Casey v Rakar Pty Ltd t/a Pialba Brake and Steering Pty Ltd [1995] QIRC 323 (1995) 149 QGIG 1177

11 76 QUE ENSLAND GOVERNMENT INDU STR IAL GAZETTE [ 18 Augu st, 1995 18 Augu st, 1995) QUEENSLAND GOVERNMENT IND US TRIAL GAZETTE 1177 ###################################################### # QUEENSLAND INDUSTR IAL RELATIONS COMMISSION Industrial Relations Act 1990 s. 295 - application for reinstatement P.S. Casey AND Rakar Pty. Ud T/A l'ial ba Brake and Steering P1 y. Ltd. (No. 8!36o/!995J COMM IS SION ER DE MPSEY 7 August 1995 Tennination of Em pl oyment - Rcinstatemen l and Loss of Wages Sought - Workers ' Compensation Sough t - Lengthy Yet Temporary Illness - Section 291(2)(b)(i) o f lndusrria/ Relatio11s Acr /990 - Dismissal Harsh, Unfair and Unjust - Compen sa ti on Awarded. DECISION The Applicant in this matter is Peter Shau n Casey he has been emp loyed al Rakar Pty Ltd trading as Pialba Brake and Steering since 18 M arc h 1991. This bus iness was purchased by Mr and Mrs Young in the name of Rakar and taken over on the 8 August 1994 . There was a statement in the App li can t 's schedule con taining the material facts on which his application is based tha t suggests that all staff e xce pt managemen t were st ill employed. the oth ers finished on the Friday afternoon 5 August 1994, with the old owner paying holiday pay. Then th ere is the statement that · 'we started back on the Monday under new management and tha t that new management was by law responsible for sick and long service leave.". There is no rea l evidence LO support or refute th is con ten ti on. TI1ere is also a sta teme nt c laimi ng that Mr Casey was a Foreman, th is is opposed qu ite vigorously by the employer. In any event there is clear evidence with respect lo the Applican t 's average weekly wage wh ic h is $436 .00. During the course o f the hea ri ng in Hervey B ay the App li cant 's argumen t is such that he was ill. he was off work as a result of his illness and is of the be l ief his employment shou ld not have bee n tcrn1inatcd. In this application he is seeking that he be reinstated and paid lost wages from the date of tennina tion of his emp loyment or that he be paid such amount of compensation the Commiss ion considers appropriate or any other or der the Comm iss ion considers appropriate. 16089_ 1. DOC -- 1 of 2 -- 1178 Q UE ENSLAND GOVERNMENT INDUSTR IAL GAZETTE I I8 August, 1995 The A pplicant further states in the ma terial facts that he be lieves he was terminated hecause he wanted to go on Workers ' Com pensati on and that the emp loyer said he could not get Workers ' Co mpensat ion for " th at type o f men ta l i ll ness,". On the other hand the Responden t claims its bus iness was affected as a resu lt o f Mr Casey':- absence . The employer claims to ha".: uk d to liil th e va canc y with cas uals and that these attempts "ere unsuccessful ma inly due to lht.: fact that prosp cc ti,·c emp loyees 1Vere look in g for a pennanent pos it io n. The e mp lo yer con tends that following a d iscuss ion with the Applicant he was of a view that Mr Cas.:y·s illn ess could last for 2 years. ( 'ondusmm: Mr Cas,:y' s illness was well kno"11 to his emplo)er Mr and Mrs Ynung. the effects and prohah le resu lts of this il lness would be well known to Mrs Young who in her evid ence revealed that she had a s imi lar prohlem and has fully recovered . Ohv iousl~· Mrs Young':; riro l'>lcrn was t emporary. The App lic an t Mr Casey did the best he could with hi s limi ted knowledge of how ma tt ers arc norma lly dealt with in p roceedi ngs such a~ these. In the main he argued tha t as he was genuinely ill he was of the view that he shou ld nol have been dismissed as the prov isio ns of s. 29 l(2)(bl( i) prevented his emp loyer from termi nat in g his emp loyment dur ing the per iod or his illness. (Mr Case) was a~sistcd by me in identi lying th.: provision of the Act referred to and seems to have had so me assisl.lmcc prior to these proeccd ings hy an Industrial Inspector). "29 1. ( I ) An emp loyer mu st not dismis~ an e mp loyee - (a) in