Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane Transport [2003] QIRC 71 (2003) 173 QGIG 282

282 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 May 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch AND Brisbane Transport (Case No. B1422 of 2002) COMMISSIONER BLADES 9 May 2003 Unfair dismissal – Injured worker – Dismissed after 6 months of the injury – No likelihood of returning to work – Medical certificate certifying fit to resume not provided within 12 months of injury – Brisbane City Council Certified Agreement – Injured worker not a worker receiving sick leave – Sick leave provisions of the Agreement not applicable – Part 5 of the Industrial Relations Act 1999 not breached – WorkCover Queensland Act 1996 – Certified Agreement not breached – Dismissal not harsh unjust or unreasonable. DECISION The Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (Union) bring this application for the reinstatement of Robert Thompson in the employ of Brisbane Transport. The dismissal took effect on 27 August 2002. Mr Thompson was employed as a bus operator Level 4.5 at Virginia Bus Depot and was injured in his employment as a bus operator. It is alleged that the termination is discriminatory on the basis of disability and that it was not carried out legally but in breach of the Enterprise Bargaining Agreement (EBA). His employment with Brisbane Transport extended over 13 years. On 27 February 2002, Mr Thompson was stationary in his bus, giving right of way to another motor vehicle at Zillmere when a semi-trailer came from behind and ploughed into the back of the bus. He was pushed forward about 6 metres by the truck and taken to hospital by ambulance. He had an injury to his back and was in a state of shock. He says he was told by a Rehabilitation Officer, Mr Brian Abrahams, to make application for Total and Permanent Disablement because he had been off work for more than 4 months. He was assured by Mr Abrahams that this would not result in him being dismissed. In August 2002, he was summoned to a meeting with Messrs Peter King and Greg Newman for the purpose of discussing his dismissal. He was informed that because he had put in a Total and Permanent Disablement claim and had been on compensation for 6 months, he would be dismissed. He feels that it is harsh unjust and unreasonable that he has been dismissed through no fault of his own, simply because a semi-trailer ran into the rear of the bus. Mr Greg Newman, the Human Resource Manager of Brisbane Transport, told the Commission that Mr Thompson was injured on 27 February 2002 and that from the medical reports available, it became apparent that Mr Thompson was unlikely to return to work prior to 27 August, 2002. A review was conducted of Mr Thompson’s case and it established that: • Mr Thompson would not be able to return to work prior to 27 August 2002. • Mr Thompson would be unlikely to return to work for an extensive period beyond 27 August 2002. • There was a significant probability that he would never be able to return to work. -- 1 of 3 -- 23 May 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 283 A suitable duties program was offered by Brisbane City Council’s Rehabilitation Case Manager but Mr Thompson’s treating Doctor did not approve this program. All Mr Thompson’s medical certificates have specified total incapacity, making the provision of suitable duties probably nigh impossible. The hearing of this matter took place over two days. On 22 November, after evidence had been adduced, it emerged that there was to be a vocational assessment made on 4 December. On that basis an adjournment was granted to enable the possibility of a settlement to be considered. That failed and the case was finally heard on 6 May 2003. The results of that vocational assessment were not introduced into evidence before the Commission. The Commission was informed that the applicant’s WorkCover ceased on 15 April 2003. The reason is not in evidence. Needless to say, the applicant could not, as at the completion of the hearing, produce to this Commission a medical certificate which certified that he was fit to resume work as a bus operator. He received WorkCover benefits from the date of the accident until 15 April 2003. However, immediately after the hearing concluded, the applicant obtained a clearance for work. That clearance, which would have to be viewed in conjunction with any accompanying medical reports, only has relevance if the Commission is considering an order for reinstatement. It does not affect any consideration of whether the dismissal was harsh unjust or unreasonable. It is submitted that the termination was not in accordance with the provision of the EBA in that the sick leave provisions of that document applied. It was suggested that Brisbane Transport was trying to re-write the EBA by the introduction of a new policy and that it was endeavouring to circumvent the provisions of the EBA and establish new industrial practices in Brisbane City Council. Much was made of an allegation by the applicant that he was advised to lodge an application for Total and Permanent Disablement and it was that lodgement which resulted in the termination. Both allegations have been strenuously denied. The lodgement of the Total and Permanent Disablement application, in my view, and the reasons why it was lodged are irrelevant to this application. The dismissal was based upon his inability to perform his job as contracted and upon the medical advice on hand when the decision was made to terminate the contract. I have some doubts about the applicant’s evidence that he requested an assurance he would not be dismissed if he lodged the Total and Permanent Disability application. That evidence was strenuously denied and there was no need for the applicant to make such a request. This is an application for reinstatement because of a dismissal alleged to be harsh unjust or unreasonable. That is the matter to be determined. Under s 77 of the Industrial Relations Act 1999 (the Act), in deciding whether a dismissal was harsh unjust or unreasonable, the Commission must consider a number of identified matters and at (d) “any other matters the commission considers relevant”. Included in a consideration under that subparagraph would be the provisions of the EBA. A contract of employment can be brought to an end simply by operation of law rather than by a dismissal. This occurs when there is a frustration of the contract. In Marshall v Harland & Wolff Ltd (1972) 1 WLR 899, Donaldson J said that in addressing the question of frustration, a tribunal must ask itself: “Was the employee’s incapacity, looked at before the purported dismissal, of such a nature, or did it appear likely to continue for such a period, that further performance of his obligations in the future would either be impossible or would be a thing radically different from that undertaken by him and agreed to be accepted by the employer under the contract of employment?”