE: PERTH DATE: 22 DECEMBER 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 96/1956 BETWEEN: ROGER COYNE - Applicant AND: ANSETT AUSTRALIA LTD - Respondent MINUTE OF ORDERS BEFORE: BOON JR PLACE: PERTH DATE: 22 DECEMBER 1995 THE COURT ORDERS THAT: 1. The respondent reinstate the applicant to the position in which he was employed immediately before his accident in 1993. 2. The respondent pay to the applicant compensation in the sum of $375.86 per week from 27 March 1995 until the date of reinstatement. 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 95/1956 BETWEEN: ROGER COYNE - Applicant AND: ANSETT AUSTRALIA LIMITED - Respondent BEFORE: BOON JR PLACE: PERTH DATE: 22 DECEMBER 1995 REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act arising out of the alleged unlawful termination of the applicant's employment by the respondent. The applicant is seeking reinstatement and compensation. Prior to the hearing of the substantive application, this Court heard an application made on behalf of the applicant that the time limited for the filing of the substantive application be extended to 11 August 1995. The substantive application was considerably out of time as the applicant received written notice of termination on 20 February 1995. BACKGROUND The applicant is aged 49 years and was employed by the respondent, Ansett Australia Limited, as a customer service officer for a lengthy period of time. Before the hearing of the substantive application, the parties tendered a Statement of Agreed Facts. That statement reads as follows: "1. The Applicant was employed on two separate occasions. The first being 16 July 1973 until his resignation on 26 April 1981. The Applicant applied for employment and commenced on 23 November 1981 until his termination on 20 February 1995. 2. The Applicant reported a number of work related accidents/injuries which were subsequently claimed for and accepted by the Respondent's workers compensation insurer, QBE Insurance Ltd. 3. At the time of the Applicant's injury, he was employed in the capacity of a full time multi-skilled Customer service officer. In accordance with the Clerks (Domestic Airlines) Award 1980, the multi skilled level of a Customer Services Officer involves; check-in, editing, ticketing, lost baggage, gate duties, service desk, tarmac, departure co-ordination, boarding control and Golden Wing. 4. The Customer Service Officers based at Perth Airport work a 38 hour week, 19 day month based on a seven day rotating roster. The earliest start being 0430 and the latest start being 1700 and various starting times between these times. Rest breaks include a 15 minute tea break and a 30 minute meal break. 5. The Applicant suffered a work related injury to his neck and back on 15 August 1993 and subsequently filed a claim under the relevant Workers Compensation legislation. 6. In the period 15 August 1993 to 20 February 1995 the Applicant was at various dates certified by medical practitioners to be totally unfit for all of the duties referred to at paragraph 3 hereof. 7. During this period the Applicant underwent a series of medical assessments and received medical care and attention in the form of medication, x-rays and physiotherapy. 8. The Applicant's rehabilitation program was supervised by IRS Total Injury Management referred by QBE Insurance Ltd on 27 September 1993 until closure on 10 March 1995. 9. The Applicant was involved in a return to work program in relation to the injury sustained on 15 August 1993. 10. The Applicant returned to work as partially unfit on gradual return, six hours per week (3 days per week for 2 hours per day) for the period 17 January 1994 - 7 February 1994. He was restricted to the boarding lounge. 11. The Applicant was declared totally unfit from 7 February 1994 to 10 February 1994. 12. The Applicant was referred by his General Practitioner, Dr Saint to Professor Sikorski (Orthopaedic Surgeon). Professor Sikorski's report dated 25 February 1994 stated that the Applicant was suffering pain in lower back, fatigue and anxiety. He also reported that the Applicant had significant pain, mobility restrictions and was grossly overweight. 13. The Applicant was admitted to hospital in February 1994 and declared totally unfit for a period of six weeks by professor Sikorski on 11 March 1994. 14. The Applicant was declared partially unfit, and returned to work on a gradual basis involving modified duties for the period 26 April 1994 - 3 May 1994 for 3 hours per day, 5 days per week. 15. The Applicant was declared partially unfit, and returned to work on a gradual basis involving modified duties for the period 6 May 1994 - 13 May 1994 for 4 hours per day, 5 days per week. 16. The Applicant attended work for one day only during the week 16 May 1994 - 20 May 1994 for a period of 4 hours, and was declared totally unfit for the remainder of that week. 17. The applicant requested, and was granted two weeks annual leave commencing 23 May 1994. 18. The Applicant was declared totally unfit for a further two weeks immediately following his annual leave; 6 June 1994 - 16 June 1994 inclusive. 19. The Applicant was declared partially unfit and returned to work on gradual basis involving modified duties for the period 17 June 1994 until 1 July 1994 for 4 hours per day, 5 days per week. Modifications were made, through consultation, with IRS Total Injury Management, the Respondent and the Applicant, to the duties performed and work station. 20. The Applicant requested, and was granted annual leave for two weeks, 4 July 1994 - 15 July 1994 inclusive. 21. The Applicant was declared partially unfit and returned to work on gradual basis involving modified duties for the period, 18 July 1994 - 29 July 1994 for 4 hours per day, 5 days per week. 22. The Applicant was declared partially unfit and returned to work on gradual basis involving modified duties for the period 1 August 1994 - 5 September 1994 for 4.5 hours per day, 5 days per week. 23. The Applicant was declared totally unfit for the period 5 September 1994 - 9 September 1994. 24. The Applicant was declared partially unfit and returned to work on gradual basis involving modified duties for the period 12 September 1994 - 20 December 1994 for 4.5 hours per day, 5 days per week. 25. The Applicant applied for and was granted annual leave for the period 2 January 1995 to 6 January 1995 inclusive. 