SIDHWA -v- BRITISH CONSULATE GENERAL, SYDNEY [1997] IRCA 129

DECISION NO:129/97 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION ADMITTED - RECEIPT OF WORKERS' COMPENSATION - ASSESSMENT OF COMPENSATION WORKPLACE RELATIONS ACT 1996, s170EA. Brown v Power AI 1023R of 1995, Moore J, 19 April 1996 unreported ARNAZ SIDHWA -v- BRITISH CONSULATE GENERAL, SYDNEY NI 96/2280 BEFORE: BOULTON JR PLACE: BRISBANE (HEARD IN SYDNEY) DATE: 9 APRIL 1997 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. NI 96/2280 QUEENSLAND DISTRICT REGISTRY BETWEEN: ARNAZ SIDHWA Applicant AND: BRITISH CONSULATE GENERAL, SYDNEY Respondent BEFORE: BOULTON JR PLACE: BRISBANE (HEARD IN SYDNEY) DATE: 9 APRIL 1997 MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The application be allowed. 2. The respondent pay to the applicant the sum of $9500 within 14 days of this order. 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. NI 96/2280 QUEENSLAND DISTRICT REGISTRY BETWEEN: ARNAZ SIDHWA Applicant AND: BRITISH CONSULATE GENERAL, SYDNEY Respondent BEFORE: BOULTON JR PLACE: BRISBANE (HEARD IN SYDNEY) DATE: 17 APRIL 1997 REASONS FOR JUDGMENT I made orders in this matter on 9 April 1997, after delivering an ex tempore judgment. What follows are my published reasons. BACKGROUND At trial I gave leave to the applicant to amend the title of the respondent to read Government of Great Britain and Northern Ireland. The respondent waived any immunity to suit it might have in respect of these proceedings. From 1 July 1996 the applicant was employed by the respondent as an assistant management officer at Sydney. Her employment was subject to a three month period of probation. After the expiry of that period, the respondent purported to extend it, without the applicant's consent. In the meantime the applicant had had extended periods off work, having suffered a fall and an injury to her back on 8 August 1996. The respondent terminated the applicant's employment with it, with effect from 28 October 1996. ISSUE The respondent conceded at trial that the termination was unlawful. The trial was effectively limited to issues associated with assessment of appropriate compensation, the applicant not seeking reinstatement. The respondent did not contend that the applicant was other than a satisfactory employee. Its problem in fully assessing her suitability for the position related to the fact that she had had only a very short period of service, less than six weeks, when she was injured. Thereafter, and until termination, she had worked sporadically only, and apparently in pain. It emerged in evidence that the applicant was in receipt of workers' compensation, apparently under the Workers Compensation Act 1987 (NSW), from the termination of her employment to 15 December 1996, in consequence of her fall and injury of 8 August 1996. I raised with counsel the decision of Moore J in Brown v Power AI 1023R of 1995 19 April 1996 unreported. Neither submitted that I ought not adopt Moore J's approach and take into account those workers' compensation payments in assessing compensation. I propose to do so. The applicant's remuneration was a sum of $30,024 gross per annum, at termination. The parties agreed that workers' compensation payments were made to her at the rate of 80 per cent of her ordinary salary. I calculate workers' compensation paid to the applicant between termination and 15 December to be the sum of $3167.34. The respondent submitted that a factor leading to discounting of the compensation to be awarded to the applicant included her short length of service with the respondent, which meant that her suitability for permanent appointment to the position was still undetermined. There was evidence also that the applicant had expressed some dissatisfaction with the accounting aspects of her job, and raised the prospect of resigning, only two days before her fall and injury. I accept that she was then investigating the possibility of taking up a franchise business and that this interest pre-dated her commencing with the respondent on 1 July. In any event it came to nothing. The applicant had very impressive references from her previous long employment with Ansett. As I have said, the respondent did not assert that she was other than a satisfactory employee in her short time with it. What the applicant has lost in my view is the chance of having achieved a permanent appointment to the respondent's staff. Had her employment not been unlawfully terminated on 28 October, she would have continued in receipt of workers' compensation (as she in fact did, until 15 December) and thereafter I expect the respondent, as a considerate employer, would have accommodated her disability in some appropriate way, perhaps by a combination of any (unused) sick leave, annual leave, and compassionate and/or unpaid leave (given the special circumstances of the applicant's case) pending clearance to return to work (which occurred on 7 March 1997) and the attendant opportunity to then finally assess her suitability for permanent employment. I assess the prospect of the applicant's having ultimately achieved a permanent appointment to the respondent's staff, and having remained in that employment, as being high, despite her expressed interest in a franchise business. I note that the applicant has had no employment since termination. I accept that she has looked for work, unsuccessfully, since 10 March. Consistent with this approach, and having made allowance for the applicant's receipt of workers' compensation since termination, I consider appropriate compensation to be the sum of $9500. From these reasons it should be clear to the body administering New South Wales workers' compensation that its payments to the applicant (between 29 October 1996 and 15 December 1996) have been taken into account in my assessment. In other words, there ought to be no question of a claim over by that body for its payments in that period against the compensation I have awarded. ORDERS I order that: 1. The application be allowed. 2. The respondent pay to the applicant the sum of $9500 within 14 days of this order. I certify that this and the preceding TWO (2) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 17 April 1997 Counsel for the Applicant: Mr Hatzistergos Solicitors for the Applicant: Steve Masselos & Co Counsel for the Respondent: Mr Perram Solicitors for the Respondent: Corrs Chambers Westgarth Date of hearing: 27 March 1997 Date of judgment: 9 April 1997 Reasons for judgment: 17 April 1997