Industrial Relations Commission of New South Wales CITATION: Liquor, Hospitality & Miscellaneous Union, New South Wales Branch (on behalf of Robyn Twohill) v Gribbles Pathology (Vic) Pty Ltd trading as Gribbles Pathology [2006] NSWIRComm 1051 APPLICANT Liquor, Hospitality & Miscellaneous Union, New South Wales Branch (on behalf of Robyn Anne Twohill) PARTIES: RESPONDENT Gribbles Pathology (Vic) Pty Ltd FILE NUMBER(S): 6817 of 2005 CORAM: McLeay C CATCHWORDS: Unfair dismissal - centre closing - alternative position offered - alternative position not acceptable - whether applicant abandoned employment - found, termination at initiative of employer - dismissal harsh and unjust - reinstatement not practicable - compensation ordered LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Ramnini and Specix Pty Ltd [2005] NSWIRComm 1211 Bargmann and LW & J Moore Pty Ltd t/as Lenard's Poultry, (IRC 6171 of 2003, 9 July 2004) HEARING DATES: 27/03/06 DATE OF JUDGMENT: 04/13/2006 APPLICANT Mr M Vance Liquor, Hospitality and Miscellaneous Union, New South Wales Branch LEGAL REPRESENTATIVES: RESPONDENT Mr McKeown, solicitor Jenny Fraumano and Associates DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MCLEAY C 13 April 2006 Matter No IRC 6817 of 2005 Liquor, Hospitality and Miscellaneous Union, New South Wales Branch (on behalf of Robyn Twohill) and Gribbles Pathology (Vic) Pty Ltd trading as Gribbles Pathology Application by Liquor, Hospitality and Miscellaneous Union, New South Wales Branch on behalf of its member Robyn Twohill re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1051 1 This is an application by the Liquor, Hospitality and Miscellaneous Union, New South Wales Branch ("the union") on behalf of Robyn Twohill pursuant to section 84 of the Industrial Relations Act. The application shows that Ms Twohill was dismissed from the position of pathology collector on 6 December 2005. The applicant had been employed by the respondent since 2003 and by various predecessors of the respondent since 5 July 1995. 2 The applicant had been employed at the Auburn office of the respondent. She said that during 2005 there was some discussion in the work place that the Auburn site may close. It was common ground that on 16 November 2005 Ms Twohill was telephoned by Simon Boag, the NSW General Manager of the respondent, to be told that the Auburn room would be closing on 25 November. The following day Mr Boag visited Ms Twohill at work where there was discussion about alternative sites for her employment. The parties have different views as to the detail of that discussion. 3 Ms Twohill subsequently received a facsimile from Mr Boag advising that she was required to transfer to the Fairfield Heights collection centre commencing 1 December 2005. The fax also required her to attend training at a private hospital at Liverpool on 28, 29 and 30 November 2005. She contacted the union who sent a fax to Mr Boag on 23 November indicating the inconveniences to the applicant of travelling by public transport to the Fairfield Heights work place. The fax also stated that Ms Twohill suffers from arthritis affecting her back which is exacerbated by bus and train travel and that she was concerned about the increased time she would be required to spend travelling. The fax further confirmed that Ms Twohill had no intention of resigning her employment and that she wished to continue and remained available to work at any site which she could reasonably attend. The fax suggested that in the absence of any reasonable work site allocation that Ms Twohill's position has become redundant and that payment should be made in accordance with clause 5(a) of the Private Pathology Laboratories (State) Award ("the award"). 4 Mr Boag responded by fax to the union stating that the Fairfield Heights collection centre was considered to be a reasonable work site and that a redundancy was not appropriate. It said that Ms Twohill had been asked for a choice as to which site she would prefer and had declined work at any site. It continued: "Robyn has requested a redundancy and seems committed to this cause despite reasonable alternatives". 5 On 25 November the union again faxed Mr Boag confirming that Ms Twohill does not consider the offer of employment at Fairfield Heights to be reasonable and was unable to attend that site or Liverpool Hospital for training. 6 On 1 December the union faxed to Mr Boag a medical certificate which stated as follows: This is to certify that Robyn Twohill has….has [ sic ] arthritis in rt knee and rt hip and in lower back. She is unable to travel long distances by public transport, and is advised to travel to convenient places. At present if work is relocated she has to take two trains and a bus, which she is physically unable to do so. 7 On the same day Mr Boag wrote to Ms Twohill as follows: Further to recent correspondence regarding your employment, it is noted you have failed to report to work on Monday 28 November to Wednesday 30 November at Liverpool where training had been planned. In addition, you failed to report to work today at Fairfield Heights. It is clear you have abandoned work and this letter is to inform you that your employment has been terminated as of today. Mr Boag said in evidence that he did not recall whether he had received the medical certificate prior to writing the letter of dismissal but in any case he was aware of Ms Twohill's medical condition because of his previous discussions with Mr Vance of the union. 