26. The Applicant was declared partially unfit and returned to work on gradual basis involving modified duties for the period 9 January 1995 - 27 January 1995 for 4.5 hours per day, 5 days per week as per previous return to work program. 27. The Applicant applied for, and was granted annual leave for the period 30 January 1995 - 10 February 1995. 28. The Applicant was declared partially unfit and returned to work on gradual basis involving modified duties for the period 13 February 1995 - 17 February 1995 for 4.5 hours per day, 5 days per week. 29. Pursuant to orders made by consent in the District Court of Western Australia in actions numbered 5445 of 1994 and 323 of 1995, the Applicant received sums totalling $35,000.00 in respect of damages for injuries sustained to his neck and back in the course of his employment with the Respondent. Refer annexure A hereto. 30. The Applicant's employment was terminated effective from 20 February 1995. The parties in conference on that date were unsuccessful in identifying and agreeing upon any alternative 'lighter' duties for the Applicant of either a full time or part time nature, other than the interim arrangements in place at the time. 31. The Applicant was informed by the Respondent in writing of the termination. The Applicant was paid five weeks in lieu of notice in addition to all outstanding Annual Leave and Long Service Leave entitlements. Refer annexure 2 hereto." Evidence was also given verbally by several witnesses to which I shall refer below. THE APPLICATION FOR AN EXTENSION OF TIME In support of his application for an extension of time, the applicant filed two affidavits. In an affidavit sworn on 10 October 1995 Mr Coyne, the applicant, stated that after the meeting on 20 February 1995 at which his employment was terminated Mr Coyne telephoned his union representative, Matthew Hammond, and asked whether he had any legal remedies in relation to the termination. Mr Hammond apparently advised Mr Coyne that there was nothing he could legally do in relation to the termination. Mr Hammond did not advise Mr Coyne that any application was to be filed in this Court within 14 days of the receipt of written termination. Mr Hammond subsequently wrote Mr Coyne a letter dated 21 April 1995 referring to his attendance at the meeting with Ansett on 20 February 1995. That letter reads in part as follows: "Ansett put their position which is basically that this issue had been ongoing for some time. Ansett had adhered to its legal obligations in keeping the job open and trying to rehabilitate Mr Coyne. Concerning the proposed jobs, none of these are acceptable to Ansett based on their functional requirements and the present physical capabilities that Mr Coyne was able to perform. Responding to this was a proposition from Mr Coyne and myself that Ansett allow Mr Coyne to take his accrued leave which would total approximately 32 weeks. By proposing this and the possibility of unpaid leave, it was hoped that Mr Coyne's medical condition would improve within in that time, thus enabling him to perform a wider range of duties. In my opinion, this proposal was entirely reasonable. Unfortunately, this sentiment was not shared by the company who stated that a decision had to be made at some time and this proposal would only delay that decision. After further discussion, it was made clear to Mr Coyne that he no longer had his job." The contents of that letter were not sworn to by Mr Hammond and were not in evidence as to proving what was said. Rather, the letter was annexed to Mr Coyne's affidavit to explain his actions following the termination of his employment. It was clear that between 20 February and 21 April 1995 Mr Hammond represented Mr Coyne in relation to a possible claim for concessional travel benefits. That claim was not allowed by the respondent. By letter dated 25 April 1995, Mr Coyne wrote to his solicitor and sought legal advice in relation to the termination. He enclosed the letter from Mr Hammond dated 21 April 1995. Mr Coyne stated in his letter to his solicitors that "Matthew confirms Ansett's harsh action with my dismissal from employment". Mr Coyne further stated "I will need your assessment of the likely success of this action and associated costs prior to any commencement". It is also clear from the terms of his letter that Mr Coyne's solicitors were representing him in relation to some other, unrelated, business matters. Mr Coyne's affidavit states that by letter dated 1 May 1995 his solicitors requested that he make an appointment to provide a comprehensive proof of evidence prior to the provision of their legal opinion on the likely success of an action against the respondent. The solicitor's letter makes no mention of any time limit for the filing of an application. By letter dated 23 June 1995 (which was not put before this Court) Mr Coyne's solicitors provided him with a written opinion in relation to the termination. It is also apparent that the solicitors required some payment of money on account of costs as the next action in this matter was a letter from Mr Coyne to his solicitors dated 28 July 1995 which refers to money paid into a trust fund for the purpose of "presenting a case regarding my unfair dismissal action against my former employers. As suggested by you in a telephone call on Wednesday." It was not until a letter from his solicitors dated 3 August 1995 that Mr Coyne was advised that the substantive application did not meet the 14 day time limit and that he would have to make an application for an extension of time supported by the reasons for the delay. Mr Coyne's solicitors then filed an application at the Industrial Relations Court on 11 August 1995. Mr Coyne's affidavit concludes at paragraph 15: "I understand that the application does not meet the time limits and the reason for delay is that at all material times Hammond of the ASU did not advise me of the time limits in which I was required to file my application. I only obtained legal advice in relation to my application from my solicitors in or about June 1995. By their letter dated 3 August 1995 my solicitors advised me that my application was to be filed within 14 days after I had received written notice of termination of employment. By letter dated 23 June 1995 my solicitors provided me with a comprehensive opinion in relation to this matter