Battle v Benson Micropropagation Pty Ltd [2003] QIRC 99 (2003) 173 QGIG 491

13 June, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 491 ###################################################################################################################### ## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Debbie Battle AND Benson Micropropagation Pty Ltd (No. B1620 of 2002) COMMISSIONER THOMPSON 30 May 2003 Application for reinstatement – Witness evidence – WorkCover claim – Redundancy – Termination harsh, unjust and unreasonable – Reinstatement impracticable – Compensation ordered – Application granted. DECISION Background An application was filed by Ms Debbie Battle (applicant) on or around 12 October 2002 in which it was alleged that her employment had been terminated by Benson Micropropagation Pty Ltd (respondent) in a harsh, unjust and unreasonable manner. Applicant Ms Battle was self-represented and relied solely upon evidence given on her own behalf. Her evidence covered her employment history from commencement with the respondent on 16 November 1998 including reference to a variety of tasks undertaken during the course of her employment. Having been employed initially on a casual basis, she was offered (and accepted) full-time employment on 9 February 2000 where she worked a thirty- eight (38) hour week. In January 2001, due to personal circumstances, the applicant reduced her hours (by agreement) to thirty (30) hours per week with the status of employment being that of permanent part-time. Up until she injured her right arm at work, on 5 March 2002, her employment with the respondent had been unremarkable, in that her performance or conduct had not been subject to question. The injury became problematic, in that there was a reoccurrence in June 2002, with the applicant going on to WorkCover on or around 22 July 2002. In August 2002, whilst the applicant’s rehabilitation from injury was progressing, the process appeared to be causing some concern in the workplace, with Mr Frank Benson, Managing Director and owner of the respondent company presenting a two (2) page document to the applicant identifying a number of workplace issues. In that correspondence (dated 26 August 2002), reference was made to the potential for a misunderstood problem to “get way out of control”, which appeared to relate to the duties and tasks that the applicant would perform once her rehabilitation from injury was completed. -- 1 of 4 -- 492 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 June, 2003 On the first page of the 26 August 2002 correspondence on the applicant’s rehabilitation, it was stated: “This is the reason why I am pushing to find out what is happening with your return to full work so that I can work out how to manage the total business. I fully realise that you need to go through the best-organised rehabilitation, especially in light of the fact that the injury had been around for six months and there appears to be a long way to go before it is gone. But please remember that not having you in the media room is making my job as manager a lot more difficult, as it is for the other people doing your old job.”. On the next page, in highlighting the options available in respect of the applicant’s full return to work, it was further stated: “Where to from here We could leave things as they are. Which to my line of thinking is very poor management, and would be unfair on Benson Micropropagation and the other staff members. OR We can advertise for a Laboratory Technician to work full time in the media room. You would then become a float, working in the laboratory cutting plants, topping up the hours in the media room when needed and be the back-up media maker (that is assuming we can find somebody appropriate). This is fact the position you had before Miriam had to stop working and you took over her job. It would take a lot of the pressure off Benson Micropropagation while your rehabilitation is completed. The end outcome result would be a far better situation for Benson Micropropagation. Under this proposal your salary will remain the same, with a bonus of $5 an hour above the award. For this salary you will be expected to be putting in the effort you were putting in when you[r] salary was first raised to this amount, consistently. This is how I read the situation, how do you read the situation and what are your thoughts.”. A letter of termination was issued to the applicant on 6 September 2002, some nine (9) working days after the previously mentioned correspondence relating to the applicant’s return to work, which advised that, due to a lack of orders, her position, along with four (4) other positions, was being made redundant. At the conclusion of the termination letter, the following comment was made in relation to the applicant’s rehabilitation: “Regarding your rehabilitation. Benson Micropropagation has done everything possible to assist you to make a speedy recovery from your right forearm strain (tendonitis). Your Occupational Therapist, Jo O’Sullivan told me, you doctor felt at the end of last week that you should be fully recovered in 3 to 4 weeks. A time from that coincides with your termination date after the two weeks notice from today. Thank you very much for your hard work over the last (almost) 4 years.”