ROWE - v - ADI LIMITED [1997] IRCA 161

DECISION NO:161/97 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - whether failure to co-operate - whether breach of general duty of good faith towards the employer in failing to co-operate in establishing a return to work program - whether a reason for termination was temporary absence due to illness - PROCEDURAL FAIRNESS - whether the applicant was aware of the nature of the employer's concerns and had a full opportunity to defend himself prior to termination Workplace Relations Act 1996 ss 170DE(1), 170DF(1)(a), 170DC, 170EDA(2) Workplace Relations Regulations reg 30D Wadey v YWCA Canberra (unreported, Industrial Relations Court of Australia, Moore J, 12 November 1996) Nicolson v Heaven & Earth Gallery Pty Ltd 1 IRCR 199 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 DARYL ROWE - v - ADI LIMITED No. VI 2572 of 1996 Before: Judicial Registrar Millane Place: Melbourne Date: 16 May 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2572 of 1996 B E T W E E N : DARYL ROWE Applicant A N D ADI LIMITED Respondent MINUTES OF ORDERS Judicial Registrar Millane 16 May 1997 THE COURT ORDERS THAT: 1. The application is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2572 of 1996 B E T W E E N : DARYL ROWE Applicant A N D ADI LIMITED Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 16 May 1997 REASONS FOR JUDGMENT By an application filed on 9 October 1996 the applicant seeks reinstatement to his former position with the respondent as an electronic tradesman. He does so because he alleges that on 7 October 1996, whilst he was on sick leave, the respondent terminated his employment in contravention of sections 170DE(1), 170DF(1)(a) and 170DC of the Workplace Relations Act 1996 (the Act). In its letter of termination dated 4 October 1996 handed to the applicant on 7 October 1996, the respondent gave notice of termination in the following terms (Exhibit R14): "This letter is to terminate your employment on grounds of frustration of the employment contract. The grounds for this are: • We see no chance that a satisfactory employment relationship can be re-established. • There is no indication that the required working relationships with fellow employees can be established. You shall be paid four weeks pay in lieu of notice in accordance with Clause 10.2.3 of the Australian Defence Industries (Paid Rates Employees) Award of 1989. In recognition of your long service with the company and on a without prejudice basis, we will pay you all remaining personal sick leave credits. Please return all company property including your security pass to the Guardhouse as soon as possible. Your cheque can then be forwarded to your home address. Under the circumstances, you no longer will be allowed to come on site. We wish you well in the future." On termination the applicant received $15,909.34 nett for wages, annual leave payments and long service leave together with an eligible termination payment of $9,258.73, which comprised four weeks pay in lieu of notice and the balance of his sick leave entitlement. At hearing the respondent defended the proceeding on the basis that over a lengthy period of time the applicant had persistently failed to co-operate with it in the development of its return to work program. This was so despite verbal and written warnings that his failure to respond to the respondent's request for a progress report and advice on the applicant's rehabilitation from his doctor, could lead to termination of his employment. THE WITNESSES The respondent called the following witnesses: - Peter Raymond Hall (Hall), the respondent's maintenance supervisor; - Garry Jonathon Muston (Muston), the respondent's technical services manager; - Arthur Andrew Penna (Penna), an electronics tradesman employed by the respondent; - Trevor Keith Koch (Koch), a maintenance engineer employed by the respondent; - Jack Van Beveren (Van Beveren), the respondent's occupational health and safety manager; - Dr Kevin John Marks (Dr Marks), the respondent's senior occupational physician; and - Geoff Sadler (Sadler), employed with the respondent until December 1996 as manager of employee development at Bendigo. The applicant gave evidence and called the following other witnesses: - Dr Russell James Findlay (Dr Findlay), the applicant's treating general practitioner; and - Edward Treu (Treu), a machinist employed by the respondent. THE FACTS When the respondent's letter of termination is read in the context of the history of the discussions between the applicant, Dr Findlay and the respondent's representatives, it is apparent that the respondent's reference to "frustration of the employment contract" refers to the applicant's failure to co-operate with it in establishing a return to work program. This was at a time when the respondent asserted that it was reasonable for it to seek from the applicant clarification of his medical condition and an understanding of how, given his medical condition, he would fit back into his former work environment and relate to his former work colleagues. One of the striking features of the case before me was that even as at the date of termination, which occurred more than three months after the applicant went on sick leave with medical certificates variously indicating that he was suffering from "a medical condition" or "a medical illness", the employer had not received from the applicant, his treating doctor or his legal advisers, whom he consulted on or about 18 September 1996, a formal diagnosis or description of the