and I was only in a position to place my solicitors in funds to proceed with my application on 28 July 1995." It was apparent from the Court file that there had been some confusion relating to the filing of the substantive application and subsequent documents. The applicant's solicitors initially filed an application on 11 August 1995, together with an affidavit of Mr Coyne in support of an application for an extension of time. The initial application filed was defective in some respects. The respondent, however, filed a notice of employer's appearance on 18 August 1995. A further substantive application was filed on 21 August 1995. For the purposes of the application to grant an extension of time I took into account the fact that the first application, albeit somewhat defective, was filed on 11 August 1995. Counsel for the applicant relied on the fact that Mr Coyne, immediately after termination, sought the advice of his union representative and received advice that there was nothing he could do legally in relation to the termination. This was said to be the primary reason that the application was delayed. The argument of the applicant was that he had an acceptable explanation for the delay as he actively sought advice, both from his union representative and later on from his solicitors, in relation to the termination of his employment and was not told until 3 August 1995 that there was a time limit for the filing of an application. It was said that the applicant did not receive good advice and that he should not be refused an extension of time because of the omissions of his advisers. It was said on behalf of the applicant that the respondent could not show any prejudice except insofar as there was another person now occupying Mr Coyne's position. There appeared to be no challenge to the substantial merit of the applicant's case by the respondent. The applicant relied on the decision of Justice Beazley in the case of Turner v K & J Trucks of Coff's Harbour Pty Ltd, unreported, IRCA No. 60/95, 10 August 1995. This was not a case where fading memories were going to present a problem. There was already a great deal of affidavit evidence presented to the Court. The respondent filed affidavits by two of its officers, Elizabeth Mounsey and Marc Roberts, in support of its position that an extension of time should not be granted in this matter. The contents of the two affidavits are substantially the same. The affidavits state in part that: · The respondent was not notified until 14 August 1995 that the applicant was challenging the termination. · The onus should be on the applicant to show why the Court should exercise its discretion under Section 170EA(3)(b) in favour of the applicant. · Between February and April 1995 the applicant was represented by a member of his union. After the termination the union continued to make representations to the respondent on behalf of the applicant for concessional travel benefits. The applicant had the benefit of advice from his union, yet at no stage during this period was the termination challenged nor was any attempt made to comply with the statutory time limits. · It is unfair to the respondent that such a late application be entertained by the Court. The respondent acted to replace the applicant and that replacement remains employed by the respondent. The representative of the respondent submitted to this Court that Mr Coyne would have had the benefit of both the State office and the national office of the union to raise the issue of the dismissal but this was not done. Instead, it was said that the matter of concessional travel benefits was the burning issue and the dismissal apparently not. I indicated that there was evidence that Mr Coyne sought advice in relation to the dismissal immediately after the termination but was told by his union that there was no chance of taking the matter further. On behalf of the respondent, it was said that as the respondent has now filled Mr Coyne's prior position it will cause the present incumbent problems if the applicant is eventually reinstated as a result of the substantive application being heard. It was said that the respondent would be prejudiced in this regard. It was acknowledged, however, that since 15 August 1993 when the applicant was injured he had not been performing his pre-accident functions so that the respondent had been obliged to take action, in any event, to have the duties done in some other manner. It was said for the respondent that the onus is on the applicant to come to Court and put forward an acceptable explanation for the delay in the filing of the application. The respondent points to the fact that the applicant did not seek legal advice until 25 April 1995 and even then, the respondent heard nothing from the applicant in relation to contesting the termination decision until 14 August when notification was received from the Industrial Relations Court Registrar that an application had been filed. It was submitted that if the applicant was not satisfied with the advice he received from the union he should have sought a second opinion and contacted his solicitors prior to 25 April. It was pointed out that the solicitors contacted by the applicant were the same solicitors who represented the applicant in relation to a workers' compensation matter. The respondent pointed to the fact that if an extension of time was granted, the respondent would be faced with the situation that it would have to defend its decision in excess of five months after it was made and that there was the issue of matters fading from memory which has been referred to in a number of authorities. Further, the respondent would have to bear additional costs in terms of resources and time to defend the substantive application. It was also stated on behalf of the respondent that if an extension of time is granted it would open up for the respondent a "Pandora's box". It was said that it could not exercise its rights in terms of its contracts of employment with its employees if it meant that at any stage in the future an applicant or a former employee could come to this Court significantly out of time and challenge the decision. The representative for the respondent referred to the decision of Northrop J in Mahnken v Saunders Logging Pty Ltd (1994) 57 IR 237 in which his Honour said at page 237: "These are in