DECISION NO: 285/96 C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - whether termination unlawful INDUSTRIAL RELATIONS ACT 1988, ss. 170DB, 170DE, 170DC, 170EE rozaklis - v- transadelaide No. SA95/1719 JUDICIAL REGISTRAR: L FARRELL PLACE: ADELAIDE DATE: 20 JUNE 1996 IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SA95/1719 B E T W E E N: PETER ROZAKLIS Applicant AND TRANSADELAIDE Respondent MINUTES OF ORDER BEFORE: JUDICIAL REGISTRAR L FARRELL PLACE: ADELAIDE DATE: 20 JUNE 1996 THE COURT ORDERS THAT: 1. The Respondent pay the Applicant a sum equivalent to 4 weeks pay. 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 ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SA95/1719 B E T W E E N: PETER ROZAKLIS Applicant AND TRANSADELAIDE Respondent BEFORE: JUDICIAL REGISTRAR L FARRELL PLACE: ADELAIDE DATE: 20 JUNE 1996 REASONS FOR JUDGMENT This is an application pursuant to S170EA of the Industrial Relations Act. The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement. I have summarised the background to this claim on the documentary evidence before me. No oral evidence was given on these matters - in fact the Applicant gave no evidence at all. The Applicant was employed as a maintenance cleaner by the Respondent. He suffered an injury at work on 6 December 1991 when he fell from the first step of a bus. He developed pain in his right leg about six weeks later. He was diagnosed as having a disc prolapse. On 5 June 1992 he underwent surgery. His main symptom throughout was pain that became chronic after time but was variable. He subsequently performed light duties in the bulk ticket area working no more than four hours per day. On 29 March 1995 a formal offer of work full time performing alternative duties was apparently made. Some attempt was made by the Applicant to perform those duties. On 2 May 1995 the Risk and Injury Manager wrote to the applicant advising him that he had determined that weekly payments would be reduced. The reasons given for the reduction were: 1) "The application of Section 35 that serves to reduce a worker's payments by 20% of his notional weekly earnings where the period of incapacity exceeds one year. 2) A medical expert has stated that there has been a reduction in the worker's incapacity for work by the compensable disability." The letter referred to facts relied upon as follows: · "Your notional weekly earnings are $468.06. · As the period of your incapacity has exceeded one year you are entitled to 80% of the difference between your notional weekly earnings and the weekly earnings you are earning. · That Mr R Bauze in his reports of 7 November 1994 and 28 November 1994 considers that you are capable of working full time hours performing duties in the Bulk Sales Office. · That Mr G McCulloch in his report of 8 March 1995 considers that you are fit to work 40 hours per week performing duties in the Bulk Sales Office. · By letter dated 29 March 1995, TransAdelaide made you a formal offer of fulltime work performing the duties in the Bulk Sales Office. · The offer of alternative duties which was made on 29 March 1995 required you to commence duties in the Bulk Sales Office on Monday, 3 April 1995, to work 7 hours and 36 minutes per day, 5 days per week. · The rate of pay for the work offered is $412.95 per week. · On and from 3 April 1995, you have not performed the full time work in the Bulk Sales Office as offered." The conclusions I have drawn from those facts are: · There has been a reduction in the extent that you are incapacitated for work by the compensable disability and you are now fit to perform the alternative duties offered to you on a full time basis being 7 hours and 36 minutes per day, 5 days per week, which would be at a weekly rate of $412.95. · That you are now entitled to 80% of the difference between your notional weekly earnings of $468.06 and the weekly earnings that you could earn being $412.95, therefore your weekly payments are to be reduced to $44.09." The Applicant apparently exercised his right to review the determination of Mr Wingrave. On 30 October 1995 the Application for Review came before Review Officer Meredith of the Workers Compensation Review Panel. During the hearing the Applicant was cross examined about things he had done in the recent past. The aim of the cross examination was to show that the Applicant could have performed the duties that had been offered to him. Film of the Applicant's activities in August/September 1995 was shown during that hearing. I will return to the evidence at that hearing later. On 9 November 1995 the Applicant was given notice of a disciplinary hearing in the following terms: ""Material has come to the attention of TransAdelaide which indicates that you are not undertaking to work the daily hours for which you have been medically assessed as being able to perform. The material before TransAdelaide indicates that you are able to perform certain activities outside the workplace that are inconsistent to your statements of restriction and the ability to do these activities strongly suggests that you are able to perform more hours of work per day for TransAdelaide. This material comprises medical reports from Orthopaedic Surgeons, Neurosurgeon, and your treating doctor. These are in addition to video film footage of you performing movements outside your previously stated restrictions and transcript text of your review hearing before the Workers' Compensation Review Panel. TransAdelaide has given preliminary consideration to this material and has formed the conclusion that a formal confidential disciplinary hearing is necessary"." The disciplinary hearing was conducted on 21 November 1995. Mr Moir, employee relations officer of the Respondent conducted the hearing. The Applicant was represented by his solicitor, Mr Favilla. Notes of the disciplinary hearing were tendered in evidence before me. They state as follows: ""The allegations made against you are about your apparent ability to undertake activities outside of your TransAdelaide workplace which appear to be equal to or more physical than the requirements to perform the work at the Bulk Ticket Office. The fact is that you work 4 hours per day, 5 days per week in