nature of his illness. At hearing Dr Findlay gave evidence and tendered to the Court a medical report he sent to the applicant's solicitors dated 3 April 1997. Thus it was only when his evidence was given that it was disclosed that on 8 July 1996 the applicant was diagnosed by Dr Findlay as suffering from a severe anxiety disorder. It also became apparent at hearing that Dr Findlay, who has been a general practitioner for some twenty years, holds no formal qualifications in psychiatric medicine or as a psychologist. Dr Findlay gave evidence that in the last five years he has concentrated his work as a practitioner in the area of psychiatric illness, with one year spent at the Bendigo Psychiatric Centre. This was followed with work in the area of psychology, followed by eighteen months devoted exclusively to psychiatry. Dr Findlay told the Court that he has had informal training with two local Bendigo psychiatrists, meeting with each of them every two to three weeks to discuss cases. Indeed, before this regime was established, his habit was to have weekly discussions over dinner with one of the psychiatrists after a game of squash. In view of the abovementioned evidence I was not satisfied that Dr Findlay was in a position to say that his diagnosis was that of an expert in psychiatric medicine or in psychology. It is the opinion of a general practitioner without formal training whose practice has brought him into contact with mental illness and behavioural problems from time to time. It was also apparent from Dr Findlay's evidence that he had little exposure to or knowledge of the return to work programs for injured or ill employees; such programs initially being fostered by the State and Commonwealth Workcover and Comcare systems but also relied on by employers to rehabilitate employees absent through illness or injury. No Comcare claim was initiated by the applicant prior to termination. This he said was due to the respondent's failure to properly respond to his requests for the appropriate forms. However, because of the generally unsatisfactory nature of the applicant's evidence during the proceedings, I am not satisfied that there was any refusal on the part of the respondent to accommodate any request for a Comcare claim form. Such a form was provided to him on his request shortly prior to termination. In fact, the very strong impression I gained from the respondent's evidence generally and its witnesses in particular, was that the respondent acted reasonably and sensitively in its attempts to resolve conflict which arose in the workplace before the applicant went on sick leave and, once it was confronted by a long absence with no formal medical diagnosis and no meaningful information upon which to build a return to work program, it again acted reasonably in seeking permission from the applicant to approach his treating doctor to discuss his condition and a return to work program, bearing in mind the responsibility the respondent has to secure the safety of the applicant and his colleagues in the workplace as well as avoid any conduct or situation which might exacerbate the applicant's medical condition allegedly caused by conflict with his work colleagues. By 4 October 1996, despite repeated efforts on the part of the respondent, Dr Findlay still did not have permission from the applicant to speak meaningfully to the respondent concerning the applicant's medical condition and the matters the respondent needed to address to responsibly develop a return to work program from 7 October 1996. Dr Findlay's approach appears to have been that whilst an employer may see it as desirous that the employee return to work as soon as possible, and might enquire as to how to expedite that return, beyond that the employer needed to trust the judgment of the treating practitioner. This belief meant that when in late September the applicant and Dr Findlay determined that the applicant was fit to make a gradual return to work over some weeks, the approach was to indicate this and to continue to ignore any concerns the employer might have about making an informed decision on matters to do with safety and any potential for exacerbation of the applicant's condition. For example, Dr Findlay did not seem to appreciate that the employer might have a legitimate interest in knowing whether the applicant was on any form of medication which might affect his performance when working on expensive, sophisticated and potentially dangerous machinery. Dr Findlay and the applicant knew that he was not then on prescription medication, however, the respondent had no means of knowing this unless the applicant permitted his treating doctor to disclose this relevant and necessary information. Understandably, the applicant and Dr Findlay felt that much of the history given to the doctor relating to personal matters was not the business of the employer and was not relevant to a return to work program. There was, however, nothing in the behaviour of the employer at any stage to suggest that it might have some prurient interest in the applicant's personal information or that it would not act sensitively in dealing with any information given to it. Dr Marks is employed by the respondent and is an expert in occupational health and safety medicine. One would imagine that any permission granted allowing Dr Findlay to provide to Dr Marks information relevant to a return to work program, would have been dealt with with a high degree of professionalism. I accept the evidence of the respondent's witnesses that in their