Azzopardi v WorkCover Queensland [1999] QIRC 116 (1999) 161 QGIG 52

52 QUEENSLAND GOVERN!vffiNT INDUSTRIAL GAZETTE [21 May, 1999 QlJEE~SLAND INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1997 s. 218 application for reinstatement Raymond Azzopardi AND WorkCover Queensland (No. B1935 of 1998) COMMISSIONER BLOOMFIEI,D 11 May 1999 Reinstatement - Dismissal Termination of Employment Sessional Rehabilitation Counsellor - WorkCover - Employer claimed frustration of employment contract Employee Performance Work related mcident Disciplinary investigation Applicant suffered stress from investigation and employer's handling of matter Applicant granted workers' compensation for various periods - Applicant received treatment from psychiatrist - Applicant was to return to work with reduced workload Audit of Applicant's work performance - Further disciplinary issue - Second absence on stress leave Short resumption of work - Subsequent lengthy absence from work - Arbitrated :\fatter Respondent grasped opportunity to rid itself of troublesome employee Dismissal Harsh, CnJUSt or Unr,,asonahle - Compensation awarded. DECISION This is an application by Mr Raymond Azzopardi which seeks his reinstatement to the position of Sessional Rehabilitation Counsellor with WorkCover Queensland (WorkCover). ::ODMA \GRPWISE\QIRC-DOM.IRO-POl .GENERALI :28863. l 21 May,1999- QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 53 Mr Azwpardi commenced employment as a Rehabilitation Counsellor with the predecessor of W orkCover in 1991. He apparently took an active interest in his role, making submissions to the Kennedy Inquiry into Workers' Compensation and, at one stage, runmng a case in this Commission in support of higher sessional rates for Rehabilitation Counsellors. Mr Azzopardi was dismissed by letter of 15 April 1998 (delivered to his home by courier) wherein he was advised that due to the frustration of his employment contract his employment was terminated as at the close of business on that date. An original application (B799 uf 1998) was lodged by the State Public Services Federation Queensland Union of Employees on 6 May 1998. The application was withdrawn on 3 December 1998. A subsequent apphcanon (BI 935 of I 998) - in identical terms - was lodged by Mr Azzopardi on 7 December 1998. No objection to the application being out of time was taken by WorkCover. Accordingly, I extend time within which to lodge the application to 7 December 1998. On 3 December 1998 Work.Cover lodged an application which asked the Commission to act under s. 346 of the Workplace Relations Act 1997 (the Act) to dismiss application No. B799 of 1998 "or any other application made in relation to the termination of employment of Raymond Azzopardi from Work.Cover Queensland on 15 April 1998". WorkCover's application was rejected by the Commission as presently constituted following proceedings conducted on 12 January 1999. The reasons tor such rejection are spelt out in the transcript of proceedings. However, material advanced during the course of those proceedings has been considered and treated by the parties and the Commission as if it had been advanced in the case which ultimately ensued. The employer's decision to terminate The decision to terminate Mr Azzopardi' s services was taken by the Chief Executive Officer of WorkCover after he received a recommendation from a Mr R. Wilde, General Manager, Human Resources. Mr Wilde had been appointed to that position on 9 March 1998 and shortly thereafter became aware of certain correspondence between WorkCover and Mr Azzopardi in relation to his continued absence from work. On 4 March 1998 Mr P. Cooper, Manager Human Resource Management, had written to Mr Azzopardi in the following terms:- ·'Dear Mr Azzopardi I refer to your letter of 19 February 1998 regarding the payment of the first four days of your workers' compensation claim. I also refer to your current absence from duty. In relation to your current absence I understand that you haw not provided documentation to cover your absence for the period from 1 December I997. If your reason for your continued absence is illness, it would be appreciated if you would submit a medical certificate, which covers your absence from 1 December 1997, to your supervisor. You should also indicate the expected date of your return to duty if this is known. Alternatively, and in line with HRM Policy No. 50, you should complete an Employment Interruption Certification form (FM.HR.027) and advise the period for which you mtend to remain absent from duty. A blank fonn is attached for your completion. I also understand that Allan Ebert, General Manager of the Support Services Division, had undertaken to provide you with results of the cultural audit conducted by C01porate Vision. I have therefore now attached the results of the cultural audit together with other relevant infonnation. If you have any enquiries regarding the above please contact me on telephone 32359938.''. It was common ground that the reference to the date ··1 December 1997" was incorrect and that the μ-oper date was 2 January 1998. Such error was perpetuated by Mr Azzopardi in his response of 23 March 1998 which was in the following terms:- "Dear Mr Cooper 1 refer to your letters oj 4.3.98 and 17.3.98. I acknowledge your advice that payment for the first four days of my compensatwn claim will be made on 25.3.98 and not I 1.3.98 as previously advised. I hope you agru that this unwarranted delay amounts to unsatisfactory public service by WorkCover. I am by now resigned to the fact that I cannot expect reasonable service from WorkCover until I resort to documenting my expectations. I will let others detennine the reasons for this. In relation to my current absence from work I confirm that I have not provided medical certification from 1.12.97 to date. My absence from work since 1.12.97 is the direct result of further harmsment and unfair treatment which I experienced when I resumed work on 4.8.97. I ha~•e provided WorkCover with medical certificates up to 30.11.97 and I have submitted a workers compensation claim/or my absence up to this date. On 1.12.97 1 decided to distance myself, as far as possible, from WorkCover in order to resume a nrmnal life. In the interests of my health and the wellbeing of my family I decided to stay away from work until my grievances against senior officers of WorkCover were investigated and appropriate outcomes determined. Consequently, I regret that I am unable to supply WorkCover with an expected return to work date until such time as I am guaranteed that WorkCover Management will adhere to ethical conduct andfaimns in its dealings with me.". It appears that Mr Wilde made the decision, based upon Mr Azzopardi's response, that Mr Azzopardi had frustrated his employment contract. Mr Wilde arranged for a letter to that effect to be prepared, which he discussed with the Chief Executive Officer. The Chief Executive Officer agreed that the termination could be effected and a letter - under the signature of Mr J. Randolph, General Manager. Insurance Operations - was delivered by courier to Mr Azzopardi on 15 April 1998. The letter of termination was in the following terms:- "Dear Mr Azzopardi On 4 March 1998 you were fonnally requested to provide medical certification in relation to your absence from work, and to nominate your expected date of return or complete the Employment Interruption Certification Form which was attached to that correspondence. You have not met any of these requests. ::ODMA\GRPWISE\QIRC-DOM.IRO-PO I .GENERALI :28863.l QGIG 21/5/99 -- 1 of 5 -- 54 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [21 May, 1999 As you are aware, the position of rehabilitation counsdlor is essential to the effective commercial and service delivery obligations of WorkCover Queensland. Your absence from work has created difficulties in this regard as it has been necessary to have other employees undertake your duties. This is an untenable situation fur WurkCover and is inconsistent with your contract of employment. You have now been on unauthorised leave since 5 January ]998 and despite the request in our letter of 4 March 1998 you have not provided a date on which you are expected to return to work. This situation has impinged uri WorkCover's ability to effectively manage or plan for future human resource needs. You are therefore advised that, due to the frustration of your employment contract, your employment with WorkCover is tenninated as at close of business today.". The background to Mr Azzopardi's absence On 21 January 1997 there was a verbal altercation between Mr Azzopardi and a female Rehabilitation Counsellor employed by WorkCover. �fr Azzopardi was acting in a supervisor's role at the time. A disciplinary investigation into Mr Azzopardi's conduct was sub.