Industrial Relations Commission of New South Wales CITATION: Cossini v Howpeth Pty Limited Trading As Fishermen's Wharf Seafoods [2006] NSWIRComm 119 APPLICANT PARTIES: Patricia Cossini RESPONDENT Howpeth Pty Limited T/As Fishermen's Wharf Seafoods FILE NUMBER(S): IRC 4261 of 2005 CORAM: Harrison DP CATCHWORDS: Termination of employment - failure to disclose work injury - failure to disclose worker's compensation claim on application for employment Held - termination of employment not harsh, unreasonable or unjust LEGISLATION CITED: Industrial Relations Act 1996 Hollingsworth v Commissioner of Police (No 2) 88 IR 282 Bell v Lever Brothers Ltd 1932 AC 15 CASES CITED: Commissioner of Police v Hollingsworth 77 IR 339 Gordon and Gotch (Australasia) Ltd v Cox (1923) 31 CLR 370 "The Employee's Right to Silence" (1983) 57 ALJ 607. HEARING DATES: 16/2/06 DATE OF JUDGMENT: 04/10/2006 APPLICANT Solicitor Mr G Archer LEGAL REPRESENTATIVES: RESPONDENT Mr P Hofbauer JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Monday, 10 April 2006 Matter No IRC 4261 of 2005 PATRICIA COSSINI AND HOWPETH PTY LIMITED T/AS FISHERMEN'S WHARF SEAFOODS Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 JUDGMENT [2006] NSWIRComm 119 1 Ms Patricia Cossini ("the Applicant") commenced employment with Howpeth Pty Limited trading as Fishermen's Wharf Seafoods ("the Respondent") on 1 December 2004. Ms Cossini's employment was terminated by the Respondent on 7 August 2005. 2 The application in this matter was filed on 15 August 2005 and was subject to conciliation on 16 September 2005 which resulted in directions for arbitration scheduled for 15 December 2005. Those proceedings were subsequently deferred by agreement of the parties due to pressing commercial circumstances arising from the pre-Christmas trading period. The matter was subject to hearing on 16 February 2006. 3 Mr G Archer, solicitor of Archer and Archer, appeared on behalf of and brought evidence from the Applicant; and Ms Julieanne Miller, an employee of the Respondent from 28 December 2004 until a date in early August 2005. 4 Mr P Hofbauer, the Principle of the Respondent appeared on his own behalf. Mr Hofbauer gave evidence and was subject to cross examination by Mr Archer. Mr Hofbauer also brought evidence from Ms J Spears employed as Financial Controller by the Respondent. 5 Fishermen's Wharf Seafoods is a retail and wholesale seafood business operating at Nelson Bay for the past 17 years. Mr Hofbauer's evidence is that the business employs 25 staff in a permanent and casual capacity, working in customer service and back of house areas. 6 The Applicant described herself as the Assistant Manager of the retail fish and chip section known as Bub's Takeaway. 7 Mr Hofbauer deposed that the Applicant was employed as a cook/manager, with responsibility for rostering, purchasing and general cleanliness of the kitchen premises. There is no real dispute between the parties of the duties required of the Applicant. 8 The Applicant's employment was terminated by correspondence dated 1 August 2005 in the following terms: 1st August 2005 Pat Cossini, After many recent discussions with you, it has become increasingly apparent that your back injury is inhibiting you to fulfill your obligations as manager of Bubs Takeaway. I have been informed that prior to commencing full time employment with Howpeth Pty Ltd, you worked as a Cook for 3 years during the time the Monin family owned and operated the business. During this time, I am told that you sustained an injury to your back when you fell down the stairs that lead to the General Office, the result of which was a workers compensation claim through GIO Insurance. This was well prior to your employment with Howpeth Pty Ltd. Upon completing your employee application form (1 Dec 2004) you failed to disclose that you had claimed workers compensation. In fact you wrote a blatant "NO", knowing full well that this was false. As your new employer, it is unacceptable that you are not performing your tasks efficiently and competently as a consequence. We have received numerous complaints from your staff members who are concerned by your health status and they are of the opinion that you are not performing your duties satisfactorily. Joanne informed you some weeks ago to terminate the services of Julie Ann Miller on the basis that we do not employ family members, or persons involved in a relationship with another employee. This has still not been actioned. At 8.55 am on Friday, July 22, 2005, you telephoned to inform Cheryl Scully that both yourself and Julie Anne were ill and not coming to work when your start time was 8.30am. I am also advised that you have without approval, changed your roster for Saturday 30th July and Sunday 31st July, 2005 and you will not be working on those days. Regretfully, you have left us with no option other than to terminate your employment forthwith and we hereby give you one week's notice of our intention for you to cease work end of trade Sunday 7th August, 2005. It would be appreciated that all items belonging to the company, ie; uniforms, keys etc, be returned at this time. Final payment of entitlements will be made promptly after these items are returned. 