discussions with the applicant on a number of occasions during August and September he indicated to the respondent that he would give his doctor permission to disclose medical information for the purpose of developing a return to work program. At all times, despite the applicant's clashes with other employees and despite his demonstrably aggressive behaviour in the workplace, the respondent viewed the applicant as a skilled and valuable tradesman. The evidence of the fellow employees shows that they required considerable tolerance and forbearance in the workplace because of the applicant's verbal attacks from time to time and his unreasonable and persistent attempts to impose his view on how the work should be performed by these other employees. His behaviour prior to going on sick leave from the beginning of July was not co-operative because, for example, he acted to deny other employees access to a shared laptop computer and other information relevant to their training and the performance of their duties. From at least the end of 1995 onwards he was clearly at the centre of conflict with the employees who were required to work with him in a team. Many months after leaving a workplace he said had caused his illness, he, somewhat inconsistently, appeared to try and diminish the level of the conflict that occurred and his role in that conflict. Whereas his work colleagues described certain incidents as confrontational and sometimes consisting of verbal threats, he characteristically referred to their reaction to his behaviour as "getting cross with him" and further described their interaction with him as being amicable on occasions when it was obviously a source of heated conflict. When Dr Findlay and the applicant determined that he was ready to return to work and that was to occur on a gradual basis, Dr Findlay then had no direct knowledge of the workplace incidents described to the Court leading up to the applicant taking sick leave other than what he had been told by the applicant. The fact that he sought to limit the initial return to work to less than full time duties is consistent with a belief that the return might, as he put it, "freshen up" some of the applicant's symptoms because of his prior conflict with the other employees. Dr Findlay did not seem to appreciate that by placing a limitation on a full return to work he was indicating to the respondent, without providing his grounds for so doing, a continuing incapacity for full time work when the respondent did not then have any professional diagnosis of the applicant's condition apart from his statements to them that he was suffering from stress caused by conflict in the workplace. In other words, without any discussion with the treating doctor it had no way of finding out what the limitations on his return to work related to. The applicant was first treated by Dr Findlay on 8 July 1996 having left his job unexpectedly at the end of June. As I have already noted, in the months preceding his absence there were a number of unpleasant confrontations between he and other staff and management. At the time he went on sick leave discussions were underway between the applicant, other employees and management as to how to solve the ongoing conflict. These discussions were never really concluded even though the applicant met with management on a number of occasions when he was on sick leave to try and sort out some of the outstanding issues. By August 1996, because the applicant had been off work for some weeks, enquiries were made to ascertain the identity of the applicant's treating doctor. Dr Marks then telephoned Dr Findlay with a view to discussing what could be done to get the applicant back to work, find out why he was off work and ascertain when his treating doctor anticipated he would return. His approach to Dr Findlay on that occasion and the subsequent telephone approach of Van Beveren were rebuffed by Dr Findlay who said he needed the applicant's permission to discuss any confidential information with them. Strictly speaking, Dr Findlay's initial refusal to divulge any patient information was justified. Nevertheless, this does not mean that the employer's interest in and attempts to gain access to some medical information necessary to the development of a return to work program was unreasonable in all the circumstances of this case. Exhibit R8 is a letter dated 7 August 1996 from the respondent seeking Dr Findlay's assistance in developing a return to work program. The letter also details the issues raised by the applicant at his meetings with management during July and August 1996, as well as setting out the company's position on changing the work environment after its review of the work arrangements in the maintenance section in which the applicant had worked. Sadler told the Court that he informed the applicant of the contents of this letter during a telephone conversation on 8 August 1996. After being given the letter by Dr Findlay on or about 13 August 1996 the applicant responded to it. In the opening paragraph he states: "Dr Russel Finlay (sic) did not wish to respond to your letter. I believe he is of the opinion that we should sort the return to work request ourselves, as his service was requested for my condition and not to liaise for ADI." The applicant's written response proceeds, in a not very coherent fashion, to attempt to address some of the issues raised by the respondent's letter. What is clear from that response is that by mid August 1996 the applicant still maintained a high degree of