�equently ordem? by the Chief Executive Officer. Mr Azzopardi strongly objected to the incident being the sub3ect of a disc1plmary mvest1gat10n and wrote to the Chief Executive on 6 February 1997 setting out his concerns. In particular, Mr Azzopardi felt that the matter should have been handled as a gnevance between two employees and should not have been the subject of a disciplinary investigation. He felt that the decision of management to set up the disciplinary process was an example of management targeting him as an individual and reflected the fact that certain memhers of his i1mnediate management were biased against him. Notwithstanding his objections the investigation continued. However, because of various factors it took a considerable period of time before all parties, including Mr Azzopardi, were interviewed by the mvestigating team. After a somewhat lengthy delay - which was of concern to Mr Azzopardi the report findings were ultimately made available to him o n 6 May 1997, under cover of a letter from the Chief Executive Officer. The ktteru1formed Mr Azzopardi that the investigating team had concluded that he had made derogatory and demeanmg comments to the other employee. It also mformed him that he may he subject to disciplinary action pursuant to Human Resource Management Pohcy No. 29. �fr Azzopardi was given fourteen days to respond to the findings. A detailed reply by him was prepared and lodged on 20 May 1997. During the period of investigation and preparation of his reply Mr Azzopardi apparently became very str�ssed, breaking down several times. He sought medical advice on 22 May 1997. He was then provided with a medical cert1ilcate dedanng him untll for work on ground.s of stress. He did not immediately act on the certificate deciding instead to continue attending for work. However, on or around 29 May 1997 he suffered a breakdown at work and was encouraged to go home. In the following week he lodged a WorkCover claim for work related stress brought on by the mvest1gat1011 process and management's alleged harassment and victimisation of him. Mr Azzopardi continued to suffer stress and waited anxiously for the Chief Executive Officer's decision o n the disciplinary investigation. The delay in handing down a decision caused Mr Azzopardi to urge the SPSfQ to wnte to the Chief Executive Officer on his behalf about the delay. On the same day that the letter was sent by SPSFQ the Chief Executive Officer released his decision. The decision was that a reprimand would be issued to �fr Azzopardi and that the details of the reprimand would be retained on a separate confidential file which could be util ised if there was any further disciplinary action taken against him. Mr Azzopardi lodged an appeal on 29 July 1997. The appeal was heard on 28 August 1997. A de..:ision was issued on 15 September 1997 which substantially upheld the appeal , suhstimting the reprimand with a caution against a repetition ot any similar kmd of behaviour. During this period Mr Azzopardi was under the care and treatment of a consulting psychiatrist, Dr G. Larder. Mr Azzopardi visited Dr Larder o n 8, 11, 17, 22, 25 and 30 July 1997 as well as 5, 11 and 19 August 1997. A Rehabilitation Counsellor from WorkCover, a Mr P. Fowler, also attended on 11 July 1997. In a report dated 21 July J 997 Dr Larder indicated that in his opinion Mr Azzopardi had suffered an in3ury within the meaning of the WorkCover Queensland Act J 996. He indicated that Mr Azzopardi· s illness had arisen "insidiously during a period of severe and chrome work related stress . which is the direct result of the accumulation of a number of stressors which include interpersonal relat10nsh1p conflzct at work and a series of investigations and enquiries, the process of which has been arduous and drawn out, a situation which has aggravated Mr,1uopardi's symptoms.". The report went on to indicate that '"this condition requires the full range of biological, psychological an.d social management_princ1ples. it would be reasonable to expect that Mr Azzopardi's rehabilitation plan would continue over the next six to nme months depending on his respum;e to treatment. This condition is not stable nor stationary. . . . . The assistance of an external consultant to mediate and liase ...,ith management 1s essential m my opinion to facilitate attempts to resolve conflict. . . . . The prognosis should be good and should be reviewed about every thru months. Long te,m follow up and relapse prevention will be esuntial.". It was agreed that it would be beneficial if Mr Azzopardi returned to work and negotiations took place between Dr Larder and Mr Fowler concerning his return In mid-Julv Mr Fowler indicated that WorkCover had no objection to the rnvolvement of a psychologist to be named by Dr Larder to act as media�or to resolv; certain ongoing workplace conflicts and to assist in the implementation of Mr Azzopardi' s return to_ work program. Mr Fowler indicated that there were also some issues with Mr Azzopardi's work performance which needed to be addressed where the involvement of the appomted mediator could also be required. Advice was sought on the duties and hours that MI Azzopardi would be able to manage. Mr Azzopardi returned to work on 4 August 1997 under a medical certificate from Dr Larder which certified that although he was fit to return to work he would require treatment until 31 August 1997. A copy of the medical certificate was made available to WorkCover as "the employer" and WorkCover as "_the insurer•·. The fact that .\fr Azzopardi was to remain under treatment should have been a signal to WorkCover· s management that It needed to be cautious rn the way it dealt with his rehab1htat10n. Its management_ more than most others - should have been alert to the significance of the quahhcation on the approval given to Mr Azzopardi to return to work. lJnforeseen problems began to emerge al most immediately. Mr Fowler, Mr Azzopardi's designated_employee Rehabditation Counsellor, went on leave prior to Mr Azzopardi· s return and was replaced by a Ms Beak. Her discussion� with Mr Azzopardi shortly i:nor to his resumpt10n led her to conclude that he was not agreeable to mediatwn. She also sought an acknowledgment from Dr Larder that Mr Azzopardi was aware that performance issues would be addressed upon liis return and sought advice as to whether Mr Azzopardi was fit to deal with the associated stress. ::ODMA\GRPWISE\QIRC-DOM.IRO-POl.GENERALl:28863.1 21 May, 1999' QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 55 Dr Larder answered that mediation could not be forced upon individuals. He also indicated that Mr Azzopardi was aware that performance issues would be addressed on bis return to work and that he was fit to deal with the associated stress. In providing sudl advice Dr Larder had understood that the Rehabilitation Counsellor would be involved in all of the processes and that the return to work program would be negotiated between WorkCover and Mr Azzopardi with the Counsellor's involvement. It is not clear whether he knew that WorkCover dealt with its performance issues as a disciplinary matter and not m some other way. However, Dr Larder's intentions - which were known by Mr Azzopardi - were apparently not understo od by the replacement Rehabilitation Counsellor. Consequently, Mr Azzopardi returned to work on 4 August 1997 with different expectatio ns to those of his employer. On the day following his return he was informed by Mr Bird - the manager who had initial ly instigated the disciplinary investigation process in January - that Mr Randolph (General Manager - Insurance Operations) wished to see him. 