100315799

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH

CLAIMANT

 -v-

 BURSWOOD RESORT (MANAGEMENT) LTD

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE THURSDAY, 12 DECEMBER 2002

CLAIM NO/S M 175 OF 2001

CITATION NO. 2003 WAIRC 07850

_______________________________________________________________________________ 

Representation

Claimant   Ms S Northcott of counsel

Respondent   Mr J Brits of counsel

_______________________________________________________________________________

Reasons for Decision

The Claim and Response

1         The Claimant is an organisation of employees registered under Division 4 of Part II of the Industrial Relations Act 1979.  The Respondent is and was at all material times a corporation carrying on business in Western Australia.  At all material times, Derek Mitchell was a member of the Claimant and an employee of the Respondent.

2         On or about 13 December 2000 the Respondent advised Mr Mitchell that his services would be terminated on 10 January 2001 unless a suitable alternative position could be found.  The Claimant took the matter to the Western Australian Industrial Relations Commission.  Attempts made at conciliation failed and Commissioner S Wood subsequently heard the matter in January 2001.  Commissioner Wood made the following orders:

1. THAT the respondent allocate forthwith duties to Mr Mitchell in the Environmental Services Area compatible with his capabilities and skills.

2. THAT the respondent engage in a full exploration, in consultation with Mr Mitchell, of options for his employment with the respondent, including any appropriate training relevant to available positions with the respondent, that are compatible with his capabilities and skills.

3. THAT in light of point 2 of the order, the respondent not terminate the employment of Mr Mitchell as an Environmental Services Attendant prior to 3 calendar months from the date of this order, for reasons to do with his inability for medical reasons to perform duties as an Environmental Services Attendant.

3         It is common ground that Mr Mitchell’s contract of employment was terminated on 23 March 2001.

4         The Claimant alleges that the termination contravened Commissioner Wood’s order and, therefore, seeks a finding that there has been a breach of the order.  It also seeks the imposition of a penalty for the breach.

5         The Respondent denies that the termination was in contravention of Commissioner Wood’s order.  It says that Mr Mitchell’s contract of employment was not terminated for reasons to do with his inability, for medical reasons, to perform his duties as an Environmental Services Attendant but rather because of his refusal to obey a lawful and reasonable instruction.

6         The Respondent also pleads a Deed of Release and Settlement entered into by Mr Mitchell on the one hand and the Respondent on the other on 10 May 2001 as a bar to the claim made by the Claimant.

Earlier Proceedings

7         When this matter first came on for hearing before my brother on 12 December 2001, the Respondent successfully argued that the Claimant did not have standing and was bound by the terms of the Deed of Release and Settlement executed by Mr Mitchell.

8         That decision was quashed by the Full Bench of the Western Australian Industrial Relations Commission in Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Burswood Resort (Management) Ltd 2002 WAIRC 05396.  In short, the Full Bench held that the Claimant had standing and was entitled to pursue its claim.  It follows, therefore, that the Respondent cannot now further rely on the Deed of Release and Settlement as being a bar to these proceedings.

Issue

9         Given the earlier proceedings, the remaining issue has become quite succinct.  It is one of whether Mr Mitchell’s contract of employment was terminated within the three calendar month period ordered by Commissioner Wood for reasons to do with his inability, for medical reasons, to perform duties as an Environmental Services Attendant or whether his contract of employment was terminated on the basis of his refusal to obey a lawful and reasonable instruction.

Onus and Standard of Proof

10     The Claimant bears the onus of proving, on the balance of probabilities, that the Respondent breached paragraph 3 of Commissioner Wood’s order issued on 14 February 2001.

Evidence

11     The Claimant called two witnesses.  They were Paul Justice, an organiser employed by the Claimant, and Mr Derek Mitchell.  The Respondent called one witness being its Human Resources Co-ordinator, namely Kathleen Drimatis.

12     It is fair to say that much of the evidence before me is not in contention.  I will now address the facts as I find them.