9 Mr Archer contended that termination of the Applicant's employment was precipitated by the fact that she had entered a same-sex relationship with Ms Julieanne Miller, also employed by the Respondent. THE EVIDENCE 10 Mr Archer tendered a copy of the application for employment form completed by Ms Cossini (exhibit 1). 11 In completing the application for employment Ms Cossini responded to the requirement to list her previous employment by advising that she was currently employed at Video Ezy as an assistant manager and had previously been employed at Bub's Fish and Chips as a cook for three years. 12 The Applicant's evidence was that she had left her employment with Bub's after "butting heads" with Mr Monin, the then proprietor of the business. 13 The Applicant deposed that she was keen to return to Bub's as it offered a higher earning potential, putting that in order to meet the availability requirements of the Respondent and give notice to Video Ezy she worked both jobs in the first week of her employment with the Respondent. 14 Contained within the section headed "Health" of exhibit 1 are the following questions: Do you suffer from any illness or injuries, which may affect your performance at work? Have you ever claimed Workers Compensation? Do you have any medical conditions? ie. asthma, diabetes, epilepsy… Have you ever been charged with a criminal offence? 15 The Applicant answered "No" to each question. The application form concludes with: 1. Fishermen's Wharf Seafoods is an equal opportunity employer for all employees and applicants for employment. For further details refer to our Employee Handbook, which will be provided to you upon commencement of employment. 2. Fishermen's Wharf Seafoods reserves the right to terminate employment within a three (3) month probation from commencement. 3. I agree that all details are current and correct, and have no hesitation with having my references checked. 4. By my signature below, I hereby state that I have read the application form in its entirety and agree to be bound by the Rules and Regulations of Fishermen's Wharf Seafoods, which are clearly set out in the Fishermen's Wharf Seafoods Employee Handbook. 16 The Applicant deposed that she was never given a copy of the handbook referred to in item 4. There is no evidence from the Respondent to refute this evidence. 17 Ms Cossini confirmed that in November 2003, whilst working at Bub's Takeaway, she fell over on wet and slippery stairs resulting in a large bruise on her buttock which required medical attention and, in her evidence, four and a half to five days off work. Ms Cossini deposed that the injury healed and she gave it no more thought. 18 Ms Cossini deposed that she did not complete a workers compensation form or make any claim in respect to this event. Ms Cossini put that she signed some document at the request of her then employer, which she understood to be a record of events. The Applicant's evidence is that it is her understanding that workers compensation involves a formal claim resulting in payment of a lump sum. Instruction to terminate the employment of Ms Julianne Miller 19 The Applicant deposed that she entered a relationship with Ms Miller in or about February 2005 which concluded in or about July/August 2005. On hearing of this relationship Ms Joanne Howath, a Director of the Respondent instructed the Applicant to terminate the employment of Ms Miller on the basis that company policy prohibited employment of family and friends. 20 The Applicant deposed that the discussion with Ms Howath was amiable though upsetting for her. The Applicant deposed that she informed Mr Hofbauer that she was in the process of breaking up with Ms Miller, and the matter was left at that point and discussion turned to operational matters. 21 The Applicant deposed that she found the prospect of termination of Ms Miller's employment disturbing and complicated by the difficulties in their relationship. The Applicant formed the view that Ms Howath did not press the termination of Ms Miller's employment as the relationship was ending. 22 Mr Hofbauer deposed that the "no family no friends" policy was applied across the business to ensure that family and friends did not work in the same section of the business to protect them and the business from breach of security. 