Industrial Relations Commission of New South Wales CITATION: Joe v George Weston Foods [2005] NSWIRComm 1227 APPLICANT: Ms. Tania Joe PARTIES: RESPONDENT: George Weston Foods Ltd FILE NUMBER(S): 3791 of 2005 CORAM: Ritchie C Application for unfair dismissal - long term employee who for past seven years been working on selected duties - factory closing and new factory at another location commencing - applicant applied for transfer to new factory - application accepted on basis of passing a functional capacity evaluation. Applicant did not pass - applicant terminated for inability to carry out full time work, her attendance and lack of alternative selected duties position - applicant terminated by mail - applicant not given opportunity to discuss her position with the respondent - respondent failed to provide any evidence to the Commission to justify claims of poor attendance or her medical position at the point of termination - failure to provide procedural fairness. CATCHWORDS: Unable to reinstate as her job no longer exists. Order of compensation made. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 11/08/2005 DATE OF JUDGMENT: 12/22/2005 Mr.R. De Meyrick of Counsel LEGAL REPRESENTATIVES: Mr. T. Samios of the Company DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 22 December 2005 Matter No IRC 3791of 2005 IN THE MATTER OF: Tania Joe and Tip Top Bakeries a branch of George Weston Foods Limited. Application by Tania Joe re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1227 1 Ms. Tania Joe (the applicant) commenced employment with George Weston Foods Ltd (the respondent) on 3 May 1995 and was terminated on 1 July 2005. On commencement of employment the applicant worked for Tip Top Bakeries at Fairfield as a packer/process worker. In her second year of employment the applicant suffered RSI injuries to both wrists. The applicant in the following years took time off work to have a child, trained to be a supervisor and in early 1998 became a secretary to a manager. Doing clerical work her wrists settled down. 2 Due to an incident the applicant was transferred to afternoon shift in the bread department. In April 2002 the applicant was transferred back onto loading and packing duties. After approximately one year her wrists commenced to play up again. After the Fairfield factory burnt down, the applicant was transferred to Ermington and then to Chipping Norton. As a consequence of lifting heavier loads the applicant's wrists began to hurt. 3 It was the applicant's submission that in October 2002 she found that she was pregnant and Management reacted by giving her light duties, loading the bread rolls. She stated that a Mr. Crawhall and another supervisor insisted that she pull and push the dollies and as a consequence of this she lost the baby. 4 In November 2002 she was diagnosed with chronic medial epicondylitis to the left elbow and chronic lateral epicondylitis to the right elbow. She was then assigned to work on the counter assisting the drivers in administration on night shift. She was then transferred to Emu Plains counting baskets on a short- term basis. She was then returned to Chipping Norton and continued assisting the drivers. She carried out this task until she found that she was pregnant and she was transferred to day work entering basket counts into the computer, administrative work and other light duties. She later did data entry work to fill the day. 5 She had her third child on 4 November 2003. She returned to work after having three months off and continued carrying out data entry and other administrative work. When that work ran out she was transferred back to the warehouse on night shift and carried out further administrative work. 6 During October to December 2004 she had corporal shock wave therapy on both elbows. Whilst the right arm settled down the left did not and she is currently on a waiting list for an operation at Nepean Hospital. 7 After the shock therapy had been completed, it took a further three months to return to work. She returned to work firstly in the data entry, but when that work ceased and the employees were made redundant she was moved to the afternoon shift carrying out administrative work. She applied for a position as a team leader for the new Chullora operation but was not appointed. 8 In about late May 2005 all loaders were provided with an application form to complete. The applicant applied for a team leaders position at the new Chullora factory or as an alternative machine operator or whatever was on offer. Annexure A (dated 8 March 2005, received on or about 6 April 2005) to the applicant's statement, offered the applicant a position of ----Pack 03 MANUAL PACKING ROLLS. The applicant accepted this offer. Included in the offer was also a choice of being considered for a redundancy when offered or being considered for other jobs that may become available. 9 At a meeting with supervisors on 19 May 2005 the employees were advised that the option of redundancy was open to employees "until you walked through the front gates of the Chullora factory." At the same meeting the applicant approached supervisors (Mr. Falzon and Carpenter) and was told that she would be able to do the job notwithstanding her restrictions. 10 On 14 June 2005 the applicant rang Mr. Falzon and asked whether the redundancy was still on offer. She was told it was. She asked that question because she had to go to for a job assessment with Inergise. He also told the applicant that it may be better if she took the redundancy as she may loose everything and be terminated. The next day she rang Mr. Crawhall and sought a redundancy form. He did not have one but said he would get one. 11 On 17 June 2005, the applicant attended a job assessment with a rehabilitation provider Inergise now called Konnett. The assessment was for the job of packaging of bread rolls at Chullora. 