'When Mr Azzopardi made enquiries about why he was being asked to see Mr Randolph, and raised the possibility of having a witness, Mr Bird apparently responded with a comment along the lines of "do you need someone to hold your hand?". This upset Mr Azzopardi in his current emotional state and given Mr Bird's involvement in the establishment of the initial disciplinary process. To compound the problem Mr Azzopardi had found an audit "working document" on his desk on the day of his return to work. This "working document" contained a number of entries which (in Mr Azzopardi' s view) were very critical of the efforts of the Rehabilitation Counsellor managing the files being audited. Mr Azzopardi was extremely concerned that the working document related to his files and that it had been left lying around the office, "for anyone to see". In any event, Mr Azzopardi agreed to meet with Mr Randolph but insisted on being accompanied by an officer of SPSFQ. Prior to attending the meeting Mr Azzopardi apparently made co ntact with Dr Larder to mform him of his progress and his concern about the forthcoming meeting with Mr Randolph. Dr L arder sent a fax on 5 August 1997 to Ms Beak about Mr Azzopardi' s return to wo rk and performance management review indicating that ·'the return to work (RIW) plan MUST be coordinated by his Rehabilitation Counsellor; the reviewlperfomumce evaluation process should proceed with assistance from his Rehabilitation. CounseJlor; the RIWplan and his (workers' compensation) claim application outcome are an ongoing problem." Dr Larder's concerns and requirements were not communicated to senior management prior to Mr Azzopardi's meeting with Mr Randolph on 6 August 1997. Nor did Ms Beak attend that meeting. At the meeting Mr Azzopardi was informed that an audit of his files had identified a number of serious deficiencies in relation to his rehabilitation input in a number of the claims reviewed. The first paragraph of the audit report stated that ·'the performance issues for this staff member zndicates a neglect of his daily duties over an extended period of time". Mr Azzopardi was to ld that he would have a period of twenty-one days to consider the report and to respond to the issues raised. Mr Azzopardi indicated that he thought that his work was, again, being singled out for review. He also indicated that he would not be able to respond to the show cause letter within the timeframe required due to his present state of health. An essentially unchallenged statement from Mr Brendan Kelly, of the SPSFQ, suggested that the meeting between Mr Randolph and Mr Azzopardi was tense and that Mr Randolph demonstrated little or no interest in the state of Mr Azzopardi's health. Mr Kdl y'.s statement also indicated that Mr Randolph had, at times, become "somewhat angry" when Mr Azzopardi expressed the view that he had been singled out in the investigation process. Mr Kelly also stated that Mr Randolph had become annoyed when Mr Azzopardi had indicated that he could not give a specific answer as to when he would be able to respond to the show cause letter. Mr Azzopardi visited Dr Larder on 11 August 1997. Dr Larder issued a medical certificate which indicated that Mr Azzopardi was flt to return to suitable duties from that date until the end of the month "as per RTW organised by Mary Beak". By the middle of August WorkCover had realised that Dr Larder (and Mr Azzopardi) had been intending two essentially different mediations to take place when Mr Azzopardi returned to work viz:- • mediation between Mr Azzopardi and the employee involved in the incident of 21 January 1997; and • mediation between Mr Azzopardi and WorkCo vcr in relation to the concerns that Mr Azzopardi had about his treatment by management. On 15 August 1997 Ms Beak faxed Dr Larder to indicate that she had met with Mr Azzopardi' s supervisor and senior management and that they had agreed that the first mediatio n could proceed provided that the other party was agreeable. However, as to the second mediation she said "PERFORMANCE REVIEW HAS OCCURRED AND PROCF.SS IN PIACE - MEDIATION JS NOT CONSIDERED APPROPRIATE BY MNGT BECAUSE CONFUCT {DID/DOES NOT EXIST". On 19 August 1997 Mr Azzopardi again visited Dr Larder and he faxed Ms Beak after the visit stating "( l) R.A is symptomntic and is not fit to fully return to work. (2) A graduated RIW plan with (a) limits on case file load (b) time to deal with resolving past issues (mediation; WorkCover claim; perfonnance review).". Despite such facsimile WorkCover management took until 26 August 1997 to meet and discuss a reduced workload for Mr Azzopardi. The outcome was that Mr Randolph decided that Mr Azzopardi could reduce his hours, thereby supposedly reducing his workload. A memo setting out WorkCover' s offer was given to Mr Azzopardi by Mr Campbell, his immediate manager. The memo referred to Mr Azzopardi' s al leged current workload of 50 files and stated that it could no t be reduced further. It went on to ask him to handle an increased workload, of 70 files, and stated that if he wished to continue to handle only his current workl oad of 50 files he would have to reduce his hours by 30%. Mr Azzopardi objected strongly indicating that he was, in effect, being asked to pay for his own rehabilitation in that his existing workload would not change despite the reduced hours. It would thus be totally contrary to the purported purpose of the whole proposal (of a graduated return to work) as he was being asked to do the same amount of work in 30% less time. On 25 August J 997 Mr Randolph had written to Mr Azzopardi concerning his work performance and enclosed a copy of a second audit of Mr Azzopardi's files. The second audit also identified a number of alleged serious deficiencies in Mr Azzopardi's work and he was afforded until 10 September 1997 to respond to the i.ssu�s raised. ::ODMA\GRPWISE\QIRC-DOM.IRO-POI.GEl'."ERALl:28863.IQGIG 21/5/99 -- 2 of 5 -- 56 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [2 1 May, 1 999 Ultimately, because o f these and other pressures including the fact that his Workers' Compensation claim lodged o n 2 June 1 997 had still not been approved - Mr Azzopardi went on further stress leave on or around 28 August 1 997. Mr Azzopardi continued to demonstrate concern at his alleged mistreatment by management and at the delay in the processing of his WorkCover claim. He sent facsimiles to the then Minister for Training and Industrial Relations on 7 and 1 4 August 1 997 concermng the handhng of his claim and his treatment by WorkCover management. Mr Azzopardi's WorkCover claim was formally rejected on 23 September 1 997, notwithstanding a detailed report from Dr Larder on 2 1_ Juiy 1 997 and an additional report commissioned by WO£kCover from a Dr Ydlowlees, head of the Department of Psychiatry at Queensland Umvers1ty who had each indicated that Mr Azzopardi's stress disorder was work related. Mr Azzopardi was absent from work between :\fonday I September and Thursday 26 September 1 997, inclusive. He resumed, duty on Monday 29 September 1 997 under a reduced caseload which had, apparently, been negotiated between Dr Larder, Mr Fowler and Mr Azzopardi s supervisors. However, Mr Azzopardi only remained at work for one week. He rang his supervisor on Monday 6 October 1 997 to report t hat he would be absent for that week and that he had a medical certificate to cover the period. Mr Azzopardi did