circumstances where the Parliament has created a new type of remedy, a remedy should be made available as quickly as possible where an employee's employment has been terminated. Reinstatement may be an order that is made. If such an order is to be made, it should be made as speedily as possible." It was pointed out that it was clearly the intention of the legislature for the remedy under the Act to be effected speedily. As the present application was made 172 days after the termination date, there was a significant delay. The Court was also referred to the case of Bishop v The Queen (1981) 58 FLR 233 in which the appellant was convicted and sentenced in the Supreme Court of the Australian Capital Territory to a term of imprisonment. The Crown filed an appeal against the sentence within the prescribed 21 days after the date on which judgment was pronounced, but the notice of appeal was not served on the appellant until well beyond the time limit specified in the Federal Court Rules. It was held by the Full Court that in the special circumstances of an appeal by the Crown against sentence it would be wrong and unjust, after the prescribed period for filing and service of the notice of appeal had expired without a notice of appeal having been served, to accede to an application by the Crown to extend the time in which service could properly be effected unless special circumstances were established to justify the grant of the indulgence sought. There had to be an acceptable explanation of why the notice of appeal was not served in time. Further, in Duff v Freijah (1982) 62 FLR 280, the Full Court of the Federal Court in an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 said that the applicants had to explain in a satisfactory manner the delay in lodging the application. The Court was further referred to the case of Maric v Comcare (1993) 40 FCR 244 in which the Court referred to the decision of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 with approval. In the Hunter Valley Developments case, Wilcox J (as he is in the Federal Court) referred to a number of principles which may be distilled from the authorities to guide the exercise of the Court's discretion in matters of this kind. Those principles have been referred to in a number of decisions in this Court and, briefly, include the following: 1. It is a precondition to the exercise of discretion in his favour that the applicant for extension show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time. 2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. 3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension. 4. The mere absence of prejudice is not enough to justify the grant of an extension. 5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. 6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion. It was submitted on the basis of these cases and others that there is a clear line of authority which states that the onus is upon the applicant to show good reason why the Court should exercise a discretionary and unfettered power in its favour. The respondent submitted that the applicant had not done this. It was submitted on behalf of the respondent that the fact that the advice the applicant was given was poor or erroneous is not an acceptable explanation. It was conceded, however, that Justice Beazley took a different approach in the Turner case. In that case, at page 10, Her Honour said: "Mr Turner's solicitor was not aware of any time limits. There are a number of decisions to the effect that negligence of the solicitor may be a sufficient reason to extend time". In the Turner case moreover, there was some evidence that the applicant was aware that there would have been some time limit for the filing of an application. In the present case, the evidence is that Mr Coyne was not aware of any time limit. The respondent did not make any submissions as to whether Mr Coyne's substantive application had merit. Mr Lilio, on behalf of the respondent, said "One could assume that the applicant may have a meritorious case". It was submitted that little weight should be given to the merits of the substantive application if both parties appeared to have or professed to have the meritorious case. It was submitted that at the end of the day the Court must decide whether it is fair and reasonable, given all the facts, to exercise the discretion in favour of the applicant. The respondent's submission was that it would not be fair and reasonable to extend time in this case. I put to the parties that it appeared to me from the documents which had been filed that a lot of the facts surrounding the termination were agreed, and that there was not a lot of argument as to what had happened. Instead, this case seemed to turn on the question of how the Court would interpret the consequences of what happened. Mr Lilio agreed that this assessment of the situation was substantially correct. After taking into account the arguments on both sides and the authorities to which I had been referred, I decided to grant an extension of time to the applicant for the filing of the application. I have grave concerns about the delay in this matter and I do think that the finger can be pointed first of all at the union representative but also in particular at the applicant's solicitors. The solicitors ought to have made sure that an application was filed expeditiously and they did not do so. I am satisfied from the affidavit evidence that Mr Coyne was not aware of any urgency at all in this matter until he received the letter from his solicitors dated 3 August 1995. I accept Mr Coyne's explanation in this regard. He did not sit on the matter and wait for a few months as has been implied by Mr Lilio. As soon as Mr Coyne's employment was terminated he sought advice from his union about challenging that decision. He received advice that there was no possibility of challenging the termination, and it was not until some months later, after he received the letter dated 21 April 1995 from his union which indicated that the respondent had been unreasonable, that he sought advice from his solicitors. Some months after that he received advice from his solicitors that there was a possibility of lodging an application in this Court, and even then he was not advised that there was a 14 day time limit until 3 August 1995. I took into account the approach taken