. In cross-examination, Mr Don Scotts, for the respondent, raised a number of matters including: • Applicant’s employment history with the respondent • duties • WorkCover file – acknowledgement of redundancy (page 22, line 38 of transcript): “Scotts: . . . received a letter from place of employment advising her that she and four casual employees would be made redundant as of two weeks due to downturn in work. So, again, in terms of discussions with your case manager you’ve indicated – the question is, I suppose, that you indicated to them that the redundancy was due to a downturn in work? Battle: That’s because it was on paper. That’s what – that’s what – it was put on – on here but my argument is that I was – I was on Workcover . . .”. • other employees made redundant on the same date • clearance certificate for her return to normal duties. Respondent Mr Benson was, for the respondent, the only witness relied upon in the proceedings. His evidence firstly covered the scope of the business in terms of product, then going to the seasonal aspects as to when the bulk of production is achieved. In the Spring of 2002, as a result of the drought, the level of orders received decreased to the extent that in early September 2002, it became obvious that the company would be facing “major problems” and, as such, he was reluctantly forced to terminate five (5) of his fourteen (14) staff. Individual meetings were held with each of the employees, including the applicant, on 6 September 2002 advising of the situation faced. At paragraph 3 of his affidavit, on the meeting with the applicant, the witness stated: “At that meeting I gave the Applicant a letter dated 6 September 2002 which she read and did not argue or disagree with in any way. The first time I was aware that she felt she was unfairly dismissed was when I received the ‘Application for Reinstatement’ dated 11 October 2002.”’ At paragraph 4 of his affidavit of evidence, a table identified the monetary sales of the company for the July to December 2001 period, and the same period in 2002: 2001 Dollars sold Dollars per week 2002 Dollars sold Dollars per week July $122,825 $24,565 July $94,983 $18,997 August $81,548 $20,387 August $70,014 $17,504 -- 2 of 4 -- 13 June, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 493 2001 Dollars sold Dollars per week 2002 Dollars sold Dollars per week Sept $77,720 $19,430 Sept $92,613 $18,523 Oct $68,000 $15,166 Oct $40,624 $10,156 Nov $67,938 $16,985 Nov $35,082 $8,771 Dec $53,000 $13,250 Dec $31,699 $7,925 The reference by the applicant that her employment was terminated due to her WorkCover claim was dismissed on the basis of the support given by the respondent during the life of the claim. According to Mr Benson, there was no conspiracy involved in the termination of the applicant, and it was evidenced that the financial circumstances of the company had left no alternative to initiating the redundancies. The applicant had been kept informed of all relevant matters leading up to her termination. The cross-examination of the witness touched on the following points: • level of production • sales figures • applicant’s injury – rehabilitation • the redundancies. The Commission raised with the witness an issue relating to the current staffing situation, involving those employees made redundant in September 2002 (page 39, line 8 of transcript): “Commissioner: So what I’m trying to get to is to try and find out you determined in September that five people would go and in effect Ms Battle’s the only one of those five who no longer works for you? Benson: And then Susan Payne. Commissioner: And Susan Payne, sorry. Benson: Correct. Commissioner: So there’s three – well if you had 14 when – if you had 14 when Ms Battle went and Susan Payne was one of those and you say you’ve got 13 now, have you put an additional person on? Benson: Yes, we now have a tertiary qualified person making the media. Commissioner: Right. Is that the person that’s mentioned – is that the person with ‘Doctor’ in front of their name? Benson: No. Commissioner: Right. So when did that person go on? Benson: Mid-January. Commissioner: And was that the job that Ms Battle was doing at the time of her termination? Benson: Not the same job but yes, doing the same work.”