8 The above correspondence between the parties reasonably summarises the chain of events and was not disputed in evidence in the proceedings. What was disputed was whether or not the Fairfield Heights location was a reasonable alternative offer of employment for the applicant. 9 Mr Vance submitted that there were three questions to be answered: (1) whether the applicant abandoned her employment: (2) whether a condition of her employment had been that she was only required to work at Auburn: and (3) whether Fairfield Heights was a reasonable alternative location. He submitted that there was no abandonment of employment by Ms Twohill and that was because she had provided due notice through the union's fax of 25 November that she was unable to attend either the Fairfield Heights work site or Liverpool Hospital for the training session because the respondent had been given due notice of her unavailability it could not be said that she had abandoned her employment. 10 Ms Twohill had claimed in evidence that a condition of her original employment in 1995 was that she was only required to work at Auburn with Dr Saleh. She said that this was a verbal agreement with Dr Sanki who had been the owner of Medisan Pty Ltd, the employer at the time. Dr Sanki had interviewed Ms Twohill in June 1995. Ms Twohill insisted that she remembered this conversation even though it had taken place some 10 years earlier because it was of great significance to her at the time. The Auburn location was convenient because throughout the whole of the 10 year period she had travelled with a friend who picked up Ms Twohill from her home and drove her to and from work each day. This was particularly important to Ms Twohill who did not and does not have a driver's licence and who suffers from arthritis making it difficult for her to get up and down steps at railway stations and to spend long periods of time travelling on public transport. 11 Medisan Pty Ltd changed its name to Total Healthcare Enterprises Pty Ltd trading as THE Pathology in 2000. In September 2003 Gribbles Pathology (Vic) Pty Ltd purchased THE Pathology. In September 2003 Ms Twohill received an unsigned letter on Gribbles' letterhead dated 1 September 2003. That letter stated in part: For the purposes of accrual, your employment will be considered continuous with that of the THE Pathology Company Pty Ltd and your terms and conditions of employment will remain the same. Ms Twohill understood this to mean that all the terms and conditions of her employment were unchanged, including the continuation of the agreement to work at Auburn. She did not take any action to confirm this as she understood it was clearly expressed in the letter and that there was no need to seek confirmation on this or any other aspect of her employment conditions. 12 Mr McKeown for the respondent submitted that the respondent had no knowledge of the previous conditions since it had not been passed to them and that it was not in writing and that it could not be argued to be an implied term of the employment contract. He submitted that the industry was one in which there was substantial movement and that it was often the case that employees were appropriately required to change locations. In her evidence Ms Twohill said that she was not aware of this aspect of the industry. Rather her experience was the opposite, that is, that there was very little movement amongst the pathology staff. 13 Mr McKeown further argued that the paragraph in the letter of appointment began with the words "for the purposes of accrual…" indicating that the terms and conditions of employment remained the same only for those purposes and that this could not be read as guaranteeing all terms of employment even if the location at Auburn had been guaranteed by a previous employer. 14 As to the question of whether Fairfield Heights satisfies the requirement of being a reasonably "acceptable alternative employment" it matters little whether the content of the discussion on 17 November between Mr Boag and Ms Twohill went the way that he described or the way she described. There are various inconsistencies between them as to their recollections of the discussion. Nonetheless it is clear that at the time the respondent was operating at Maroubra, East Gardens, Ashfield and Fairfield Heights and that Ms Twohill was offered the Fairfield Heights location. It emerged in evidence that in December 2005 the respondent took over another company which had various other sites including Auburn, North Parramatta and Westmead. Ms Twohill suggested that she could have worked at Westmead or Auburn and that if the possibility of the future availability of these two sites had been suggested to her she would readily have accepted them as she did not want to give up work at the time. 15 Mr Boag said that he had not been party to the negotiations in regard to possible future purchase of another company and was not privy to the content thereof. Because of commercial confidentiality these issues could not have been discussed with the applicant. 16 Accepting Mr Boag's position in regard to the commercial negotiations, it remains that Ms Twohill was instructed to attend Fairfield Heights. That is the only centre stated in the correspondence between the respondent and the union. It is very clear from the medical certificate that Ms Twohill was physically unable to work at Fairfield Heights. Therefore I have no option but to find that Fairfield Heights was not a reasonable alternative offer and it therefore does not fit the requirement of acceptable alternative employment as set out in the award. 