by Beazley J in the Turner case in which there was some significant delay despite the fact that the applicant in that case had had advice from a solicitor. In a situation like this, the Court has to balance the interests of the parties. The respondent in this matter has been blameless. It was never made aware that the decision to terminate was challenged. However, because of the peculiar facts of this application, and in particular I refer to the summaries of facts filed by both parties, and the concession by Mr Lilio that the facts of this case are substantially agreed, it was apparent to me that the main issues in this case did not seem to revolve around evidence which may be affected by the fading of memories. Rather it is the interpretation of that evidence which will be important in deciding this case. Because of that, and because the only other prejudice referred to by the respondent is the fact that someone else has been employed in the applicant's former position, I consider on balance that it is fair and equitable to grant an extension of time. I have noted Mr Lilio's comments in relation to the effect this may have on the employer in relation to other employees ignoring time limits, but I do not accept that this will happen. Each case is decided on its own facts. This is an unusual case because of the matters I have just outlined and it is not to be taken that this Court in any way condones the kind of delays that have happened here. I made an order that the time limit for the filing of the substantive application be extended up to and including 11 August 1995. I have already set out above the agreed statement of facts which was submitted by counsel for the applicant. Several witnesses gave verbal evidence. The first of those witnesses was Mr Coyne. His evidence was that in August 1993 he was employed as a multi skilled customer service officer with the respondent. The duties he was performing included any duty that was asked of him by his superior within the role of a multi skilled, Grade 1, customer service officer. About 90% of the duties involved passenger and baggage check-in and the associated computer keying in of passenger information. The shifts were an eight hour shift with possible extensions due to overtime or other commitments. Mr Coyne was also performing some editing functions. It all depended on whether the supervisor of the day allocated the duties to him. Further, he carried out boarding lounge or gate duties. Very rarely was he asked to do ticketing, lost baggage, service desk, tarmac departure co-ordination, boarding control or Golden Wing duties. In previous years, however, he had acted in those capacities and was well versed with most of the jobs. After his injury, Mr Coyne was unable to return to his full pre-accident duties. His rehabilitation provider was the IRS and in particular the co-ordinator, Kylie Forrest. Mr Coyne and Ms Forrest met with representatives of the respondent, including Mr Marc Roberts, on various occasions. At these meetings the other duties Mr Coyne could perform were discussed. Mr Coyne remembered a meeting on 20 February 1995 which he attended with Ms Forrest; Mr Hammond from the union; Mr Roberts; and another representative from the respondent. Mr Coyne's evidence was that when it became quite evident that he would be dismissed at that meeting, he put to the respondent and in particular to Mr Roberts that he be granted all outstanding long service and annual leave for the purpose of giving him some time in order to aid recovery. Mr Coyne said that it was an offer made to Mr Roberts on the basis that there would be no financial burden on the company; that he could take his leave in the hope that he would recover; and that termination of his employment would not be necessary. At the time, the combined leave amounted to some 32 weeks. Mr Coyne said that Mr Roberts and the other employer representative confirmed that they could no longer keep Mr Coyne in Ansett's employ. They said that they had an obligation to hold the job open for some twelve months after the date of the injury, and at that time the twelve months had been exceeded. They said that they had no option but to let Mr Coyne go. Mr Coyne said that the proposal in respect of the accrued leave was first put at a meeting prior to 20 February, perhaps two weeks or so before that date. Mr Coyne described his physical incapacities as at 20 February as improving. He said that after his termination on 20 February 1995 he has undergone a walking programme which has significantly improved his health. Mr Coyne's evidence was that he is now working as a self employed refrigeration and air conditioning contractor. He has been doing this since around 20 March 1995. At first he started off slowly but by June he was working full time. The month of July was a little quiet but in August, September and October Mr Coyne was working full time hours. The physical work entailed in his present job involves heavier work than that of a customer service officer for Ansett. He is now working longer hours than he worked at Ansett. Mr Coyne's evidence was that at this time the business could only support a payment to him of some $200 per week. During cross examination, Mr Coyne confirmed that during 1994 in the course of the rehabilitation programme he was involved in meetings with the rehabilitation providers and the respondent approximately every 21 days. There was discussion of his potential ability to undertake certain duties, which involved an analysis or review of alternative positions. The company was involved in those discussions. Mr Coyne could recall identifying various positions himself which he felt he might be able to perform. Those positions included tarmac duties; the boarding lounge duties that he was already undertaking; editing and Golden Wing. Mr Coyne conceded that it was possible that meetings had occurred early in January 1995, 23 January 1995 and 20 February 1995. He went into those meetings having been informed that if no alternative positions could be identified in the foreseeable future, that one of the outcomes may be termination of his contract of employment. Mr Coyne could recall an evaluation being conducted by Ansett and the rehabilitation providers with regards to a position that he had identified as a possible alternative which he could fulfil in the foreseeable