not return to work again. Mr Azzopardi's activities between 6 October 1 997 and 15 April 1 998 Mr Azzopardi claimed that he had been in contact with Work.Cover' s rehabilitation coordinator Mr Fowler shortly after 6 October 1 997. Mr Azzopardi alleged that in such discussion he indicated to Mr Fowler that he expected t_o be absent for some time and that when he was ready to return to work he would give two weeks' notice. He alleged that Mr Fowler had responded with words to the effect that It would take Mr Azzopardi a long time to regam his health and that he should "take as long as it takes". When questioned about this alleged disrussion Mr Fowler could not recall it notwithstanding reference to a file note wntten by him on 1 3 October 1 997 in the following terms:- "lie (Azzopardi) confinned he was too ill to RTW at this stage and had to leave Brisbane with his wife tu get some medical rest. He said he would call Rehabilitation Counsellor in the near future and would give at least a week's notice before he intended to resume work. IJe said at this stage he was unsure if he would be coming back to work at all. Action await contact from Ray re further intentions to attempt RTW.". Mr Fowler ' s subsequent lack of action on Mr Azzopardi' s file leads me to conclude that he anticipated that Mr Azzopardi's absence would be lengthy and that he probably did indicate to Mr Azzopardi that he should •·take as long as it takes" to regain his health before he attempted to return to work. Although medical certificates were supplied for Mr Azzopardi' s initial absence(s) to cover the period up to 2 January 1 99 8 no _ce1:ificates were supplied for any absence beyond that date. Mr Azzopardi visited Dr Larder once in September and again in October 1 997. He stopped v1s1tmg after that. During his absence Mr Azzopardi applied, on 1 7 October 1 997, for a review of the decision by WorkCover on 23 September 1 997 to reJ ect his application for WorkCover which had been lodged in June. The reviewing officer, a Mr R. Williams, ,.note to Mr Azzopardi on 24 December 1 997 informing him that the application for review had been partially successful and that Mr Azzopardi would be paid for six weeks of the period of his absence. The letter also referred to certarn of the issues canvassed hy Mr Azzopardi iu relation to his treatment and the alleged biased attitude of some of his managers. Tiie wording of Mr Williams' Jetter was such that certain actions by management during the initial investigation of the incident of 21 January 1 997 were questioned m terms which suggested that Mr Azzopardi may not have been given the benefit of natural_ 3ust1ce and that there rrught not have been fairness by certain management personnel. Such observations appear to me to have reinforced Mr Azzopard1 ' s view that management had treated him unfairly. He wrote a letter to the Chief Executive Officer on 30 January 1 998 citing some of Mr Williams' observations and ·'demanding" that the CEO wnduct an enquiry into Mr Bird's handling of the incident of 2 1 January 1 99 7. He mdicated th�t "(f)ailure on your �e.h�lf to recti!Y, some of the zn1ust1ces perpetrated against me by WorkCover has only firmly enlrenched my detennznatzon to UNCO VER WORKCO VER .S COVER-UP . Mr Azzopardi also decided to appeal against the failure of Mr Williams to award him compensation for the full period of his absence and he eventually lodged au appeal with the Industrial Magistrate on 28 February 1 998. This appeal was subsequently settled when WorkCover decided to pay Mr Azzopardi for the full period of his absence between May and August 1 997. On 6 February 1 998 Mr Azzopardi lodged a WorkCover claim in respect of his absences between 28 August 1 997 and 2 January 1 998. No application has ever been lodged in respect of the period after 2 January 1 998. Mr Azzopardi was active in continuing to seek any information which he thought might assist him to establish a case that management had treated him unfairly in its handling of the 21 January 1 997 incident and in the assessment of his Workers' Compensation claim. To that end he went to WorkCover m early February 1 998 to inspect his Workers' Compensation claim file and established that an August 1 997 memorandum from Mr Randolph to the Officer managing his claim and which he had sighted in some FOI information provided to him was not on his claims hie. In this mem� Mr Randolph had alerted the Officer that Mr Azzopardi had participated in I ndustrial Commission proceedings when he was, alleg�dly, totally rncapacitated for work between 29 May and 4 August 1 997. He asked the Claims Officer to obtain a statement from the Departmental Officer who had represented WorkCover at that hearing. Mr Azzopardi formed the view that the memorandum had been improperly removed from his claims file and he wrote to the Criminal Justice Commission lodgmg a complaint. It is unclear whether the CJC had commenced to investigate Mr Azzopardi' s complaint at the time of his termination on 1 5 April 1 998. On 1 1 March 1 998 Mr Azzopardi also wrote to the then Mimster complaining that a document had been removed from his claim file and raising concerns about the actions of certain WorkCover officers. ::ODMA\GRPWISE\QIRC-DOM.lRO-POl.GENERALl:288 63.l 21 May, 1 999' QUEENSLAND GOVERNMENT INDUSTRIAL GAZE1TE 57 Further, on 1 1 March 1 998 Mr Azzopardi lodged an application to register the business name "Azza's Gardenology". The application stated that the business had commenced on 1 March 1 998. This information was not, however, known to WorkCover until well after Mr Azzopardi' s termination. The employer's jnstiffcation for the termination The tenor of the employer representatives' evidence was that Mr Azzopardi' s continuing absence was adversely impacting upon W orkCover' s operations. It was stated in the letter of termination that the position which Mr Azzopardi occupied was "essential to the effective commercial and service delivery obligations of WorkCover". Rehabilitation Counsellors help injured workers return to work as quickly as possible. This is important to WorkCover both in terms of reducing claims costs and client requirements. Each of the employer witnesses indicated that Mr Azzopardi was terminated solely because of his continued absence from work which had "created difficulties'' and his refusal to provide information in relation to his continued absence. It was denied that his termination was for any other reason. The employer witnesses particularly denied that any performance issue(s) had been taken into account in the decision to terminate Mr Azzopardi' s services. In my view, however, there are certain inconsistencies in the employer representatives' evidence. Mr Azzopardi' s position had been covered by casual Sessional Rehabilitation Counsellors for the entire duration of his absence(s). Further and most importantly - no steps were taken to replace Mr Azzopardi with a full-time person after his termination because of a review of all operational positions in the insurance operation where consideration was (and apparently still is) being given to combining the roles of Rehabilitation Counsellors and Claims Managers. If Mr Azzopardi's role was being performed by casual employees prior to his termination and by a casual employee subsequent to his termination it must be questioned why there was such an urgent need to terminate his services on 1 5 Ai:ril and why it was necessary to convey this fact to him by courier. It seems to me, upon consideration of the evidence, that senior management in WorkCover seized on the perceived opportunities presented once they viewed Mr Azzopardi' s letter of 23 March 1 998. Management decided that an unexpected opportunity to rid itself of a troublesome employee had arisen and it jumped at the opportunity to terminate Mr Azzopardi's employment on the basis of the alleged frustration of his contract of employment. The decision to recommend Mr Azzopardi' s