contravemion of an order under section 302: or (h) unless there is a val id reason - (i J related to th e emp loree 's conduct. ca paci ty or pe rforma nce: or (ii) based on the opera tiona l requ irements of th e emp loye r 's undertak ing. estab lishmen t or service, (2) 1\ reason is not valid i i' -· (a ) having regard to th e emp loyee· s conduc t, capacity or performance and ihc operational requ irements. the d .ism issa l is harsh. unj ust or unreasonable: or (b) it is any o f the following reasons - ( i) !emporary absence from work hecause of illness or injury (o ther than an injur)' wi thin the meaning o f Division 6) :" . In this m<1lle r it wou ld be un"·i sc 10 consider the prov isions of s. 291( 2)(hJ(i) in iso la ti on g iven that other prescrip ti ons ca n be fo un d in s 291 ( 1). such as the e mployees co nduct ca paci ty nr perfonnancc and the ope rational requi reme nts of the emp loyer' s undertaking, establis hmc.nt or service. The prescripti ons of~ - 291(1) need to be cons i<lcred carefully as Piab la Brakes is a small bus iness or ente rprise and only emp loys 6 peopl e: two <' f these arc Mr and Mrs Young who perfom1 ma nagemen t and secretar ia l funct ion, respective ly. Tak i ng into cons ideration the size and nature o f this enterp ri se I am ~atis ficd ihat pro longed absences hy a ny ind ivi dua l places a s tr am on any bus iness that si',,e. None theless I cannot ignore the provis ions of s . 29 I (2)(b)(i). During these proceed ings 1 had the bene fi t of seeing Mr Young in the witness stand, his d emea nour le ft a lot to be desired . he was evasive when qu es ti ons were put to him by Mr Casey and i am mindful of Mr Casey's lack of ex perience in the process of cross exa minat ion. Mr Young was also evas ive in qu es tions pu t to him by myse lf and in my op inion he engaged in a play of words when it su ited his cause. I warned Mr Young of hi s actions to no avail. F urthermore I was not impressed with Mr Yo un g's inn uendo tha t Mr Casey ·s medical condit ion was related to his impend in g marriage as it appea re.d to me that he was suggesting Mr Casey was forced to ma rry his spouse. I am of the opinion th at Mr Y oung was dev ious in the man ner he testified wi th regards to this subj ect and I come to this co nclus io n atier considera ti on of the ev idence given by Mr Casey. In this regard I have noted that Mr Casey did not intend to give evidence but read il y volunteered when I advised him that his app li cat ion in this ma tter was accompa ni ed by a sworn s tatement and that Mr Kowalski who appeared for the Respondent should be given the opportunity to cross examine Mr Ca~cy's contentions. Mr Casey ag reed to take the witness stand and in my opinion a ppear ed to he ho nest and sincere. lie readily admitted to the p rob lems he had enco untered and accepted the emp loyer's concerns with respect to the length of his i ll ness although he denies having gi ven some ind ica ti on that il might be 2 )ears . From t he ev idence of Mr Young it is abundanUy clear that the reason for Mr Casey's tenn ination of employment was tha t he was iii and the empl oyer held the view that he was unaware ofjus1 how long this i ll ness would las t. As previous ly sta ted it would in my opinion be unwise lo intervene and overturn the emp loyer's decis ion on these factors alone al though I be lieve t hat in this matter such a course could he taken pursuant to the provisions of s. 291(2)(b)(i). However, th at particular prescription has to he we ighed aga in st the pres cr ip ti on found at s . 