Cumberland v Australian Meat Holdings Pty Ltd [2005] QIRC 181 (2005) 180 QGIG 72

[Extract from Queensland Government Industrial Gazette, dated 13 January, 2006, Vol. 181, No. 2, pages 72 - 74] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - application for reinstatement Raymond Cumberland AND Australian Meat Holdings Pty Ltd (B/2005/61) COMMISSIONER EDWARDS 21 December 2005 Termination of employment - Dismissal - Application for reinstatement - Evidence - Medical condition - Sick leave - Stand-down - Application refused. DECISION By application filed on 14 January 2005 Raymond Cumberland (the applicant) made application pursuant to Chapter 3, Part 2 of the Industrial Relations Act 1999 (the Act) for reinstatement to his position with Australian Meat Holdings Pty Ltd (the respondent) in Townsville. The applicant commenced employment on 9 February 1998 and was employed as the Quality Assurance Manager at the time of the separation. On 17 December 2004 Wilson Ryan Grose, Lawyers on behalf of the applicant, wrote to the respondent regarding the employment issue. As a result the employment terminated effective from 24 December 2004. It was the view of the applicant that: (a) he was unfairly dismissed on 24 December 2004 in that his employer failed to respond to the letter of Wilson Ryan Grose dated 17 December 2004; or (b) he was constructively dismissed on 24 December 2004 and that the circumstances of his constructive dismissal amount to an unfair dismissal within the meaning of Chapter 3, Part 2 of the Act. The Commission accepts that the applicant enjoyed an excellent work record from his date of commencement in 1998. In May 2002 he was diagnosed with Arrhythmia and in June of that same year was then diagnosed with Atrial Fibrillation. The applicant had a pacemaker fitted on 24 July 2002 during which time he had one week off as sick leave due to this medical procedure. Towards the end of 2002 the applicant began suffering from heart symptoms again. As a result of this, the applicant took one week off work. After returning to work he was requested by the respondent to take thirteen weeks off work as sick leave with pay and arrangements made by Colonial Insurance, which was arranged by the respondent for the benefit of the applicant to then pay income protection insurance payments after the thirteen week period ceased. With the respondent's support, the applicant took advantage of the offer of paid sick leave and, as requested by the respondent, arranged for documentary support to be obtained from his doctor in order to assist the processing of the income protection insurance application with Colonial Insurance. The letter of Dr Carson dated 29 March 2004 was in support of the Colonial Insurance application. In July 2004 the applicant had a His Bundle Ablation carried out at the Prince Charles Hospital, Brisbane. In September 2004 the applicant attempted to return to work. At this time the insurance payments from Colonial Insurance ceased. On 22 September 2004 the respondent wrote to Dr Denman and to Dr Carson requesting, among other things, confirmation that the applicant was medically fit to return to work. A medical certificate was provided by Dr Santosh David dated 29 September 2004 confirming the applicant was fit to return to work. Further, by letter dated 29 September 2004, Dr Carson confirmed in writing the applicant was fit to return to work and by correspondence dated 29 September 2004, Dr Denman confirmed the applicant was medically fit to return to work. In addition, there were also telephone calls between James Healy on behalf of the respondent on 24 September 2004 to both Drs Carson and Denman in which it was discussed that the applicant was fit to return to work and that there was no medical reason why the applicant could not return to work. Following his return to work on 11 October 2004 and as a result of collapsing at work that day, the applicant was taken to hospital by ambulance and released shortly thereafter by the hospital after observations were carried out. The applicant was provided with a medical certificate confirming he could return to work the next day, 12 October 2004. The respondent requested the applicant not to return to work and by letter of 19 October 2004 he was stood aside. The letter stated, inter alia: "AMH has decided to stand you aside until we receive and revise further specialist medical information in response to the following question: -- 1 of 4 -- 2  What specifically triggered the incident on Monday 11 October, 2004? Please identify all issues, including environment factors, which may have triggered the incident on Monday 11 October, 2004.  What medical explanation can be provided to explain the physical reaction to any environmental conditions which occurred on that day?  What other elements, conditions or incidents, may result in the occurrence of further episodes of a similar nature?  What future reactions may be experienced?". The authority to stand-down an employee is provided for by means of s. 98 of the Act which states: "Permissible stand-down of employee (1) An employer may stand-down an employee on a day, or for part of a day, when the employee can not be usefully employed because of something that happened (a) for which the employer is not responsible; or (b) over which the employer has no control. (2) The employer may stand-down the employee without pay, unless an industrial instrument provides otherwise. (3) This section does not apply to an apprentice or trainee.". The appeal is provided for by s. 344. On being allocated this matter on 21 October 2005 the Commission read the file and immediately noted that the legal representative for the applicant had not sought relief under s. 344 of the Act. As the parties made no specific reference to s. 98 or s. 344 of the Act, the matter was raised by the Commission as a means to give the parties an opportunity to be heard. In this regard, it was the submission of the applicant that at no time was any mention made of the stand-down pursuant to the provisions of the Act. The applicant submitted in any event, even if it were such a case, which is denied, then the reasonable position would be to simply allow the applicant to return to work on the basis that there is no evidence supporting his stand-down. At all relevant times, the applicant was ready, willing and able to perform his duties of employment with the respondent. Further, it cannot be said that he could not be usefully employed by the respondent. It was further submitted that there was no notice to the applicant