termination on such ground was taken hy Mr Wilde. His evidence was that Mr Azzopardi's claims about his poor treatment had been thoroughly investigated and comprehensively examined and that "Mr Azzopardi and I think the files and the documentation confirm this - had over a period of time consumed a disproportionate amount of management time within WorkCover.". Mr Randolph indicated that he understood that Mr Azzopardi had been absent "without medical certification ur for any other reason that he advised WorkCover that »us acceptable". He indicated that he had agreed with Mr Wilde that Mr Azzopardi could be terminated "because of his absence from wurk." (p. 1 95 of transcript). Each of Mr Randolph and, to a lesser degree, Mr Wilde indicated that they were aware of alleged performance problems with Mr Azzopardi. Mr Randolph indicated that he had established from his discussions with other managers that performance problems existed (p. 222-223). He also indicated that he was aware that Mr Azzopardi had managed to remove some records about his work performance from his file. Not.withstanding this comment he stated that he could not recall ever having seen the file. It was not produced in evidence. Mr Randolph spoke extensively about the alleged performance problems identified hy the audits of Mr Azzopardi' s files and the fact that such issues were outstanding at the time of Mr Azzopardi' s termination. further, the history of the relationship between Mr Azzopardi and management over the previous fifteen months (January 1 997-April 1 998) had been one of apparent acrimony and constant challenge of management's actions by Mr Azzopardi through both internal and external avenues. However, each of Mr Randolph and Mr Wilde claimed that none of the above history had played any part in the decision to termmate Mr Azzopardi's employment. I think it is folly to suggest that the background was n ot in the minds of senior management when they decided to act to terminate Mr Azzopardi on the basis of the alleged frustration of his employment contract. I have rejected their evidence on this point. Mr Hunter, who represented WorkCover, informed me that Mr Azzopardi clearly knew that he had an obligation to notify WorkCover of the reasons for his absence and that he also knew that he needed to provide paperwork to support any absence. He argued that Mr Azzopardi' s letter of 23 March and his failure to satisfy his obligations to provide supporting paperwork - when Professor Y ellowlees' evidence showed that he was capable of doing so demonstrated that Mr Azzopardi had consciously decided that he was not going to return to work. ,\fr Ilunter went on to state that WorkCover was entitled "to tenninate Mr Azzopardi 's employment on the grounds of the frustration of his employment contract. That is, for the reasons of his non attendance.". I am not satisfied, in the circumstances of this case, either that Mr Azzopardi abandoned his employment or that his contract of employment was otherwise frustrated by his temporary absence from duty. I mention abandonment of employment because the employer' s evidence, and some of its submissions, seemed to suggest that that was the real reason for Mr Azzopardi' s termination - notwithstanding the actual reason provided in the letter of termination. Mr Hunter referred me to several cases involving frustration of employment and submitted that "the test lS whether or not further perfonnance of an employee's future obligations will be either impossible or radically different from those existing under the terms uf their employment.". I have considered each of those cases as well as a number of other cases on the doctrine of frustration. In Finch v Sayers arid Another ([ 1 976 ] 2 NSWLR 540) Wootten J referred to the decision in Marshall v Harland & Wolff LJd ([ 1 972] l WLR 899) in which Donaldson J, sittmg as President of the National Industrial Relations Court (U.K.), indicated that the question which the tribunal must ask itself, in the context of incapacity due to sickness, was:- ., 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 the further performance of his obligations in the future would either be impossible or would be a thing radically different from that undertaken by him ,.md agreed to be accepted by the employer under the agreed terms of his empluyment ?". ::ODMA\GRPWISE\QIRC-DOM.IRO-POLGENERALI :28863. 1 QGIG 2 1 /5/99 -- 3 of 5 -- 58 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [21 May, 1 99 9 I n S i mm o n s L i mi te d v Ha y (1 1 96 4 - 5 ] N SW R 4 1 6) r e f e re n c e w a s m a d e t o D a v is C o n t ra ct o rs Lt d v Fa r e ha m U r b a n D i s t ri c t C o u n c il ( ( 1 9 5 6] A C 6 9 6 ) w h e re L ord Radc lif fe (at p p 7 28-9) ob ser ved: - "So perhaps if would b e sim pler to sa y at the outset t ha t f ru s tratio n oc cu r s w h en e � e r t h e l aw r e c o g n i se s t hat w ith o u t de f ault of eit h e r par ty a c o n t ra c t u a l o b li ga t i on h a s b e co m e i n ca p ab i e of b e i n g p e if o nn. ed b e c a u s e t h e c i r cu ms ta n c e s i n wh i c h p e if o n na n c e i s c a ll e d fo r w o u l d r e nd e r lf a thin g radically differen tfr om that which w a s undataken b y the con t ract ." . In Fi/s ell v D ist rict C ouncil of Bar os sa (No. I. I/19 93 ) the Fu ll Indu str ial C om m i ss i on of S out h A u s tr ali a dismis s e d a n ap pe alby an em p l oyee ag ainst a fi n d i n g t h a t h i s d i smi s sa l c ou l d n o t b e ca t e g or i s e d as h ar s h , u nj u st or u nr e a s o n a b l e . I n th a t c as e th e r es p o n d e n t n o ti fi e d the e m p l oy e e t h a t h e h a d a c e rt a i n p e riod of time within whic h to res um e wor k or, c onse q uently, face dis m is s al . I n i ts d e c i s 10 n t he F u ll C o m mi ss i o n s t a t ed :- " . . . i f, aftn a rea sonable length of t im e, (a nd w h a t c o ns t it u t e s a r e a s o n a b l e p er i o d i s a l wa y s o n e o f f a c t a n d will de p e nd on th e given c ir cu ms ta n c e s ) , t h e e mp loy e e i s u na b l e t o r e s u m e h is n o r ma l w o r k , t h � e mp l o y e r i s e nt i t l ed , if h e s o d e s i r e s t o d i s m is s t h e e mp l o y e e b e c au s e of t h a t in ability to peif onn. his n orm al du tie s. ". H aving reg ard t o the evidence in th is case I do not be liew that i t c a n be said t h at Mr A zz o p ar di fru s t ra te d h i s e mp l o y me n t c on t ra c t . Mr Azz opardi ' s stress di sord er was capab le of being a ddresse d h ad all part i es b e en pr e p are d t o w o rk t o g e t h e r in a c o ll a b o r a t i v e m a nne r to a ddress_ t he v ar i ou s d i ffi cu l t ie s w h i c h e x i s t e d a nd w e re p e r c e i v e d t o e x i st . H a d t h i s h a p pe n e d M r A z z o p ar d i m a y w e ll h a v e b e e n a b l e t o r e tu rn t o w or k w 1 t h m a rel atively sh ort t imef rame and rec om men ce a si gnifi cant por tion of his n o rm al d ut i e s . Th e p ro b l e m w as t h a t \ V o rk C o v e r d i d n o t a g r e e t h a t a ny d i ffi cu lti e s e x i s t e d . Th er e i n l a y t h e di l e m m a . Mr A zzo p a r d i w a s n o t w i lli n g t o re t u rn t o w o rk u ntil his probl ems wit h ma nagement were addres sed. WorkCover re fus e d to a cce pt th at a n y prob l e m.5 e x i st e d. In consid ering w hether .