23 The Applicant deposed that Ms Howath informed her that the policy was directed at preventing disruption to the business such as staff seeking to take holidays together, which caused the business to suffer and added to the difficulty in replacement of experienced people. 24 Mr Archer submitted that the "no family no friends" policy was unusual business practice, suggesting that it was an invention to cover the real intent of removing the Applicant's partner, raising issues of unlawful discrimination. 25 Mr Hofbauer refuted this, asserting that it was a standard policy applied in all of his business ventures. 26 It is not necessary to make a finding in respect to the validity of the "no family no friends" policy in determination of this matter. 27 I conclude that failure by the Applicant to act on the instruction to terminate Ms Miller's employment is not available to the Respondent to support termination of the Applicant's employment as it was not a matter pursued further by the Respondent by instruction or warning at any material time. Capacity to undertake duties 28 The Applicant deposed that she was able to undertake her duties and was successfully pursuing a course of study in retail management. 29 Mr Hofbauer contended that he received many complaints from co-workers that the Applicant was not undertaking her fair share of the work and that she spoke down to them in a demeaning and hostile manner. Mr Hofbauer was supported in this testimony by the evidence of Ms Spears. 30 There is no direct evidence to support these allegations. Mr Hofbauer deposed that he spoke to the Applicant following a staff meeting, counselling her in respect to the manner in which she addressed staff, but he did not otherwise bring issues to her attention or give her a formal or informal warning. 31 The Applicant deposed that she carried out her duties satisfactorily and had received compliments from customers. 32 The Applicant accepted that there were some tasks involving heavy lifting with which she sought assistance from other staff, in particular the stronger young male employees, putting that this was a normal and usual practice. The Applicant put that she had not received any complaints from staff or admonishment from management in this regard. 33 The Applicant conceded that she experienced an increasing level of difficulty and required greater assistance from other staff in the latter months of employment as she became increasingly troubled by a sore back. 34 The assertion by Mr Archer that successful completion of modules of the traineeship in retail management is evidence that the Applicant was adequately performing her work is not accepted as having a logical connection in this case. 35 In the absence of direct evidence and specific warning to the Applicant concerning her work performance, the Respondent is unable to rely upon any performance issues to support the termination of employment. Original back injury 36 The Applicant's described the injury to her back in November 2003 as a fall down some stairs which resulted in a bruise to her posterior. 37 The Applicant deposed that she took four and half to five days off work. Her evidence is that she completed a WorkCover incident report describing how the accident occurred, the time of the event, and the presence of witnesses. The Applicant deposed that she received her normal pay without disruption. 38 The Applicant's evidence was that she did not fill out a worker's compensation claim or speak to a representative from the GIO or any insurance company. Ms Cossini's evidence was that a person attended the shop to investigate the incident but she did not know where that person was from. Recurrence of back injury 39 Ms Cossini's evidence is that during 2005 she experienced increasing back pain and discomfort leading to a consultation with a Dr S Illiadis on 27 May 2005 and again on 18 July 2005. 40 Ms Cossini deposed that she had consulted Dr Illiadis as her general practitioner in respect to all health matters, including the injury sustained in 2003, from approximately 2001 when she relocated to the Nelson Bay area. 41 Dr Illiadis issued an initial Workcover medical certificate on 18 July 2005 (exhibit 2) relevantly stating that the date of injury was 22 November 2003 and that in his opinion "the worker's employment is a substantial contributing factor to this injury". 42 Exhibit 2 states that the Applicant would be fit for suitable duties from 27 May to 29 August 2005. 43 Also on 18 July 2005 Dr Illiadis wrote to GIO Worker's Compensation (exhibit 6) stating: Ms Patricia Cossini has developed complications related to an earlier work related injury sustained in November 2003. She first presented with symptoms related to the original injury on 27 May 2005. She has had xrays and a cortisone injection into the R sacrililiac joint but without successful resolution of her pain. She is being referred to a rheumatologist for further assessment and advice. 