12 On 20 June 2005 the applicant spoke again with Mr. Crawhall concerning the availability of a redundancy form. He said he had spoken with the Supply Chain Manager Mr. Ross Russo and that Mr. Russo would look into it and get back to the applicant. 13 On 28 June 2005 the applicant rang Mr. Russo who advised that he had spoken to Mr. Crawhall and that he would get back to her. 14 On 1 July she received a letter (Ex. B) at home stating that she had been terminated. The correspondence stated that a recent review of her current work related injury and return to work program had been undertaken in consultation with Allianz. That review along with supporting medical evidence confirmed that there were no possibility of her returning to her pre-injury job at any point in the future. It also stated that alternative employment within George Weston Foods (Tip Top Bakeries) had been hoped for but was not successful. 15 She subsequently rang Mr. Russo who advised her that she was not entitled to a redundancy payment as she was on suitable duties and it was not offered to her department. The applicant stated that it had been offered to all warehouse staff. 16 On 30 August 2005 the applicant spoke with a union representative who gave her a list of loaders who had been offered a redundancy. 17 By this application she sought reinstatement to her former position and or compensation. As her husband now worked day shift she could only work night shift. 18 A functional capacity evaluation (FCE) of the applicant was carried out by Inergise on 17 June 2005. The report (Ex.C) stated that: " Ms. Joe would not appear fit to perform the packing rolls that Ms. Joe has been offered by Tip Top Bakeries." The applicant's treating doctor Dr. Webb confirmed that the applicant was not fit for the role of manual packing rolls. 19 Mr. Geoff Crawhall and Mr. Ross Russo, both employees of the respondent, gave evidence for the respondent. 20 Mr Crawhall stated that he denied requiring the applicant to push and or pull dollies whilst pregnant. He was aware that the applicant was on light duties. It was no big deal for other employees to push and or pull the dollies. He was not aware of how the operation would work at the new Chullora site. 21 Mr. Russo whilst having been working for the respondent since only March 2005 had been working in the bread manufacturing industry for thirty years. He stated that he received a telephone call from the applicant after she had received her termination letter. The applicant sought clarification of the termination letter and whether redundancy monies would be paid. He advised the applicant that she was not entitled to redundancy monies. The applicant stated that she had been told that we could all receive redundancy monies. He replied that the people that are left at Chipping Norton that do not wish to go to Chullora may request redundancy, but they must be working full time or part time. In examination in chief he stated that employees on workers compensation were not eligible for redundancy payments. Other than Bill Vanderpap, the other named persons listed in the applicant's statement, who were alleged to have received redundancy payments were not on the pay roll at Chipping Norton. 22 Mr. Russo gave evidence that since he commenced employment with the respondent the applicant was hardly at work. His view was that light duties would continue to be offered to an injured employee whilst they are available, in an endeavour to try to get the person back to pre injury duties. He did not believe that the respondent was required to offer light duties on a continuous and permanent basis. Whilst the applicant may have been working in various capacities in the preceding seven years, the respondent did not have that sought of job in the system now. In coming to that conclusion Mr. Russo only considered the section that he managed, including secretary-type work, as opposed to the whole of George Weston. He said that for the period of seven years that the applicant spent working, all the jobs were temporary roles waiting for her to return to full capacity. 23 He agreed that the respondent had a policy that employees working on light duties were not to be offered redundancy. He also advised that the respondent had yet to determine the criteria for refusing an employee redundancy who did not wish to transfer from Chipping Norton to Chullora. 24 He also stated that the job dictionary used as the basis for the applicant's functional capacity evaluation was for the Chipping Norton position. This in re-examination he altered to the Chullora position. He agreed that a factor that played on his mind in coming to the decision to terminate the applicant was her attendance. Whilst this was a factor, it was never conveyed to the applicant. In essence Mr. Russo agreed that in his mind, the applicant was a lame duck or a liability to the respondent's business rather than an asset. 25 In re-examination he also stated that it was her ability to carry out full time work at Chipping Norton and her attendance were the factors he relied on. He was unaware of the functional assessment evaluation report at the time of making his decision to terminate. He was aware of her restrictions but no suitable duties were left. 26 He also stated that he had spoken with the respondent's OHS department to try and find alternative employment but was not successful. Prior to termination Mr. Russo did not personally sight any medical reports but relied on the OHS department views. Consideration and Decision. 