. But apart from the question of frustration, the inability of an employee to perform that which he has contracted to perform gives the employer the right to terminate the contract of employment. In Finch v Sayers (1976) 2 NSWLR 540, Wootten J said: “. . . the usual understanding in many types of employment today is that prolonged incapacity of an employee does not automatically terminate the employment contract, but, subject to sick leave rights, excuses the employee from work and the employer from the obligation to pay, and gives the employer (and perhaps also the employee) the right to terminate the contract.”. However, there are protections to be found in the Act in relation to the dismissal of injured workers. Those protections are set out in Part 5 – Protection of Injured Employees, where s. 93 prohibits a dismissal within 6 months after an employee becomes injured. Section 95 provides further protection for an injured worker who is dismissed after 6 months of the injury. That section provides that the employee may apply to the employer, within 12 months after the injury, for reinstatement to the employee’s former position. First however, the employee must give the employer a doctor’s certificate that certifies the employee is fit for employment in the former position. In this case the contract was terminated on 27 August 2002 by letter dated 16 August 2002. That termination was not within the 6 months referred to in s. 93. Prior to the termination, a meeting was held with Mr Thompson and his Union representative on 12 August, described as a “show cause” type meeting. It was again confirmed at that meeting that a return to work was unlikely. A telephone call was made to Mr Thompson on 14 August during which it was confirmed that Mr Thompson had seen his Doctor since the 12 August and there remained no likelihood of his returning to work in the foreseeable future. On each of the medical certificates issued by the applicant’s Doctor, there was a certification that the applicant was totally incapacitated. An attempt had been made to provide some light duties for him but he rejected that as being unable to do so and this was supported by his Doctor. Even on 3 September, Dr Larder confirmed that the applicant was precluded from working in his normal job and in any other job. In fact, Dr Larder certified that applicant was “severely mentally ill” and required “extensive treatment”. On the medical evidence available to the employer at the date of termination, it was apparent that the incapacity was of such a nature and was likely to continue for such a period that performance of his obligations in the future would be either impossible or something radically different from bus operating and the 3 September certificate further confirmed this opinion. Although probably entitled to regard the contract as being frustrated, the employer instead elected to terminate the contract on the basis of the applicant’s incapacity. The Union alleges that it is the EBA which governs the right of Council to terminate the contract and not the common law. That submission brings into play s. 77(d) where the Commission, in determining whether a dismissal is harsh unjust or unreasonable, must consider “other matters”. Both EBA 2 and EBA 3 were produced to the Commission as exhibits. EBA 2 provides in Attachment A under the heading “Sick Leave Proposal”, the following: “The Council agrees to support employees during time of illness. The provisions of this proposal are based on needs and trust and ensure that adequate paid leave is available to any employee (other than an employee engaged casually) who is unable to attend work because of illness or injury (except for Workers’ Compensation). 1 Entitlement All employees (other than an employee engaged casually) who are unable to perform their duties on account of illness or injury (except injury covered by Workers’ Compensation) and who have worked for the Council for a minimum period of six weeks shall be entitled to unlimited sick leave on full pay. . . . -- 2 of 3 -- 284 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 May 2003 8 Workers’ Compensation All claims for work-related injury or illness should be submitted to the Workers’ Compensation Board of Queensland via the employee’s supervisor. Supervisors are to monitor any work-related incidences to ensure that all necessary Workers’ Compensation forms are completed.”. Those EBA provisions regarding workers’ compensation are consistent with the Legislative requirements regarding workers’ compensation. EBA 3, the Certified Agreement operating at the time of the dismissal, at clause 20 provides: “Sick Leave The partners remain committed to the overall sick leave arrangements introduced in EBA2. The key principles, which underpin the application of Council’s commitment to support employees during time of illness, need to be reiterated. Paid sick leave is provided to support employees through periods of personal illness and in the rehabilitation process. It is not provided as an accumulating entitlement, not an alternative to Workers’ Compensation for minor workplace injuries, not a replacement for external welfare arrangements for people no longer able to work. It is also not provided to be used in conjunction with income benefits from private insurance to create individual financial benefit. . . .”