\1 r Azzo pardi ab an don ed his empl oymen t I be liev e tha t on e m u s t l o o k be yo nd t he le n g th o f the abs en ce an d th e failure t o pr o d u c e su p po rt i n g ma t e r i a l _ t o th e r e a s o n s fo r t h e ab s en c e . I b e li e v e t h e e v i d e nc e e s t ab li s h e s s i m p l y t h a t Mr Az zo par di wishe d t o ensu r e fa i r tr e at m e nt f or h imsel f u pon a return to wor k. ]\othing in his let ter of 23 M arch 1 99 8 indi cat e d t he m t e n t10 n to pe r m a n en tl y a b a nd o n h i s e mp l o y m e n t . At the t i me of his t ermi nation Mr A zzopardi had b een s ufferin g a st ress d i s or der s ince t he mi d d l e o f Ma y 1 99 7 a n d he w a s , fo r a p er iod of time , und er th e t r e at m e n t o f a c o n su l t i n g p s y d i i a tr i s t. H e h a d o n ly w o r k e d fo r a b ou t fo ur w e e ks i n A u g u s t a n d o n e w e e k la t e i n S e p t e m be r i n t h e e n t i r e p e r i od fr o m l a t e May 1 997 to April 1 99 8 . So me thing was o bvioosly v e ry wro ng with him as th e ps y ch i a tr i c r epo rt s d i scl o s ed . H e w a s e xp e ri e nc i n g f e e li n g s o f h a r as s m e n t , v i ct i m i sa t i o n a n d i n ti m i d a t i o n b y h i s m a n a g e rs a n d - ba s ed o n Dr La r d e r ' s 2 1 Ju l y r e p o rt - a fe e li n g t h a t W orkC ov er h ad n ot treated h im we ll given its s u pposed " ethos of c onfli ct re s o l ut io n , s t r es s ma n a ge m en t a nd w o r kp l a ce r e hab z li ta t ro n" . Jt seems t o me that a number of Mr Azzop ardi' s healt h problems - and th e re a s ons for hi s l e n g th y a n dc on t in u i n g a b s e n c e - w e r e , to a con siderab l e degr ee. c o n t r i b u t ed t o b y m a n a g e m e n t ' .s ow n a c t i o n s a n d i t s i n se n s i t iv i t y t o h i s c o n d i ti o n . I t h i n k t h a t a s a n o rg a n i s a ti o n with above ave r a g e knowledg e o f t h e i s s u e s i n v o l v e d i n m an a g i n g e mp l o ye es w i t h s t re s s d i sor d e r s i t a c t e d p o orl y i n i t s e f fo rt s t o a ss i st M r A :, ,w p a r di i n h i s r e h a b i lita t i o n . I n p a rt i c u l ar , I r e fo r to: - • m a n ag e me n t' s d � c i s i o n i n A u g us t 1 9 9 7 t o r e fu s e t o i n v o l v e a me d i a t o r t o h e l p r e s ol v e t h e d i ff e re n c e s b e tw e e n M r A z z o pa rd i a n d s e n i o r manageme nt because m anag emen t belie ve d that no co nflict ex is t ed: manage me nt' s dec ision in l ate Augu st n ot to negotiat e a s u ita bl e r et u rn t o w or k pl a n (i . e . w or k l o a d ) a s r e q u e s t e d b y Dr L ar d e r; a n d the fa ilu re o f Wo rkCove r' s R ehab ilit ation Coordi na tor t o alert Mr R a n d o l p h b e fo r e h1 s m e e tin g w it h Mr A zz o p a r d i on 6 A u gust 1997, abou t w o rk p e rfo r m a nc e i s su e s , t h a t s u c h m e eti n g n e ed e d t o i n v o l v e M r A z z o p a r d i ' s o w n R e h a b ili ta t i o n Coo r di n a tor ( th is l ea ves as ide th e qu es t i o n o f whether it was wise f o r Mr Ran dol ph t o have spo ken to Mr Azzo p ar di a t a ll , gi ven i t w as h i s t h i r d d a y b a c k fr o m t w o m o n t h s o n s t re s s l e a v e ) . S i mi l a r cr i t i c i s m o f W or k C o v e r ' s a pp ro a c h t o M r A z zo p ar d i • s r e h a b il i t a ti o n w a s t a k e n b y Dr l . a r d e r in h is r e p ort t o W o rk C o v e r d a t e d 1 3 J u n e 1 9 9 8 ( s e e e x hibit 36). I conc ur with the vie ws wh ich he ex p resse d the rein, parti cul ar ly t ho se at pages 2 a n d 3 , a s fo llo w s : - '·At tac hment JO, paragr aph 2 , refer s to wha t T ca n only descr i be as a mos t e x t ra o rd ina r y a t t i tude by ma na g e me n t 'm e di a t i o n i s not con sider e d appropria te by mngt bec ause conflic t {d id/do es not exist. ' , w or ds pr inted b y Ma ry B e a k . Fr o m w h a t s o u rc e d id t hi s v i e w a ri s e 7 U w ou ld be ve ry us eful to seek s tatemen ts from N i k ki Mi l la r , Pa u l F o w l er a n d Ma ry B e a k a b o u t w he t h e r c on f li c t ha s a r i s en , the wa y zn wh z c h WorkCov er m a n a g e me n t h a d d e a lt w i t h a n y co n fl i c t [p r i o r t o m y a tr e mp t s t o r e h a b i l i ta t e ! , a n d t h e a s s i s ta n c e p ro v i d e d b y t h e w o rk e r ' s e mp l o y e r t o a d dr e s s th ese i.rnu.v [afte r I be came involved ]. J can only c onclud e th at Wo rkCover ha s chos e n to d isag re e }',i t h t he opin ion s I hav e e x p r e ss e d in m y r e p o r ts a nd c o mm u ni c at io ns wit h t h e m, whi c h of course is thei r right. It would thaefor e be ve ry u seful to re v i ew the op i nio n o f P r ofes s o r Ye ll o wl e e s w h o m I u nd e rs t a n d wa s re quested to p r� z d ,e a n i nd epe n d en t r ep o r t o n t h e se , nat te rs [ a r ep o r t I h a v e n o t s e e n / . If h e r ep o r ts t h e r e wa s c o n fl i c t t h e n lt c a n o n ly b e c o n cl u d e d t ha t ma n a ge me n t s m a n a ge me n t of t h e p r o ce s s of r e ha bi li tat i on w h i c h wa s a t t e mp t e d wa s u nr e a s o nab l e . In th ese mod em times of qu ali ty assur ance, continuo us quality im p rov e m e nt , a n d i n l i g h t o f Wo r kC o v er's m i s s i o n state me n t a nd atti tudes _t o rehabilitation zt would b e salutato ry ( si c ) I t h m k , t o ex ami n e t h i s w ork n 's ex p n i e n c e o f h i.\ in v o l v P m e n t wi t h th is e mploy n, quit e ap art f rom a n (s i c ) i s su e s t o d o wi t h h is m t i tl e m en l t o c o mp e n s a t i o n b e n e fi t s, fo cu s i n g o n h o w t h i s i nd iv i d u a l h u ma n r e s o u r ce wa .Y ma n a g e d b y t h e h u ma n r e so u r c e maruz gement sectio n o f this emp lo yer. ". I note that Dr Larde r obser ved during hi� evi dence t hat the reh ab ili ta tion a tt empt s by t h i s " r eh a b il i ta tio n- fo cu s se d e mp l o y e r . . w e r e • . • in my op ini o n, po or . " . A n d l a t e r: · 'It w o u ld b e m y p r ofe s si o na l p sy ch i a t ry op in i o n t h a t t h is e mp l oy er , be c a u se of t h e n a t u r e of t he s er v i c e s p ro vi de d , w o u ld b e m o r e edu ca ted a n d hope fu lly awa re a bout good reh abil itatio n p ractic es as a conse quence of th eir work, b eing i nsu ran c e. " . Finall y , I be liev e that Wo rkC over' s a ppr oach (at th e t ime ) t o work performa nce is s u es w as e x t r e m e l y poo r. W or k p e r f or m a nc � i s s ues w e r e pr oces s e d unde r th e dis cipli na ry po licy. This was wh a t Mr A z zop a r d i c o n fr o n te d v i rt u a ll y a s s o o n a s he r et u rn e d t o w or k a t t he b e g m n m g o t A u g u s t 1 997 when M r R a n d o l p h r a i s ed t h e r e su lt s o f t h e a u d i t o f M r A z zo p a r d i ' s fi l e s . T h e i n a p p r o pr i a t en es s o f t h a t ap pr o a c h i s r e fl e c t ed 1 n t h e fa c t t h a t W o rk C o v e r h a s s rn c e c h a n g e d t h e w a y t h a t i t d e a l s w i t h p e r fo r m a n c e i s su e s . : :O D M A \ G RP WT S E \Q I R C- D O M . T RO - P O l. G E NE RA Ll : 2 88 6 3 . 1 2 1 M a y , 1 9 9 9' Q U E E N S L AN D G O V ERNMEN T IN D US T R I AL G AZE T T E 5 9 An exa minat i on of Mr Ra ndolp h' s ev i den ce dis clo s es t ha t he was e x t r e m e l y ju dg e men t a l a b ou t Mr Az zop a r di and Mr Azzopardi ' s difficulties. Such attitude w�s , 1_n my c on sidered vie w , reflected m M r Azzo pa rd i ' s t r e a tme n t . Mr Ra nd o lp h, in my vie w, demonstrated little compassion for Mr Az:ropa rd1. s phght and _ exh1b 1ted httle flex 1b 1hty Ill h i s a p pr o ach to t h e i s su e s c o n f r o n ti ng him . The r e c o r d suggests that he, as well as other managers, a d o p t ed fa i rl y n g 1d p o s i t i o n s w h e n e v er M r A z z op ar d i w a s i n v o l v e d . It is app aren t to me, b ased upon my cons id eration of the whol e of t he e v id e n c e , t h at su c h ge n er alr ig idi ry in WorkCo ver 's app roach, whenever and wh er ever M r Azz(l)ar di w a s m v o ! v e d , w a s a l ea d i n g co n t r i b u t o r t o th e e mp l o y e r's de c i s i o n to tr e at the le tt e r of 23 March 1998 as evincing an intention n o t t o r e t u rn t o w or k . In my consi der ed vi ew th e emp lo yer was no t enti tled t o re a d t he l ett e r i n th ew a y t h a t it did ha v i ng r eg a rd to the whole histo ry o f the matter and , especiall y, to Its o wn le tter t o Mr A zzop ar di of 4 Ma rch 1 99 8. T h e l ett e r d i d no t s ugge s t t h at m a n ag e m e n t ha d an y g reat