antagonism towards his work colleagues and the respondent's management. On 14 August 1996 the applicant's answering letter was given to Sadler at a meeting attended along with Muston and Hall. The employer's witnesses gave evidence that by the conclusion of that meeting the applicant had agreed to give permission to Dr Findlay to talk to Van Beveren about a return to work program. On 28 August 1996 the following letter was forwarded to the applicant by Van Beveren (Exhibit R9): "I refer to our meeting of 14th August relating to your return to work. As I am your Case Manager it is my role to assist you with a goal of returning to work as soon as possible. To date we have not received any indication of a possible return to work, and/or permission to seek a progress report and advice on your rehabilitation from your doctor, Dr Finlay (sic), although you indicated at our meeting that this would be forthcoming. As the Personnel department require a report on your progress prior to 12th September, 1996 to allow continuation of sick leave payments please inform me of your intentions, possible date of return to work and/or permission to seek a progress report from your doctor immediately." One of the arguments raised during the hearing concerned the authorisation of the applicant to be on sick leave at the relevant time. This, of course, has some bearing on the requirements of regulation 30D of the Workplace Relations Regulations and whether the applicant's absence was, for the purposes of section 170DF(1)(a) of the Act, a temporary absence due to illness. Clause 17.1.2 of the relevant award (Exhibit R6) provides as follows: 17.1.2 The employee shall, as soon as reasonably practicable and within eight hours of the commencement of such absence inform the Company of inability to attend for duty, and as far as practicable, state the nature of the injury or illness and the estimated duration of the absence." Arguably, at least up until the letter dated 28 August 1996 the applicant was on authorised sick leave because the respondent paid him his sick leave entitlements on the strength of the rather uninformative medical certificates provided by him to them. Nevertheless, by 28 August 1996 Van Beveren made it clear to the applicant that the respondent required more information to allow the continuation of sick leave payments because, it had neither a formal diagnosis of the nature of his illness, nor any prognosis as contemplated by the award provision. According to Van Beveren the letter dated 28 August 1996 was written by him after he had contacted Dr Findlay on 20 August 1996 and was again told that the doctor did not have any permission to speak to the respondent. The applicant saw Dr Findlay on a weekly basis and, because of this, the letter dated 28 August 1996 was sent to try and get the applicant to give the requisite consent to his doctor during his next consultation. There was no response to the lastmentioned correspondence and, by a letter dated 17 September 1996 handed to the applicant by Sadler during a meeting, the applicant was advised as follows (Exhibit R13): "I refer to our letter of 28 August 1996 requesting information on your intentions regarding a return to work date. Our letter requested a response by 12 September 1996 and to date we have received no reply. This is a serious matter and lack of a satisfactory response could lead to termination of employment. Please provide your response by close of business 18 September 1996." At the abovementioned meeting the applicant was also verbally warned that his job was in jeopardy if he failed to provide information to assist in developing a return to work program. That meeting concluded on the basis that he would give Dr Findlay the required permission. On 18 September 1996 the applicant wrote to his union seeking legal assistance (Exhibit R15). I am satisfied, that his approach to the union and his solicitors at about this time was brought about by his clear understanding that his employment was in jeopardy if he continued to fail to co-operate. The applicant claims that he showed to and discussed with Dr Findlay all the correspondence received from the respondent. This evidence was given even after Dr Findlay had given evidence to the Court denying any knowledge of warnings transmitted to the employee that his employment may be terminated if he did not co-operate. Notwithstanding the applicant's further promises, by the time Van Beveren spoke to Dr Findlay on 24 September 1996, Dr Findlay still did not have the applicant's permission to disclose any or any relevant medical information to assist in a return to work program. Accordingly, on 26 September 1996 Van Beveren sent another letter to Dr Findlay in the following terms (Exhibit R10): "I write with reference to the above employee and our telephone conversation of 24 September 1996. Because of the limited amount of information you are allowed to divulge to me, I have spoken to our Corporate Physician, (Dr. Kevin Marks). He has agreed that I have insufficient information with which to proceed. From discussions with Daryl, we have interpreted the circumstances that caused him to leave his worksite initially. Our analysis of the circumstances has established that this is a normal working environment. As such, you and Daryl need to be aware that those 'circumstances' have not changed. The lack of details about his condition prevents us from assessing factors that may impede his recovery. The term 'medical condition' on the doctors certificate, with restrictions, (i.e. limited