. By those provisions, the previous arrangements regarding workers’ compensation were carried forward. The Union submits that by using the phrase “not an alternative to Workers Compensation for minor workplace injuries”, the intent was to include major workplace injuries within the sick leave provisions. I reject that contention. The WorkCover Queensland Act 1996 at s. 3 provides that the Act binds all persons and requires all employers to insure workers against injury (s. 52). In other words, it provides a scheme to protect injured workers. Under s. 98, that Act provides for some employers to self-insure and a self-insurer is then liable in place of WorkCover (s. 116). Under s. 136, a worker cannot relinquish an entitlement to compensation for an injury sustained by the worker and an agreement to do so is of no force or effect. The result of these provisions is that the employer, by an EBA, cannot contract out of the WorkCover Act. Furthermore, EBA2 excluded an injury subject to workers compensation in its sick leave provisions and those arrangements for sick leave were incorporated into EBA3. Sick leave is not workers compensation and traditionally each has been the subject of discrete provisions. Under s. 531, the Industrial Relations Commission is not permitted to include in, or approve of, any industrial instrument containing a provision for accident pay on account of a worker sustaining an injury. The Union has referred to the Total and Permanent Disability Arrangements set out in Appendix 6 to EBA 3 and claimed it is applicable to cases under WorkCover. Appendix 6 is an appendix under clause 20 entitled “Sick Leave” where clause 20.2 provides, inter alia, “The agreed arrangements covering application for Total and Permanent Disability are detailed in Appendix 6.”. A similar submission is made in regard to Appendix 5 relating to the Rehabilitation Process. Clause 20.1 also provides that the agreed requirements in relation to rehabilitation are outlined in Appendix 5. The Union submits that because workers compensation is not mentioned, these sick leave provisions relating to rehabilitation and total and permanent disability apply. That ignores the provisions of EBA2 under the heading “Sick Leave Proposal”. There has been evidence which I accept, that rehabilitation services are offered to both sick leave cases and injured employees, but the administration is separate. City WorkCover handles workers compensation cases where there is an obligation imposed under Part 4 of the WorkCover Queensland Act and sick leave cases are dealt with under the EBA. The same procedure may be adopted in each case but the source of the procedure is different. It is a little like the fusion of law and equity where it was once said that “the two streams have met and now run in the same channel, but their waters do not mix”. The situation with total and permanent incapacity is also confusing. Section 196 of the WorkCover Queensland Act makes provision for total and permanent disability applications to be made to WorkCover, in this case the self-insurer City WorkCover, but other applications, not involving WorkCover are made to City Super (probably through Brisbane Transport) although it would seem that some WorkCover finalised cases can also eventually be the subject of applications made to City Super. Applications to WorkCover are covered by the WorkCover Queensland Act and success depends on that Legislation, not the EBA or City Super. Applications to City Super are not dependent on WorkCover or the views of Brisbane Transport as I understand it. That there is a reference in Appendix 6 to the payment of “sick leave from the onset of the illness until the first T&PD application is determined” is also an indication to me that the provisions of Appendix 6 are not applicable to compensable injury cases. By making a reference to payments or further payments, there seems to be conflict with s. 531 of the WorkCover Queensland Act previously referred to. These EBA provisions relating to sick leave simply cannot be read as applicable to both sick leave and workers compensation cases. All of this though, may not be that relevant for the real issue is, in my view, that the lodgement of a Total and Permanent Disability application cannot determine the fate of the employment of a worker. That fate is determined upon the medical reports available to the employer at the time of the dismissal. The law in respect to the dismissal of employees on WorkCover is covered by the Act, Part 5, sections 91 to 96 inclusive. As made relevant by the provisions of s. 77 of the Act, Mr Thompson was given an opportunity to show that it was likely he could return to work and he was provided with reasons for the dismissal. I am unable to conclude that there has been any illegality in this dismissal. It occurred in accordance with the provisions of the Act, and was not in conflict with any provision of the EBA. I am not satisfied that the dismissal was in any other way harsh unjust or unreasonable. Mr Thompson had the opportunity after the termination and prior to the expiration of the 12 month period identified in the Legislation to provide a medical certificate certifying his fitness for work. He failed to do that for whatever reason although on the evidence, he was totally incapacitated for work. It is now irrelevant. If he had provided one, the respondent was obliged to return him to the “employee’s former position”. However, the lawfulness of the dismissal would not be affected. The provision now of the certificate does not impose any obligation on the employer although it may result in new employment, depending on the employer and the content of the certificate and accompanying reports. It was claimed that in the past, no Brisbane City Council employee had been dismissed while on WorkCover. That claim was denied but it is also irrelevant because the Legislation allows for it to occur. There was evidence presented that two injured workers had been paid sick leave after workers’ compensation had been finalised. There is no evidence as to the circumstances in which those payments were made. Those payments may have been possible if there was a delay with a Total and Permanent Disability payout from City Super in addition to the payout from WorkCover but there is just no evidence. I do not consider any sort of a precedent can be created. There is a claim that the dismissal due to incapacity was discriminatory but no basis has been put forward for that claim. The Act allows for the termination of an injured worker, the common law allows it and the EBA does not prevent it. There can be no discrimination because one Legislative instrument provides for WorkCover cases and another makes a different provision for those on sick leave. The application is dismissed. B.J. BLADES, Commissioner. Hearing Dates: 2002 22 November 2003 18 March; 6 & 8 May Released: 09 May 2003 Appearances: Mr D. Matters, for the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch, on behalf of Mr R. Thompson. Messrs J. Thompson and G. Newman and Ms K. Odgaard, for Brisbane Transport. -- 3 of 3 --