17 Mr McKeown submitted that Ms Twohill was not willing to accept any alternative work sites offered by the respondent, as stated in the respondent's fax to the Union on 23 November. As further evidence in support of the respondent's position, Ms Twohill was out of work for a very short time - less than a week - and now continues to work in Auburn. 18 I do not accept that Ms Twohill was unwilling to accept any reasonable alternative. The Fairfield Heights location was unacceptable because of her medical condition, of which her employer was aware. (The medical certificate was not provided until 1 December but there is no evidence that it was requested at an earlier time.) Whether it was unreasonable because of the additional time and cost of travel are questions I do not need to consider, in light of the unequivocal medical evidence provided. That Ms Twohill now continues to work in Auburn is serendipitous, in my view, following an offer of employment made to her after she had provided reasons to the respondent for rejecting the offer of work at Fairfield Heights and subsequent to the closure of the respondent's Auburn site. 19 I do not accept that Ms Twohill abandoned her employment. In this regard the present case is differentiated from Ramnini and Specix Pty Ltd [2005] NSWIRComm 1211, in that it was found in that case that Ms Ramnini intended to leave her employment and effectively resign. Ms Twohill had not indicated an intention to resign and I do not accept that her intention was to leave her employment. Her absence during the last few days prior to the termination of her employment was explained in writing in correspondence from the union to the respondent. It was open to the parties to have further discussions until such time as the respondent terminated the applicant's employment. While I accept Mr McKeown's submissions in respect to the respondent's wish to retain the services of Ms Twohill, the termination of her employment cut out the possibility of any further negotiations. 20 It is not necessary, in light of these findings, to determine whether or not employment at Auburn was an ongoing condition of the employment contract between Ms Twohill and the respondent. I agree with Mr Vance's submission that an affirmative response to either of his questions (2) and (3) is sufficient to determine the claim in favour of his member. 21 In all of the circumstances I find that the closure of the Auburn office where Ms Twohill had been working meant that her position was no longer available to her or to anyone else. The alternative offer at Fairfield Heights was not acceptable for sound reasons. Therefore the termination of Ms Twohill's employment was not an abandonment of employment by her but a termination at the initiative of the respondent. 22 I have considered all the cases cited by Mr Vance for the applicant and Mr McKeown for the respondent noting their useful submissions in this matter. I have looked carefully at all the relevant facts and the submissions of the parties. 23 The termination of Ms Twohill's employment should have been treated as a redundancy as the employer had done with various other employees, in circumstances of which we are not aware, during 2005. As in Bargmann and LW & J Moore Pty Ltd t/as Lenard's Poultry, (IRC 6171 of 2003, 9 July 2004) I find in this case that the dismissal was unfair because the redundancy payment due to the applicant under the relevant award was not made. The failure to treat the employment as a redundancy and to make a redundancy payment as due under the award makes this dismissal harsh and unjust. 24 The applicant is entitled to a payment on redundancy in accordance with the award. However such an amount is beyond the statutory limit of $10,000 and is not available for me to order. Although section 380 allows orders for small claims to be made when such a claim is made by a union in conjunction with other matters, a claim was not made by the union in this instance because of its amount. That entitlement may be subject to payment in the normal course or to a claim by the union elsewhere. 25 The claim for unfair dismissal has been made out on the evidence. In determining orders to be made I find that reinstatement or re-employment are impracticable because Ms Twohill is now employed elsewhere. Her current employment commenced within a week of her leaving the respondent. She is now employed for significantly fewer hours a week, although at a higher hourly rate of pay. She has lost access to the accrued sick leave she had accumulated, and will have to work a further five or ten years to access any long service leave which, given her age, is a significant loss. I also note that Ms Twohill was dismissed without notice after ten years employment for a reason which could not be substantiated on the evidence. I take all these factors into consideration in determining the appropriate amount of compensation to be ordered. 26 In satisfaction of the claim for unfair dismissal I make the following orders: ORDERS 1. The respondent Gribbles Pathology (Vic) Pty Ltd is to pay to Ms Robyn Anne Twohill the sum of $5600.56 being 8 weeks' wages at the rate of $700.07 per week. 2. The amount set out in Order 1 is to be paid within 21 days of today, being 13 April 2006. 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