days) as part of his program, leaves numerous questions that I believe need to be addressed. The role of Case Management in the workplace involves many factors, including the rights and obligations of key players who, by the nature of their work, become involved in the process. I speak primarily of other tradespeople who will be working directly with Daryl, but who are uncertain of the nature of his illness or what they can do to assist him. Naturally, these people require enough information for their own reassurance and to help them understand Daryls' (sic) needs. The Company has an obligation to support co-workers as well as the rehabilitee. What are the problems associated with Daryl's medical condition given that Daryl will be returning to his usual duties thus: • fault finding and problem solving for the precision repair and maintenance of machines and equipment having electrical and electronic control systems (sometimes mentally and physically demanding tasks). • liaise with customers of his department working in a team environment. • electrical maintenance and • other duties under the direction of his Supervisor. In doing so, he works to the general direction of his supervisor, at times having to follow courses of action he may disagree with. He regularly works with close interaction with other employees performing similar activities. In doing so, he must exchange ideas and opinions amicably and on occasions participate in resolving differing opinions to find solutions acceptable to him and others involved. We wish to draw to your attention that Daryls' (sic) work can be both physically and mentally demanding and as such, how do you see him returning to our environment? Can we be sure that his return will not exacerbate his condition or illness? Your input as his treating doctor is sought, so that plans for a Return to Work Program can be established. I will be contacting Daryl to request his written consent for you to release information to me." On 27 September 1996 he sent a copy of his letter to Dr Findlay to the applicant with a medical authority for signing by 4.00pm on 2 October 1996 (Exhibit R11): "AUTHORITY FOR THE RELEASE OF MEDICAL INFORMATION ADI Limited needs the information you provide on this form to carry out its functions under the Safety Rehabilitation and Compensation Act, 1988, and at times, its regulatory functions under the Occupational Health and Safety (Commonwealth Employment) Act 1991. Your authority is required to allow medical information to be given to Dr. Kevin Marks, Senior Occupational Physician of ADI Limited. Additional medical information will not be requested unless it is necessary to do so. Please complete the following authorization: I, DARYL EDWARD ROWE DATE OF BIRTH 13/04/53 4 ELDA COURT KANGAROO FLAT authorize the doctors, hospitals, health professionals and rehabilitation providers who have treated me for my current medical condition / illness, which has kept me away from work; to discuss with or provide to, the ADI limited Senior Occupational Physician, Dr. Marks. I am willing that a photocopy or facsimile of this authorization be accepted with the same authority as the original. I am willing to allow the distribution of this information to the other parties involved in my Return to Work Program. Signature Date " As can be seen from the wording of the document, it was not carefully drafted. The applicant took exception to particularly the last sentence contained in the last paragraph because he felt it was drawn too widely. In a letter dated 2 October 1996, instead of simply deleting the offending sentence, he purported to, amongst other things, provide authority in the following way (Exhibit R3): "However, I Daryl Rowe, do give my permission for Dr Marks to contact Dr Findlay and discuss my problems that I had at work as well as my return to work program." His letter also indicated that he was meeting with his solicitors on 8 October 1996. Further, the letter contained a remarkable and unfounded suggestion from the applicant that the personality clashes the applicant felt were the cause of his problem had been addressed by the respondent's management. On receiving the authority the respondent at first did not question its sufficiency. However, when Dr Marks rang Dr Findlay, who even by then did not have any notification from the applicant of the permission given, Dr Findlay understood the authority as one which only authorised Dr Marks to discuss with Dr Findlay the applicant's workplace problems. On its face it did not permit Dr Findlay to disclose medical information to Dr Marks. By that date Dr Findlay and the applicant had indicated that the applicant was ready to start a return to work program from 7 October 1996 on staggered hours. Not surprisingly, the respondent took the view that it did not have sufficient information to prepare that program and establish a basis for reintroducing the applicant into the workplace environment when his former colleagues had continued to work in apparent harmony and co-operation since he went on sick leave. On Friday, 4 October 1996 the respondent determined that the applicant's employment should be terminated and on Monday, 7 October 1996 when management met with the applicant he was given the letter of termination dated 4 October 1996. FINDINGS I am satisfied on the evidence that at the date of termination there was a sound, defensible or well founded reason for terminating the applicant's employment; namely, a persistent failure to co-operate with a reasonable request