27 The applicant had been a long- term employee of over ten years with the respondent. Since her injury she had worked in a number of different jobs on various shifts for over seven years. The applicant stated and no evidence was brought to the contrary, that employees had been told at a meeting that those who did not transfer from Chipping Norton to Chullora would be entitled to a redundancy payment. 28 The applicant sought a transfer to Chullora which was accepted. She had a functional assessment evaluation for the job she was to do at Chullora. The report of that assessment expressed that she was not physically fit to do that job. 29 The responded stated that the termination of the applicant was as a consequence of her inability to carry out a full time job and her attendance at Chipping Norton. 30 By attendance Mr. Russo meant lack of it. No evidence was brought before this Commission to quantify this alleged lack of attendance or the reason(s) for her absence. There was evidence that as a consequence of participating in the functional assessment evaluation the applicant was physically sore and as a consequence was absent from work. Because of the lack of evidence the Commission had no means of determining that this stated reason of her lack of attendance by the respondent was justified as a ground for dismissal. No evidence was brought before the Commission that the issue of non- attendance was ever put to the applicant at any stage in her employment. She therefore was never placed on notice by the respondent that this issue was of a concern and therefore was given no opportunity to defend herself. 31 The other reason given by Mr. Russo was the lack of alternative light duty jobs. In expressing this he was stating Tip Top Bakeries rather than George Weston, and was relying on advice received from the OH&S department. Other than that statement by Mr. Russo, no other evidence pertaining to this issue was provided by the respondent. 32 Other than the functional capacity evaluation report, no other medical evidence concerning the applicant was provided by the respondent to the Commission. 33 When the applicant was terminated, it was by way of written correspondence without any prior warning. 34 In his final submissions Mr. Samios for the respondent stated in part that: "I am not even certain the relevance of the Chullora operation to this debate, because our view is the dismissal revolves around Chipping Norton." 35 If that was their submission, then the relevance of the evaluation report (Ex C) ceased to exist. 36 The respondent stated that the job the applicant was doing at Chipping Norton had disappeared and the respondent had looked for alternative employment but was unsuccessful. 37 After carefully reading the evaluation report it is clear that the evaluation was directed at the prospective job at Chullora. Mr. Russo stated in evidence that he had not seen this report prior to his determination to terminate the applicant. 38 The letter of termination stated that a review took place "along with supporting medical evidence ……..". No medical evidence other than the evaluation report,(for the new job at Chullora) was placed before the Commission. The respondent had therefore placed no medical evidence before the Commission to support it's action of terminating the applicant from her position at the Chipping Norton site. 39 I also do not accept that for the period of seven years the applicant was only carry out temporary jobs. For such an extended long period of time, it is my view that the applicant carried out a variety of jobs that were not only in accordance with her restrictions but assisted the respondent in their day to day business. 40 No evidence was placed before the Commission by the respondent to quantify the alleged absences and the reasons for such absences of the applicant prior to her termination. 41 If the respondent had cause for concern about such absences then it would have been appropriate for the respondent to hold a meeting with the applicant to allow an exchange of views and information to take place. Also could be discussed the respondent's view that alternative jobs were no longer available and the present medical health of the applicant. Such a meeting should have but never did take place. The applicant, an employee of over ten years received her termination letter in the post. This was received after the applicant had been promised by Mr. Russo that he would get back to her. I find the lack of consultation by the respondent with this long-term employee unacceptable. 42 It is my finding that the termination of the applicant by the respondent was unreasonable. Clearly, there was no procedural fairness afforded to the applicant by the respondent. The applicant was given no opportunity to answer the concerns held by the respondent. 43 Also in summary no relevant medical evidence or absenteeism history was brought before this Commission to justify the respondent's action. 44 As the work at the Chipping Norton establishment by now has ceased, I do not think it practical to order the reinstatement of the applicant back to Chipping Norton. 45 I therefore make the following Order: ORDER 1. That the respondent pay to the applicant the sum of $16,000. 2. That the above sum be paid to the applicant within 21 days of the date of this decision. D.RITCHIE COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.