. Final Submissions Applicant • termination – harsh, unjust and unreasonable • letter of 26 August 2002 dealt with full return to work, yet ten (10) days later her position was redundant • after the initial three (3) weeks on WorkCover, the employer was questioning her ability to return to her original position • reinstatement under the circumstances not an option • compensation of six (6) months wages sought. Respondent • applicant not dismissed as a result of her injury or harshly treated • respondent proactive in supporting the applicant during period of injury • between 26 August and 6 September 2002 employer became aware that things not “travelling well” • five (5) staff, in all, terminated • applicant indicated that she was not fully aware of respondent’s business cycle and, as such, did not understand reasons behind her redundancy • dismissal not harsh, unjust or unreasonable or associated with WorkCover claim. Conclusion In determining this matter, the Commission had to consider competing claims from each of the parties. -- 3 of 4 -- 494 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 June, 2003 The applicant had argued that her termination was directly linked to her injury suffered at work and the subsequent WorkCover claim. Additionally for consideration was the actions of the respondent in providing correspondence to the applicant on 26 August 2002 which, in no uncertain terms, alluded to her return to full-time duties (at the hours worked prior to sustaining her injury) and then a letter of termination less than ten (10) working days later given to the applicant. The respondent relied upon the need to downsize due to a lack of orders received which, from his perspective, was directly related to the drought. The Commission was not of a view to accept the position of the applicant that, due to her work related injury, the employer had decided to terminate her employment. In fact, whilst there was evidence that indicated the employer had concerns how to manage the operations around the applicant’s inability to perform all tasks due to injury, there was also, before the Commission, uncontested evidence that the employer had been proactive in assisting with the rehabilitation program. The case of the employer, around the need to reduce staff on 6 September 2002 due to a lesser number of orders being submitted, appears to have some merit, in that sales in October, November and December 2002 were down on the figures from the corresponding period of the previous year. It is well accepted and established that an employer, due to circumstances where the work available diminishes or the company experiences financial difficulties, there is often a need to reduce the number of staff within an enterprise. Equally accepted and established is the requirement for the employer to be fair and reasonable in both the selection of those to leave and the process involved. That requirement, in my view, did not occur in this matter, in that the actions of the respondent on 26 August 2002, in providing correspondence and meeting with the applicant to discuss the options available on her full return to work, certainly left the applicant without reason to believe that her employment was to be terminated less than ten (10) working days later. In all, of the five (5) staff given notice on 6 September 2003, three (3) are now back in the employ of the respondent, with an additional employee hired to do, in the words of Mr Benson “not the same job but yes, doing the same work” as that work previously performed by the applicant. The evidence was that three (3) of the casuals dismissed were, in fact, receiving some work within weeks of their termination, yet no such offer was advanced to the applicant. There are certainly sufficient grounds before the Commission to conclude that there was a harshness and unfairness in the treatment of the applicant to warrant a finding in favour of the applicant. Remedy Section 78 of the Industrial Relations Act 1999 (the Act) allows the Commission to order reinstatement or re-employment of an employee on conditions at least favourable as the conditions on which the employee was employed immediately before the dismissal. There is also a discretion available to the Commission, at s. 79 of the Act, to order a payment of an amount of compensation if the options of reinstatement or re-employment would be impracticable. Having considered the views expressed by each of the parties in the proceedings, it is my decision that reinstatement or re-employment would not be practical due to a significant breakdown in the trust between the employee and employer that would affect any ongoing working relationship. Therefore, it is appropriate that an amount of compensation be awarded, however the six (6) months wages sought by the applicant could not genuinely be considered as the quantum in such an award. The amount to be awarded, which, in the opinion of the Commission, is fair and reasonable, is that of six (6) weeks wages at the rate of $483.60 per week. The respondent is ordered to pay to the applicant the gross amount of $2,901.60, twenty-two (22) days after the release of this decision. The appropriate income tax is to be deducted from the gross amount. I order accordingly. J.M. THOMPSON, Commissioner. Hearing Details: 2003 23 May Appearances: Ms D. Battle, Applicant. Mr D. Scotts, Nursery & Garden Industry Queensland Industrial Union of Employers, for the Respondent. -- 4 of 4 --