44 The Respondent has a formal sick leave form printed on its stationery. Exhibit 4 is a sick leave form completed by the Applicant in respect to an absence on 23 June 2005, stating the reason for her absence as "sore back from fall down the stairs two years ago". 45 The form is undated and bears no evidence of processing by the Respondent in the office use section thereof. 46 The Applicant deposed that from 1 December 2004 to the termination of her employment she took five or six sick days, four of which were due to a sore back. 47 Ms Cossini deposed that she was surprised when Dr Illiadis linked her 2005 back problems with the fall in 2003. Ms Cossini accepted his advice and treatment, deferring to the doctor's professional opinion. 48 Dr Illiadis issued a second WorkCover Certificate on 5 August 2005 (exhibit 3) confirming his opinion that the worker's employment was a substantial contributing factory to the injury, that the Applicant "needs a few days to allow pain to settle", and that a management plan was awaiting Dr Schwarzer's assessment and advice. CONSIDERATION 49 I have held that there is no basis for termination of the Applicant's employment on the basis of conduct or behaviour during the course of engagement. 50 This matter turns upon whether the Applicant made a full and proper disclosure to her employer at the time of engagement; or whether by withholding information she could reasonably be expected to disclose she obtained employment on a false premise affording the employer the right to bring that employment to an end. 51 I accept that at the time of engagement the Applicant was not experiencing any symptoms arising from the November 2003 injury and genuinely believed that there were no medical conditions which restricted her or would restrict her in employment. 52 I cannot come to the same conclusion in respect to the application for worker's compensation made arising from that injury. 53 Neither Mr Archer nor Mr Hofbauer relied upon decided matters to inform their submissions. 54 The obligation of a prospective employee to disclose relevant information in an application for employment is considered by a Full Bench of the Industrial Relations Commission in Court Session (Wright J, President, Hungerford and Petersen JJ) in Hollingsworth v Commissioner of Police (No 2) 88 IR 282. The discussion found there, commencing at 311, includes a consideration of Bell v Lever Brothers Ltd 1932 AC 15; the decision of a Full Bench (Fisher P, Schmidt J, Neal C) in Commissioner of Police v Hollingsworth 77 IR 339; the judgment of the High Court of Australia in Gordon and Gotch (Australasia) Ltd v Cox (1923) 31 CLR 370; and an article by Professor McCarry entitled "The Employee's Right to Silence" (1983) 57 ALJ 607. 55 In Hollingsworth (No 2) the Commission in Court Session in concluding said at 320 and 321: Professor McCarry helpfully summarised the position, in a manner with which we agree, in the following way (at p 612): "The prospective employee is not obliged to disclose past faults or derelictions unasked. However, failure to disclose some factor which may amount to a lack of fitness for the position applied for may justify subsequent dismissal but not for failure to disclose per se; dismissal in that circumstance would be justified on the basis of incompetence or breach of the employee's implied warranty of skill. Failure to make disclosure can also constitute contributory negligence, and so reduce damages available if the employee is injured in circumstances where the information not disclosed has a causal connection with the injury. A prospective employee can be asked questions and a false answer will render him liable to dismissal (if subsequently employed) if the answer was material to the making of the contract. The prospective employee is not obliged to answer incriminatory questions, but there is no restriction on the inferences the employer may draw from a refusal to answer on that ground." 56 Ms Cossini was asked a direct question in respect to prior claim for worker's compensation, which I find on the evidence was material to creation of the contract of employment. 57 The answer provided was not correct. 58 I am not convinced that Ms Cossini was unaware or had genuinely forgotten that a period of up to five days absence from work due to an injury less than 12 months prior to completion of the application for employment with the Respondent was covered by worker's compensation. 59 I conclude that the termination of the Applicant's employment was not harsh, unreasonable or unjust. The application for relief is refused. 60 Matter No IRC 4261 of 2005 is so concluded. oo0oo 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.