of any intention by the respondent to stand the applicant down pursuant to s. 98 of the Act and, on that basis, the applicant was prevented from exercising any right of appeal in this regard. If the applicant was held to be stood-down within the meaning of the Act, then he should be immediately reinstated and orders made pursuant to s. 78(4) of the Act including any order maintaining his continuity of service and an order for his lost remuneration. The Commission records the industrial instrument under which the applicant's employment was regulated included the Act. Other documentation provided to the Commission made no reference to stand-down. Accordingly, for the applicant to be requested not to attend work the traditional and regularly used provision is s. 98 of the Act. In this regard the Act does not specify that the notice of stand-down must be by means of prescribed form. Furthermore, occasions arise whereby decisions are made or actions initiated without specific reference to a section of the Act or a clause of an industrial instrument. In this regard, the letter from Wilson Ryan Grose does not indicate the section of the Act to which reference is made. It states: "1. Our client instructs he commenced employment with you on a full time basis in February 1998. 2. Our client instructs he has been ill as a result of a medical condition known as Atrial Fibrillation. 3. Our client has sought treatment in respect of this condition and has been provided with a clearance from his medical specialist, allowing him to return to work. -- 2 of 4 -- 3 4. Despite this, it would appear you have refused to allow our client to return to work and have failed to pay our client in accordance with his agreed salary. 5. Our client instructs his condition in no way prevents him from performing the tasks for which he was employed. 6. Your actions are in breach of the Industrial Relations Act as your behaviour has effectively terminated our client's employment. This termination is harsh, unjust and unreasonable and is also invalid on the grounds that it appears to be on the basis of an impairment. In addition, your behaviour is in breach of the Anti-Discrimination Act on the basis that our client is being treated less favourably on the basis of an impairment in the area of work. 7. Our client requires you to attend to the following within seven (7) days of today's date: (a) reinstate our client to his position as Quality Assurance Manager. (b) reimburse our client for all wages lost between the date you prevented our client from returning to work to the date of his reinstatement. 8. In the event you fail to reinstate our client within the time specified then our client will assume he has been terminated and will be making an immediate application to the Industrial Relations Commission for reinstatement and payment of wages from the date of dismissal to the date of reinstatement. 9. We are also seeking our client's instructions in relation to an Application to the Anti-Discrimination Commission claiming damages for discrimination in the area of work on the basis of an impairment.". The Act provides in the event of stand-down for avenues of appeal which would have enabled the parties to provide submissions and evidence in regard to the means of the term "useful employment". If such an application had been lodged, the Commission is of the view that the applicant would have had a much easier task to argue along such lines especially when one considers the size of the respondent's workforce. So be it, no appeal was lodged but the letter of 17 December 2004 was sent some time after 19 October 2004, therefore, it is not for the Commission to decide whether the applicant could have been usefully employed. In consideration, the procedures followed by the respondent and the period of paid leave already approved, there is no doubt that based on the evidence that the respondent would permit a return to work as soon as the medical information to the satisfaction of the respondent became available. No time period was put in place by the respondent as the Commission assumes that recognition was given to the fact that the medical assessment must be undertaken in a professional manner. In view of the communications already in place, as outlined by the evidence of Ms Rae, the Commission accepts that there is no legal requirement for the respondent to respond to the demands of the letter of 11 December 2004, especially paragraph 7. In Iskander v. Brisbane Display and Shopfitting Pty Ltd (1997) 154 QGIG 806, Chief Industrial Commissioner Hall noted that the expression "constructive dismissal" has leaked into the reported decisions of Australian Industrial Tribunals over the past twenty years. In that decision the Chief Commissioner doubted that the adjective "constructive" adds anything, if at all, that is involved in the notion of a constructive dismissal, is a proposition to an employee to "resign or else". The Chief Commissioner went on to say that "[i]t has always been the case that one must go past matters of form and look at the whole facts and characterise the transaction.". The respondent acted in a manner that was consistent with obligations to ensure that workplace health and safety requirements were complied with. The Commission is satisfied that the respondent was not legally required to specify the section of the Act in relation to stand-down. The letter and email from the applicant dated 10 January 2005 states: "Re: Status of Employment Maureen, -- 3 of 4 -- 4 It is my intention to seek alternate employment and not return to AMH Townsville. I understand that my employment has been effectively terminated by AMH (therefore no requirement for any further notice to be given by either party). I am now in a position that requires an almost immediate influx of cash and request that a Separation Certificate be provided dated 24 October 2004 (the effective day of my dismissal). This will enable Centrelink to provide Newstart Funds not otherwise available. Yours sincerely, Ray Cumberland.". The Commission is satisfied that the applicant resigned as he wished to pursue alternative employment. The Commission further accepts that the date of 24 October 2004 is incorrect. The application is refused. K.L. EDWARDS, Commissioner. Hearing Details: 2005 31 October 1 November Released: 21 December 2005 Appearances: Ms R. A. Bennett of Wilson Ryan Grose, Solicitors on behalf of the applicant. Mr A. K. Herbert directly instructed by the respondent. Government Printer, Queensland The State of Queensland 2006. -- 4 of 4 --