29 l(l) (b)( ii) which provides tha t there can b.: a va li d reason based on the operationa l requirements of the employer and in this matter I have given both eleme nts serious co nsidera ti on and I am pe rsuad<!d to my ultimate concl usion in part given the man ner and circumstances under which t he tcnn ination or employmen t took placs:. The Appl icant Wl!S ill and anyone with a reasonable mi nd wou ld conclude that to lcnn in ate the Appl ica nt' s emp loyment wou ld serve to exacer bate the ill ness given that it was a mental cond i ti on, then there was the non payme nt of entitlements i. e. publ ic holi da) payment and the standard tenn ination paymen ts (I accep t there may be som e argumen t i.e tennina tion pay). In this matter I have taken into consider at ion the pro visions of tl1c Tcnn in at ion o f Emp loyment Co nvention where the following is found in Part I. METHODS OF IMPLE ~1ENTATION. SCOPE AND DEFINITIONS Article I The provis ions of this Conventio n sha ll , in so far as thev arc not otherwise made effective hy means of collective agr~emcnts. arbi tration awards or co urt decisions or in such o the r m anne r as may be cons istent with na tional pract ice. be g iven effect by laws or reg ulation. Article 6 I. Temporary absence from work because o f illness or in jury shall no t cons ti tute a valid reason for term ination. 2. The definition of what co ns ti tu tes temporary absence from work, the extent lO which med ica l ce rtification shall be required and possi ble limitations to the app lications o f paragraph I of this Article sha ll be dc t ennine d in accordance wi th the methods of implementation refe rred to in Article I of th is convention. 16089_ 1.DOC 18 August, 1995] Q UE ENSLAND GOVERNMENT IND US TRIA L GAZETTE In th is matter the length of the Applicant' s illness was s uch that med ica l certification was necessary and was in fact supplied. f:.ach cert ificate has a spec ified period of time and is not open ended or for an indefini te period. Mr and Mrs Young are aware of t he temporary nature of the illness suffered by Mr Casey. In all of the circumstances and taking into consideration the provisions of the termination of emp loyment convention I am of the opinion tha t in this maner the illness of Mr Casey should be regarded as te mpora ry . Mr Casey has also contended that his illness was genera ted as a result of the att itude gene rally di sp layed by Mr Y oung and I am in forn1ed o f a pend ing Worker s· Compensation c laim. It is not my roll or function to det ern1inc whether such a claim is va li d. however. having s<aen Mr Young in the witnes s stand and the manner in wh ich he conduc ted h imsel f l can understa nd the Applicant's claim as Mr Young quite naturally ge nera tes an atmosphere of stress. Taki ng al l of the matters I have previously referred to into consideration I am of the view t hat the <l ism issa l of Mr Casey was harsh. unfair and unjust. My reasons fo r this finding are, the employer was awa re of the temporary nature ()f the i ll ness e ve n if the per iod was not specified, as the medical practitioners attend in g t0 Mr Casey see med to have some hope of recovery given the short periods for each of the med ica l certi fi ca tes provided, then there was the man ner in which the t enn inatio n was affected, just a simp le letter without conve rsing wi th the App licant to ob tain his views; then there was th e non payment of en ti tlement. I am also persuaded by the argument of Mr Kowalski that the employee/e mployer re lationsh ip has irretr ievably been broke n. in addition I am mindfu l of t he App li cant 's suggestion as to the cause of his i ll ness and there fore propose to di spose of this matter pursuant to the provisions or s. 297(2)(b) hy ordering th e employer to pay the Appl ica nt compensation. Taking into consideration ail of the circumstances includ in g the manner in whic h the e mployee was dism issed, the understanding that this employer s hou ld have lo the App licant 's illness ,md the length of the App li cant 's service which is approximately 3 years and 5 months. I ord er as com pensation that the Respondent pay the Applican t a sum of$4.500 .00 . I Order accordingly. Uated t hi s seven th da y of August, 1995. II. DEMPSEY. Commissioner. Appearances: • Mr P.S. Casey appeared 011 his own beh a lf. Mr ·1. Kowa lski for the Motor Trades Association of Q ueensland, Un ion of Em ployers appeared for the respondent. Ope rat ive da te: NIA Decis ion - Rt.'instatcmen l Released: 7 August 1995 1179 -- 2 of 2 --