future. That position was in the Golden Wing lounge. The outcome of the evaluation was that the company thought he was not a suitable candidate for work in that area. He himself had some reservations and Kylie Forrest shared that view. Mr Coyne had identified tarmac duties but as that involved stair climbing, Ansett advised him against him against that position. Mr Coyne said that he also identified the reservations and ticketing and editing position but the company saw fit not to move him to that position. He could not recall why the company thought the position was unsuitable. Kylie Forrest was, however, an active participant during those meetings. Mr Coyne said that the other position that he identified was the one he was occupying at that time, namely, the duties of the upper departure lounge. He felt that he had no difficulty in performing those tasks. That was discussed with Kylie Forrest and Ansett. The outcome was that Mr Coyne was advised that due to computerisation and the installation of a bar code type machine in the upper lounge, that position would no longer be available in the future. The position of part-time training officer was suggested by Mr Coyne and this was discussed with the rehabilitation providers and Ansett. Mr Coyne understood that the job was, however, withdrawn and that Ansett had abandoned that position. Mr Coyne said that it was possible that the position of part time customer services supervisor was suggested but he could not remember the details. Mr Coyne recalled that the company had identified a position of reservations sales agent in the city. Mr Coyne, however, did not regard it as suitable and he did not think that the IRS representative regarded it as suitable either. This was because the position was very static and no movement was possible. This would have been bad for his back. Mr Coyne said that before he went to the meeting of 20 February 1995 he understood it was to discuss the outcomes of any suitable employment options. He understood that if there was no suitable option, then dismissal would occur at that meeting. The issue of seeking accrued leave was raised at that meeting and prior to the meeting. He had not been given a response to the suggestion prior to 20 February and it was deemed a request that could not be granted at the meeting on the 20th. The reason given to him was that they had no way of knowing whether the 32 weeks would be sufficient time. It was said that there was no guarantee that he would return or be fit for work within that period of time. There was no mention made of absenteeism as far as he could recall at the meeting of 20 February. Mr Coyne said that he told the respondent's representatives that he felt it was unreasonable that the company couldn't see their way clear to grant his request to take leave in order to try to recover. He also felt it unreasonable that positions that he had identified, that he was confident that he could perform, were not even given a chance. He said that he thought it was unreasonable and unfair. In relation to the application for leave, Mr Coyne said that the healing period was unknown. He was trying to retain a job that he had held down for many years and he did not want to see himself being dismissed. He said there was a degree of desperation in suggesting everything that he possibly could to retain the position with the company. He was prepared to forego the annual leave in the hope that time would be a healer and that he would be able to resume normal duties. The next person to give evidence was Kylie Forrest who is employed as an occupational therapist with IRS Total Injury Management. Ms Forrest said that she took over management of Mr Coyne's rehabilitation in July 1994. When IRS first became involved in the rehabilitation of Mr Coyne, a worksite evaluation was done. A number of reports were prepared. Ms Forrest confirmed that she was involved in a number of meetings with Mr Coyne and representatives of the respondent. Alternative positions were discussed and explored. The intent of the rehabilitation programme was to assist Mr Coyne to return to duties that he was physically capable of performing. There was detailed consideration of alternative positions for Mr Coyne, and in particular reservations, ticketing, editing and tarmac liaison. Mr Coyne himself did not feel that he would be able to carry out a position which involved prolonged sitting and Ms Forrest shared that belief. Ms Forrest could not recall whether Mr Coyne made a request for annual leave or long service leave. It was not documented in any of her file notes. Ms Forrest had no recollection of any such request being made in a formal manner although she said it may have been mentioned by Mr Coyne. Ms Forrest had no recollection of the request being made at any of the formal meetings. Ms Forrest said that at the time the gate lounge and combination of gate lounge and tarmac duties were brought up Mr Coyne had just settled his workers' compensation claim and Ms Forrest had to close her rehabilitation file at that stage. For that reason there was no trial of that position. The rehabilitation was paid for the workers' compensation insurance company. Once the worker's compensation claim was settled, no further rehabilitation could be undertaken unless the worker himself paid for it. Mr Marc Roberts gave evidence that he was formerly the human resources manager of Western Australia for Ansett. Mr Roberts said that he was in attendance at meetings with Mr Coyne and the rehabilitation providers from 19 December 1994 until 20 February 1995. He confirmed that a number of alternative employment options were considered but that there was no suitable employment available for Mr Coyne given his medical advice and rehabilitation progress. Mr Roberts could not recall any request from Mr Coyne for 32 weeks of accrued leave. He said that from the time of his injury Mr Coyne was employed on alternate duties and not at a permanent part time position. Alternative duties carried out by Mr Coyne were part of the customer service officer function but it was not a specific job. He was carrying out those functions which he was deemed by his medical advisers and by IRS as being capable of doing given the constraints of his injury. Mr Roberts said that there seemed to be two categories into which the jobs suggested as possible