the Bulk Ticket Office and you are aware that TransAdelaide wants you to increase these hours to 7.6 hours per day, 5 days per week. Given that you have made no apparent effort to increase your daily hours since April, but undertake activities of a greater physical nature outside the work area, amounts to conduct prejudicial to TransAdelaide's operation. This is a serious misdemeanour pursuant to TransAdelaide's Guide to Personnel Policies and Procedures Disciplinary Procedures - A serious misdemeanour may result in dismissal from employment." Steve then indicated that the evidence in regards to this matter amounted to doctors reports, reports from Quark Private Investigators, transcript of review hearings and video evidence. Steve continued to explain that he had visited the work area and examined the work and the conditions under which it was performed and had also spoken to the Supervisor of the area. Steve suggested that the proceedings start by reviewing the video. Mr Rozlakis (Sic) said that if we wanted to watch it, that was okay but that he had seen it before. Mr Rozlakis' Solicitor expressed concern about a denial of natural justice, believing that the matter should be held over until the WorkCover matter is further heard during December. He proposed that if Mr Rozlakis was prepared to agree to a discontinuance of weekly payments, will we delay the course of today's hearings. Steve indicated "No", indicating that this matter was an industrial matter and did not form part of a WorkCover matter. At this juncture Steve put to Mr Rozlakis that if he needed to consult with his Solicitor at any time, that that would be okay. It was then decided to proceed with matters and again, it was offered to look at the video, however, it was decided that the video would not be reviewed. A series of questions was put to Mr Rozlakis as follows: S "The period we are speaking about is 16 August to 19 September. You undertook to work 4 hours per day". R "Yes". S "7.30 to 11.30am". R "Yes". S "During the review hearing you stated that you needed to rest, using your machine and massage". R "Yes". S "Was it done every day?" R "Yes". S "For how long?" R "For approximately 1/2 an hour". S "During your work, did you experience pain?" This matter needed to be clarified to which Mr Rozlakis referred to stiffness in the lower back and pain in his right leg. S "Was it your practice to go home after your shift for treatment?" R "Sometimes I even had to stop on the way home to rest, but I always went home for treatment. If treated I could do things afterwards. At this stage at 10.30am there was a break in proceedings and we reconvened at 10.40am. Mr Rozlakis' Solicitor indicated that Mr Rozlakis was refusing to answer any further questions on the basis that he may incriminate himself. Mr Moir put that allegations had been put to Peter Rozlakis and that this was his opportunity to respond, however no response was forthcoming. At this time Mr Moir concluded the hearing, indicating that he would make his decision within 24 hours and would inform the parties accordingly." The applicant was subsequently notified by letter dated 22 November 1995 that his employment was being terminated. The letter referred to the allegations and the material (all of which was before me except for the Risk and Injury File). The letter set out the following reasons for the termination of the Applicant's employment. "The reason for your dismissal is that I view your actions to be of a serious nature given that you have made no apparent effort to increase your daily hours to the level of your contract of employment since April 1995, yet you undertake activities of a physical nature referred to above. This amounts to serious and wilful misconduct that is prejudicial to TransAdelaide operations and is a serious misdemeanour, pursuant to the Disciplinary Procedures of TransAdelaide's Guide to Personnel Policies and Procedures. You may appeal this decision in writing to the General Manager stating the grounds on which your appeal is made within 5 days from my decision, 22 November 1995. You will receive a weeks wages in lieu of notice. I am also obliged to inform you that you may have certain appeal rights pursuant to the state or federal industrial legislation. Please find attached a list of property that you have been issued. This property and any other TransAdelaide property will need to be returned before any final payment of wages or leave can be made." There can be little doubt following viewing of the video evidence, and medical reports that the Applicant's injury did not, at least by August 1995, incapacitate him from performing the duties which were offered to him in late March, and that he undertook activities outside work at least physically equal to if not greater than the work which was offered to him by the Respondent. . The Applicant argued that Respondent acquiesced in the matter, that between 2 May 1995 and 9 November 1995 the Respondent took no action. I do not accept that argument. The Applicant is required to offer himself to perform suitable duties for which he is fit. He did not do so. The Applicant held himself out as continuing to be unfit for work as a result of compensable injury. He has misrepresented his ability to perform duties. In the absence of any explanation by Applicant, for example, that he suffered from a psychiatric condition, that there was some other source of pain, or some misunderstanding at the Workcover hearing or at the Disciplinary Hearing, termination of his employment was warranted. I therefore find that the Respondent had a valid reason for the termination of the Applicant's employment. I am satisfied that the termination of the Applicant's employment was not harsh, unjust or unreasonable. Whilst I accept that the Applicant's conduct was a breach of the trust put in him by the Respondent, I am not satisfied that he is excluded from the notice provisions of S170DB. I therefore order that the Respondent pay the Applicant a sum equivalent to 4 weeks pay. I certify that this and the preceding 4 pages are a true copy of the reasons for my judgment. DATE OF HEARING : 9 May 1996 FOR THE APPLICANT : Mr A Martin FOR THE RESPONDENT : Mr J Hankin