for permission to obtain relevant medical information to prepare a return to work program. It was clear from the applicant's evidence, and that of his treating doctor, that he was opposed to the provision of any meaningful information because he feared disclosure of his personal history in the process. To some extent he was encouraged in this view by his treating doctor's reluctance to accept that the employer may have legitimate concerns about how to safely and reasonably prepare a return to work program. Nevertheless Dr Findlay was at all times prepared to disclose relevant information had he been given authority to do so. By the latter part of September 1996 the applicant was prepared to indicate when he was going to return to work and on what basis that return would be effected, yet he was still not prepared to divulge any meaningful information about his illness. Was the respondent's response a rational and logical response to the failure to co-operate and give permission for it to obtain the information it needed? (see Justice Moore's decision in Wadey v YWCA Canberra (unreported, Industrial Relations Court of Australia, Moore J, 12 November 1996)). On balance, I take the view that it was because of the course of conduct adopted by the applicant over a lengthy period. If anything the applicant's behaviour appeared to be manipulative both of his employer and his treating doctor. On the one hand, he gave the employer the clear understanding that permission would be forthcoming yet, on the other hand, instructed his doctor to the contrary or not at all. Moreover, he kept information from his doctor, such as the correspondence from the employer threatening to terminate his employment because of these matters and, interestingly enough, failed to tell his treating doctor that from 28 August 1996 he was undertaking a TAFE course for an electrical contractor's technical and safety certificate. This was at a time when Dr Findlay was of the view that the applicant would not have been fit to undertake such a course. With regard to any allegation that the reason or one of the reasons the respondent terminated the applicant's employment was a temporary absence due to illness, I am satisfied that the respondent has rebutted the presumption arising pursuant to section 170EDA(2) of the Act and shown to my satisfaction that any temporary absence due to illness was not a reason for termination. Accordingly, there has been no contravention of section 170DF(1)(a) of the Act and it is not necessary for me to determine whether the applicant's absence from work was authorised as contemplated by Regulation 30D of the Workplace Relations Regulations. On the evidence, the employer's motivation in terminating the applicant was directly associated with the applicant's failure to co-operate. In an employment relationship there is, broadly speaking, an obligation to co-operate and generally act in good faith towards one another. The respondent runs a large undertaking and arguably this was a termination based on the operational requirements of its business where it might reasonably expect employees who are absent on sick leave for lengthy periods and who do not apply for Comcare, thereby generating a requirement that the employee sign a medical authority, to co-operate with it in the development of a return to work program. The only outstanding issue is that of procedural fairness. Section 170DC of the Act provides as follows: "170DC An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless: (a) the employee has been given the opportunity to defend himself or herself against the allegations made; or (b) the employer could not reasonably be expected to give the employee that opportunity." In discussing the significance of section 170DC in his decisions in both Nicolson v Heaven & Earth Gallery Pty Ltd 1 IRCR 199 and Gibson v Bosmac Pty Ltd (1995) 60 IR 1, Chief Justice Wilcox makes it clear that this provision imposes an important limitation on the right to terminate and before dismissal occurs an employee must first be made aware of the particular matters that put his job at risk and, secondly, be given an opportunity to adequately defend himself against any performance or conduct related allegations. In making these observations His Honour also makes it clear that if an employee is aware of the precise nature of the employer's concern about his conduct or performance and has a full opportunity to respond to this concern, the requirements of section 170DC are satisfied. In the case before me I am satisfied that the applicant had been made aware, both verbally and in writing, of the respondent's concerns about his lack of co-operation in developing the return to work program; a program which was an integral part of its operations. Furthermore, I am satisfied that the applicant had a full opportunity to respond to this concern on a number of occasions but persisted in avoiding meaningful co-operation. These findings lead to the conclusion that there has been no breach of section 170DC of the Act. Accordingly, the order I propose to make is that the application be dismissed. MINUTES OF ORDERS THE COURT ORDERS THAT: 1. 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 sixteen (16) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 16 May 1997 Solicitors for the Applicant: Slater & Gordon Counsel for the Applicant: Ms M. Richards Solicitors for the Respondent: Minter Ellison Counsel for the Respondent: Mr M. McDonald Date of hearing: 14, 15, 16 & 17 April 1997 Date of judgment: 16 May 1997