c oncern s abou t M r Azzopa rdi 's contm ued absen ce, s ave a�1 d except t hat 1t requ ested hi m to p rov i d e p ape r w or k t o s u pp o rt t he a b se n c e . Th e re was n othing to suggest that the person w ntrng the lett er had sp ecial con cerns abo ut t h e abse n c e a n d t he re w a s certa in ly n o w a rning tha t hi s p os iti o n wa s in j eopa rd y unles s h e eithe r pr o vided the mfo rmat ion sou ght or retu rned to w ork . The let ter enc l o se d a ccp y o f W o r k C o ve r' s cu l t u r a l a u dit. M r Azzo pa rd i wa s entitle d t o regard it s inclusion as a s i g n t h a t h e w a s s tJ !l b e m g r e g ar d e d a s a n or m a l e mp l o y e e - a l b e i t a n a b s en t o n e . Further , it seems t o me th at Mr Ra ndolph - wh o si gne d the let t er o f te r mi n a ti on - w a s rn a n u n i q u e p o s i tion to conside r the whole matte r i n contex t because h e h ad the ability t� access info rmati o n on M r A zz o p ar d i ' s pe r s o n ne l file as w e ll a s the a bilit y t o a cces s informatio n - throug h th e Claims M a n a g e r - o n M r A zz op a rd i s W or k Co v e r cl a i m s fi l e . Had he ch osen to m a ke e nqui ries of the Claim s Manager a s a repre s e n t a t i v e of "th e e m plo ye r " h e s h o u l d h a v e bee n abl e t o establis h tha t D r Larde r had m d1ca ted m Ju l y 1 9 97 t h at t h e t r ea t m e n t o f M r A z zo p ar d i ' s c o nd i t i o n w ou l d t a k e " s ix t o n i n e m o n t h s " . A t th e tim e o f terminatio n tha t nin e month s had n o t y e t p as s ed . Eve nts su bse quent to t he wri ting of the r e p ort should a lso hav e su gg est e d t o s o m e o n e in M r Ra n d olp h' s p os itio n tha t M r Azzop ard i di d no t appea r t o have mad :, the pro gress whi ch Dr Larde r ha d e,:-p_ec ted at t he ti m e t ha t t he r ep o r t wa s w r itt en . Ho w ev er , n o-on e s a w fi t t o mak e an y enquirie s abou t M r A z wp a rd t s c u rr e n t c o n d 1 t 10 11 fr o m e i th e r t h e C l a i m s M a n a g e r o r M r A zz op ar d i ' s Re ha bili t a t i o n Co or din a t o r be f o r e th e decisi o n t o t erminat e wa s taken . In t his regard WorkCover_ h ad failed, i n my v i ew, in its rol e as a c o n ce rn e d e m plo y er be ca u s e i ts in t e rn a l Reh abilitatio n Counsellor wh o ha d a rol e t o as si st e m p l o y e e s nr e s pe ct 1 v e o f w h e t h e r or n o t a W or k C o v e r cl a i m h a d b e en a c ce pt e d - ha d n o t s pok e n t o Mr Azzopar di sinc e mid- Octob er 1997 . An e xa mi na t ion of all o f the co rresp ondenc e that \.fr Azzop ar di w a s w r i ti ng t oWor k C ov e r , a n d oth e r s s u c h a s th e Minist e r rea d i n th e conte xt of D r L arder's Jul y_ I99 7 re port and the t wo rep rns from Pro fe ss or Y e l l o wl e e s s h o ul d ha v e a l e rte d b o t h th e Chi ef E x ecu t iv e Offic er an d Mr Randolp h tha t Mr Azw pa r d i w a s s ti ll n o t w e ll a n d t h a t h e c o n t m u e d t o h o l d g r i e v a nc e s a b ou t h i s t r e a tm e n t b y W or kCo v e r an d w as lookin g t o hav e suc h grievance s r es o l v e d . Th e l e tt e r o f 2 3 .\ far c h 1 9 9 8 w as a s i mp l e m a n i fe s tat i o n o f th i s fa c t. I t w a s s im pl y n o t g o o d e n ou gh fo r m a n a g e m e n t t o s a y ( y e t a g a i n ) " w e ' v e l oo k e d a t h is g r ie v a n c e s a n d t he r e 's no found ati on to the m " . Mana gement should -: at th e very le ast -:-. h ave ta k en the s te p o f w r i tin g t o Mr A zz o par d iw ar ning hi m abo ut t he possib le consequenc es if he fail ed t o pr o v i d e m e d i ca l c e rt 1 f1 ca t e s o r fa d ed t o o tt e r a r e t urn t o w or k d a t e o r fa i l e d to pr o v i de t h e m w i t h a n Em pl o y me nt Interru pti on Certificati on form . fo my �'iew th e employ er' s decision to w rite to Mr A z zopar d i o n 1 5 A pr i l 1 9 98a d v i sin g h i m t h a t it w a s terminati ng h is s ervic es becau se of t he allege d fru stra t 10 n o f th e c o n tr a c t o f e mp l o y m e n t a mou n t ed t o a t e rnu n a t i o n a t t h e i n s t i g a t i o n o f t h e e m pl o y e r. Nothing in Mr Az zopardi' s le tter s ugg ested that he w as not prepare d t o r e tu rn t o w o rk . Wh at he s a i d - a s he h ad be en sayi ng f or so me time - w as that h e contmu_ ed to h ave a gri evance wit h hi s_ emplo yer whi ch he wi s h e d t o a d dre s s . Su ch po s iti o n w a s co n s ist e n t wi th Mr Azzopar d i ' s illne ss a nd w a s s o m e th m g w h i c h h a d b e e n r e fl e ct e d lil h i s a t ti t u d e a n d b e h a v i ou r s m c e h e i n i t i a ll y w e n t o ff o n w or ker s ' c o mpen s a t i on on or arou nd 29 M a y I 9 9 7 . �n d �cid ing that Mr Az zop ardi' s lett e r did not su gges t that he wa s a b a ndo n i n g hi s e m pl oym e n tI ha ve dis co u n t ed t h e eviden ce of Profess o r Yellowle e s . d e d i d n o t h a v e a c c e s s t o M r A z zo p ar d i ' s h i s t or y o r a n y o f t h e oth e r c o rr e s po n de n ce w h i c h Mr A zz o p ar di h ad be en writin g. I n my vie w Mr O ' B rien wa s quite co rre (.t when he sug ge ste d th at W ork C o ve r w a s · 'o n e le tt e r s h or t" wh e n it wr ote to Mr Azzopa rdi o n 15 A ii 199 8 . My v1e_w 1s supported by the author' s _of " Employ men t F act B oo k " pr epa r ed byMa l l e s o n s Step h e n Ja c qu es , publish ed i n 1 9 9 1 by t he fen tre fo r Pr o fe s s i o n a l D e v e l o p m e n t ( sm c e d 1 s co n t m u e d ). O n th e s u bj e c t o f " A b a n d o n m e n t o f Em p l o y me n t" t h e a u t l10 r s st ate (at p ara 15 . 32 ) : - " ln the a bsen c: of a pro vis ion in the cont ract or appl icab le ind us tri a l a ',VC/. rd (if a n y) sp ec ify i n g th e p r e c is e circu ,mtan ces in wh ich abandonm ent of e mp lo y me n t wi ll b e d ee m ed t o h a v e o c cu r re d _ , a b a nd o n me n t z s s o m e w h a t d iffi c u l t t o e st a bl i s h . An emplo yee' s conduct ma y _ p rrN i de an emp loyer wit h gr ou nd s fo r be l iev i n g t h a t t h e e mp l oy e e in qu e st i on abandon ed her/ his employme n t . Nonet heless, condu_ct a lone wi ll usu al ly be i nsuffic i e n t to e sta bl is h a b a nd on m en t c on cl u s iv e l y in th e abs e nc e o ffur t he r evide nce establish ing t hat t h e emplo yee actually mten ds abando ning he rlh zs e mp l oymen t. W h e r e t h e e m plo ye r b e li e v e s t ha t a b a nd o n m en t may h av e oc curr ed, he/ Jhe m uJt th en es ta blish th at th e employe e no longer intends be ing b ound b y her /hi s c o n t ra c t o f e mp l o ym e n t . T hi s w ill n ece ssit a t e the emplo yer tak ing reasona b l e ste ps to ad vis e the emplo ye e that he/she mt mds t re a t i n g h e r/h is fa i l u re t o p r e s e n t fo r w o r k a s c o n s ti t u t ing an aba ndonm en t of employ m ent unle s s h e / s h e r e t u rns t o w o rk wi t h m a sp e c ifi � d p e r i o d of t ime . ". In all of the circ um sta� ces I have foun d t h a t t h e emplo yer ' s d e c i si o n t o t er mi n a te Mr Az z o p ar di o n the ba s i s of the alle ge d frustratio n of his employm e nt contr act o r be cau se ot the aban donment of h is emp l o y m e n t w a s n o t op e n t o it . It w a s a de c i s i o n t h a t was har sh, u nj us t or unreasona ble wit hin t h e m e am n g o f s . 