alternatives fell. Advice from the IRS and medical advice was that Mr Coyne was not suitable or capable of performing the duties in the first and predominant category. Mr Coyne wasn't interested in the jobs in the other category. Mr Roberts said that the decision he made to terminate Mr Coyne's employment was one based on the relevant facts and circumstances at the time. It was made on the basis of medical advice, advice from the IRS and the opportunities available to Ansett in terms of employment. Mr Coyne had repeatedly been forewarned that termination of employment may be an outcome. Mr Roberts said that under federal workers' compensation law the employer has an obligation to leave a job open for twelve months after a worker is injured in the course of his employment. The obligation is to bring the injured worker back as close as possible to his pre-accident status regarding his employment. Mr Roberts said that if the twelve months' time period has passed then termination of employment is an available option. Mr Roberts said that the termination of employment in relation to Mr Coyne had nothing to do with his absences from employment. The issue related to Mr Coyne being able to be rehabilitated back into a position with the company. Mr Roberts said that he recalled Dr Saint's report which suggested that Mr Coyne "may get better in twelve to eighteen months' time". He had to consider whether this was a good bet or not. Dr Saint's medical advice was the catalyst for his decision to terminate Mr Coyne's employment. Before the decision to terminate was made, he considered all the other options, namely vacancies which actually existed with Ansett at the time. Creating a job with a combination of tasks was not an option. The combination of gate lounge and tarmac duties suggested by Mr Coyne was not considered as an option because it was not a job that was available. It would be like creating a job specifically for Mr Coyne. Mr Roberts said that to be a customer service officer, by definition, you have to be able to perform a number of tasks. Mr Roberts acknowledged that if Mr Coyne's supervisor wanted to assign him to tarmac duties for 80% of his shift and gate duties for the other 20% of his shift, that was quite within the supervisor's power. It would, however, be very unusual that they did so. Mr Roberts said that at the time of Mr Coyne's termination there would have been about 70 full time customer service officers employed by Ansett. Ansett has a total staff of around 1500 people. Mr Roberts said that if Mr Coyne had made a suggestion of taking 32 weeks' leave rather than face termination he is not sure that he would have changed his decision, because the decision he made was based on the fact that Mr Coyne may some 18 months down the track still not be available and capable of performing his duties. Mr Roberts acknowledged that Mr Coyne's workers' compensation claim was settled on 17 February 1995. He suggested that it was a coincidence that Mr Coyne's employment was terminated only a few days later. He may have been aware that there would be no further free rehabilitation service provided to the company in respect of Mr Coyne, but he said that it was determined four weeks in advance that the meeting would be on 20 February. The fact that the workers' compensation claim had recently been settled was not, according to Mr Roberts, a factor affecting his decision to terminate Mr Coyne's employment. THE MEDICAL REPORTS A book of medical reports of Professor Sikorski, orthopaedic surgeon, was tendered by consent. The reports make it clear that following an incident at work Mr Coyne suffered a lower back strain possibly involving the lower facet joints of the lumbar spine. Because Mr Coyne was significantly overweight his recovery was hampered. The only treatment which Professor Sikorski could conceive as being useful was that of increasing physical fitness and weight reduction. He did not believe that Mr Coyne had sustained a permanent injury. Professor Sikorski's report of 17 January 1995 indicated that Mr Coyne's capacity for work was at that time limited by his persistent pain. Professor Sikorski believed he was capable of part time work in a sedentary capacity and may be capable of full time work in a sedentary capacity. He was not capable of doing heavy manual work which exposed him to maintained postural demands, recurrent or heavy lifting. The report of Dr Saint, which indicated that he felt in October 1994 that Mr Coyne may be fit to resume his pre-accident occupation in 12 or 18 months' time, has already been referred to. By the time of the hearing of this matter in November 1995, Mr Coyne's condition had improved to the extent that he was able to undertake full time heavy manual work. THE DEMEANOUR OF THE WITNESSES There was nothing in the demeanour of either Mr Coyne or Ms Forrest which caused me any grounds for concern. Mr Roberts was a very articulate and obviously intelligent person. His demeanour, however, I found to be overbearing and dismissive. Although Mr Roberts and Ms Forrest both gave evidence that they could not recall any proposal put up by Mr Coyne that he take 32 weeks' accrued leave rather than face termination of employment, neither appeared certain that it had not been raised. Mr Roberts and Ms Forrest both deal with a significant number of rehabilitation cases in the course of their employment. This was the only matter in which Mr Coyne was involved at the time, with the exception of his workers' compensation claim. On balance, and based partly on the demeanour of the witnesses, I consider it more likely than not that Mr Coyne did put forward a proposal to the respondent that he take 32 weeks' accrued leave rather than face dismissal. THE WRITTEN SUBMISSIONS On behalf of the applicant, it is said that the main issues for determination in these proceedings are whether the termination of the applicant's employment was prohibited by either Section 170DF(i)(a) of the Industrial Relations Act 1988 (a temporary absence from work because of illness or injury) or Section 170DF(1)(f) (physical or mental disability). If the termination did not infringe the provisions of Section 170DF, the Court must determine whether the termination was for a valid reason connected with the applicant's capacity or based on the operational requirements of the respondent's undertaking and whether in any event the termination was harsh, unjust or unreasonable within the meaning of Section 170DE of the Act. It was said that the applicant relies upon the authority of AWU-FIME Amalgamated Union and Farrell v Conagra Wool Pty Ltd (1995) AILR 3-015, in which Judicial Registrar Parkinson considered the words "harsh, unjust or unreasonable" by reference to the judgments in Gorgevski v Bostik (Australia) Pty Ltd (1991) AILR 355 and (1992) AILR 186 and Byrne and Frew v Australian Airlines Limited (1994) AILR 165. Parkinson JR found that an objective test was to be applied to the natural meaning of those words such that the appropriate test of whether the termination was harsh, unjust or unreasonable was a question for the Court to determine objectively having regard to the evidence before it including but not limited to the material which was before the employer at the time of the termination. I should say at this stage that I did not find that there was any evidence that the termination of the applicant's employment was made on the basis of his absences from full time duties. I do not consider that subparagraph 1(a) of Section 170DF of the Act applies. It was clear that the decision to terminate Mr Coyne's employment was made because Mr Coyne was unable to perform all of the functions contained in the job description of a customer service officer Grade 1 at 20 February 1995. As a certain amount of heavy lifting was required with that position, I consider that there has been no breach of Section 170DF(1)(f) because the heavy lifting was one of the inherent requirements of the particular position within the meaning of subsection 2 of Section 170DF. Having made this finding, the only issue relating to any alleged breach of the provisions of the Act which I now have to consider is whether or not the termination of Mr Coyne's employment was in all the circumstances harsh, unjust and unreasonable. I will confine my consideration of the written submissions primarily to that issue. On behalf of the applicant it was submitted that: · Mr Coyne had an extensive history of employment with the respondent, having been employed from 16 July 1973 until 20 February 1995 with the exception of a six month break in 1981; · in the course of his employment at various times Mr Coyne had performed all of the duties involved in the position of a multi skilled customer service officer; · the allocation of such duties at any time during the course of his employment was arbitrarily determined by his supervisor, · his injury was work related; · "The operations of the respondent insofar as its customer service officers are concerned and its inherent discretion to arbitrarily direct those officers to perform any one or a combination of duties and the size of its workforce in that and other regards was such that it could not be said that the incapacity of the applicant during the period 15 August 1993 to 20 February 1995 to perform full time duties adversely affected the respondent's operational requirements and in any event no evidence was adduced on behalf of the respondent to that effect." · the respondent did not give any or any adequate consideration to the applicant's accrued annual leave entitlement as at the date of termination; · the applicant's prognosis in respect of his incapacity was good; · the applicant has in fact made a complete recovery from his incapacity and is ready, willing and able to return to full time duties as a customer service officer. · the respondent employs approximately 70 customer service officers on a full time basis and approximately 25 such officers on a part time basis within a total workforce of approximately 1500 persons; · the termination was in all the circumstances harsh, unjust or unreasonable. On behalf of the respondent it was submitted that: · it has demonstrated that all reasonable and possible steps to continue employment were exhausted and that at the time of the termination it had taken all reasonable steps to ascertain the likelihood of the applicant being able to resume the duties and functions of a multi skilled level 4 clerical position; · the respondent had advised Mr Coyne several months prior to the date of termination, in the presence of his union representative and the rehabilitation providers, that if a suitable position was unable to be identified in the near future the respondent would consider terminating the contract of employment; · Ms Forrest gave evidence that the parties had endeavoured to find suitable alternative employment for the applicant over a period of several months. All suggestions, however, were either declined by the applicant or deemed to be inappropriate for the applicant given the inherent physical requirements of the position; · having afforded the applicant every opportunity to rehabilitate, over a period of some eighteen months, and the applicant subsequently still being unable to carry out either the duties for which he was originally employed or alternative duties associated with that classification, the respondent terminated the applicant's contract; · the evidence shows that the decision was not taken within a vacuum but that due regard was had for all the factors relevant as at 20 February 1995 such as medical reports, the advice of the rehabilitation providers, the progress made under rehabilitation, the preferences and concerns of both the applicant and his union representative, the availability of suitable alternative employment opportunities and the operational requirements of the respondent; · as at 20 February 1995 there was no reliable evidence available to the respondent to indicate, with any confidence, when the applicant could perform the inherent requirements of the position he was occupying immediately prior to the accident. Nor was any such evidence available to indicate when the applicant could undertake suitable alternative duties of a meaningful nature. Professor Sikorski had discharged the applicant in September 1994 because he could not contribute any further to his care. Dr Saint, in November 1994, had indicated that the applicant was not capable of carrying out his pre-accident duties and that it was not yet possible to consider Roger Coyne's work capability in the future because his condition had not yet stabilised and that it may be another 12 to 18 months before any improvement occurred.