2 2 0 o f t h e Wo rkp la c e R e la t io n s A c t 1 9 97 . R e m e d y A p art fr o m s o m e li m i t e d w o r k i n a b u s i n e s s ca ll e d " A zz a ' a G a r d e n o l og y " M r Az z o p ardi has n ot w o r k e d si n c e 6 Octo b e r 1 9 9 7 . AZ?a.' s Ga rden olog y w a s a bus iness e stablis h ed by Mr Azz op ar di, i n pa rtn e rs h i pw i t h hi s s o n , on 1 1 Ma r ch 1 9 98. Tiie busi nes s i nvo lves l awn mow i n g and gardem n g and has on ly a few chent s. . \1r A z zop a r di ' s mv o l v e m e n t i n t h e b u s i n e s s w a s s e en by him to be th e rape utic an d it has returned Jirm t e d h n a n c 1 a l r e w ar d , s u g ge s t ed t o b e o f t h e or d e r o f $ 5 0-- $ 10 0 pe r w e ek . : : OD M A \ G RP WISE\Q TR C- DO\.URO - POl . GENER ALl :28 8 63. IQ G IG 21/'i /9 9 -- 4 of 5 -- 60 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [21 May, 1999 TI1e evidence of Dr Lard er was that Mr Azzopardi's involvement in the gardening business would have been therapeutic for him and that it was quite possible for someone suffering a quite severe stress disorder in one environment to be able to wock quite adequately in ano1her. Based on his e vidence I do not believe that Mr Azzopardi's decision to involve himself in the gardening business can be viewed as evidence that Mr Azzopardi had decided to abandon bis employment with WorkCover nor could it be viewed as a new vocation for him. His involvement was simply 10 assist his son and 10 give him something else to focus his attention on other 1han his ongoing, and consuming, fight foc "justice" wi1h WorkCover's management. Mr Azzopardi indicated that he was not fit for work at the time of his termination OJ\ J 5 April l 998. He also mad e no applications for employment between October 1997 and the time of the trial. In the circumstances of this case Mr Azzopardi has been unable to mitigate his loss in any real sense because of the breakdown which he suffered at work because of his perc eived and, in my view, actual treatment by certain elements ofWorkCover's management. Mr Azzopardi has indica1e d a strong desire to re turn to work. In expressing s uch desire he has, however, place d a strong caveat to the effect that any such return would nee d to be accompanie d by "an assurance that I'd be treated equitably a11d with due process" (p. 267 and generally repeated at p . 318). Dr Larder made it clear in his evidence that the backgroun d conflicts in this matter were so serious and severe that 1he whole proc ess of mediation and resolution was beyond salvage (p. 149). He also indicated that the likelihood of a return to work program being successful was "very, very /mv'. (p. 167). Given the employer's attitude to da1e, wherein it has in dicated tha1 it does not believe that conflict between itself an d Mr Azzopardi exists, I do not believe that a successful return to work - with or without the involvement of a mediator - would be viable. It would, in my view, be doomed 10 almost certain failure. It would therefore be clearly inappropriate, within the meaning of s. 222 of the Act, for me to order Mr Azwpardi's reinstatement to the same or any other position at WorkCover. In the circumstance s I have decided that the only possible remedy is compensation. lo deciding wha1 is an appropriate amount of compensation I have considered the unusual features of this case, as follows. Firstly, Mr Azzopardi worke d for an employer whose raison d'etre is 10 assist injure d workers. lo such role ii would nOl be an unreasonable expecta1ion of the community that WorkCover would se1 an example in its dealings wi1h injured workers - whether the y be approved WorkCover claimants or otherwise. The evidence produced in this case suggests that WorkCover failed to demonstrate the necessary tolerance, consideration and understanding which one would expect from an organisation with its charter. It also failed to treat Mr Azzopardi, during his initial rehabilitation process, in a manner which one might reasonably expect of such an (apparently) enlightened employer. Mr Randolph's evidence (p. 205) that he decided (in his capacity as a Manager within WorkCover "the employer") not to reduce Mr Azzopardi's wotkload whilst he worked less hours and re-ceive d less money, because WorkCover "the insurer" had not approved the claim, demonstrates a rigidity in approach which I found most concerning. It should not have been a matter which required much lhought or consideration. Where Mr Azzopardi's psychiatrist requested a neg0tia1ed return to work plan (i.e. reduced wockload) one would have thought 1ha1 WockCover - in its role as a good e xample for other employers - would have acted on such request immediately without unnecessary consideration of the costs involved. lts failure 10 so act - coupled with various other events which were m()st unfortunate- arguably led Mr Azzopardi to have a funher breakdown. Dr Larder's criticisms of the employer's decision not to engagein me diation and not to reduce Mr Azzopardi's workload were, in my view, well founded. l11e decisions appear to have contributed to the fact that Mr Azzopardi has not worked from shortly after the employer's decision(s). Secondly, whilSt Mr Azzopardi has occupied himself to a limited degree in the gardening business at a return of somewhere between $50 and $100 per week (I have decided to average it at $60 per week over 1hc whole period since 15 April 1998) he has failed to fully mitigate his loss by not applying for any other positions which he would be qualified 10 fill. Thirdly, because of his su:ess disorder, and his consequential inability to work in certain roles for a significant portion of the past 12 monlhs, M( Azzopardi has suffered a "loss" for ouly part of such period. The period(s) when he was. or was nOI, fit to work has not been quantified. Fourthly, there are rather limited employment opponuni1ies for someone of Mr Azzopardi' s specific skills, qualifications and background. In such circumstances he will continue to experience an ongoing financial loss for a reasonably lengthy period of time until he finds suitable employment. After considering all of 1hese poioL5, and noting that the Commission possesses cenain discreuonary powers, I have decided -subject to the outcome uf the calculation below - 10 award Mr Azzopardi the maximum amount which I am able 10 award pursuant to s. 222(3) of the Workplace Relations Act ]997 viz. 6 months remuneration. This is to be paid at the rate which would otherwise have been payable to Mr Azzopardi in his role as a Rehabilitation Counsellor for WorkCov er for 30 hours pe r week under !he industrial instrument which covered his employment as at 15 April J 998. Jn deciding to award a maximum of six monlbs compensation I indicate that I have determined ;11cl1 amount based upon the following "formula'':- • 3 months in respeCI of past losses up to the time of the issuing of this decision; • 4 months in respecl of future losses being 1he minim um period which will expire from the date of this decision before l think Mr Azzopardi will find reasonable alternative employment; a deduction of $3,240 being a best estimate of Mr Azzopardi's share of any oet inc om e earne.d as a result of his involvemen l in Azza' s Gardenology (54 weeks a1 $60). lf the amount calculate d using the above '·formula'' is less 1han the equivalent of six months remuneration, at the rate referred to, such lesser amount is to be paid. If there is a dispute about lhe calcula1ion the Commission is to be informe d and it will decide the precise amoum to be paid after hearing from the parties. I make no adjuStment in respect of any earnings which Mr Azzopardi may have derived from his participation in weekend markets, n0ting that he was involved in such activity prior to his terrruna1io11. ::ODMA\GRPWISE\QIRC -DO:vt.JRO-PO J .GENERAL l :28863.1 21 May, I 999- QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 61 T d h�_ d co d mp f.e h nsa C lion aw��ded is to be_ paid to Mr _Azzopardi within twenty-two days of lhe date of release of lhis decision or such o1her date as may be ec1 e 1 t e omm1ss1on 1s required to determme the amount. ' '· Leave is reserved to lhe applican t in relation to costs. A h r · ny sue app 1ca1Jon may be activated by an approach, in writing, 101he Industrial Registrar. TileCommission de termines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Released: 1 1 May 1999 Appearance.,:- Mr P. O'Brien, of O'Brien and Associates, for Mr R. Azzopardi. Mr P. Hunter and Mr M. 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