13     Mr Mitchell commenced working for the Respondent in about November 1994.  His duties essentially consisted of cleaning duties.  In 1995 Mr Mitchell sustained a work related knee injury.  The exact nature of the injury was not disclosed, however, it appears that the injury was sufficiently serious to warrant surgery in 1996 and a number of arthroscopic interventions thereafter.  Dr Tony Robinson has been Mr Mitchell’s treating orthopaedic surgeon throughout.

14     Dr Peter Connaughton has at the request of the Respondent, reviewed Mr Mitchell.  I do not know whether Dr Connaughton has any specialist qualifications.

15     Mr Mitchell testified that in the year 2000 he sustained another injury to the same knee.  More recently the Respondent sent him to Dr Connaughton for review.  Whilst in Dr Connaughton’s surgery he sustained an injury when carrying out movements as directed by Dr Connaughton.  He in fact sustained an injury as a result of squatting at the doctor’s direction.  The injury he sustained within Dr Connaughton’s rooms required further medical intervention from his treating specialist, Dr Robinson.

16     It is obvious from the evidence given by Mr Mitchell that the episode within Dr Connaughton’s surgery has left him with little confidence in Dr Connaughton.  He does, however, retain a great deal of respect for Dr Robinson.  Indeed Mr Mitchell quite understandably places a lot of faith in the advice given to him by Dr Robinson.

17     It was Dr Robinson’s advice to Mr Mitchell that he could only work on restricted duties that did not involve cleaning.  Mr Mitchell said that had Dr Robinson advised him that he was fit to carry out cleaning duties, he would have done them.

18     Mr Mitchell testified that leading up to the dispute he had been employed performing non-cleaning duties.  Those duties, however, were no longer made available to him.  He said that the duties once performed by him did not just disappear but rather were reallocated.  Ms Drimatis, on the other hand, testified that due to a restructure the work performed by Mr Mitchell was no longer available.  Commissioner Wood considered the matter with the result being that he made a finding that a termination of Mr Mitchell would at that time be unfair (see Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Burswood Resort (Management) Ltd 2001 WAIRC 01966).  It is clear from the learned Commissioner’s reasons (paragraphs 39 and 40) that he took the view that the exploration of options for Mr Mitchell should take some months, including appropriate training.  The inference to be drawn from such a finding is that Mr Mitchell would not be returning to his pre-accident duties.

19     Following the handing down of Commissioner Wood’s order the Respondent wrote to the Claimant concerning Mr Mitchell indicating that it was preparing a plan for the full exploration of the options for Mr Mitchell’s continued employment.

20     On 20 February 2001 the Respondent sent a facsimile request to both Dr Robinson and Dr Connaughton asking them to identify whether Mr Mitchell was able to perform certain Environmental Service Attendant duties as detailed in a list provided.  Dr Connaughton replied on 21 February 2001 pointing out, quite legitimately, that it was difficult for him to make an assessment given his lack of knowledge of the detailed activities.  He suggested the assistance of an ergonomic or occupational therapist.  Dr Robinson quite understandably did not reply.  Clearly a response was not achievable given the lack of information concerning the duties.

21     On 21 February 2001 the Respondent wrote to the Claimant advising that medical opinions were being sought concerning the duties identified as being compatible with Mr Mitchell’s capabilities.  Once such was to hand a decision would be made as to what duties to allocate for Mr Mitchell.

22     On or about 26 February 2001 the Respondent received an occupational therapist’s report from Work Focus Australia.  The report detailed the duties of an Environmental Services Attendant on the gaming floor at the casino and then made certain conclusions (the basis of which is unexplained) that certain physical activities attract occasional, frequent or constant demands.  The writer of the report, Kirrily Manning concluded that the position was evaluated to be of a medium physical demand level.

23     On 1 March 2001 Dr Connaughton sent a facsimile message to the Respondent saying that he agreed with Ms Manning’s letter dated the same day.  What was within the letter remains a mystery because it was never exhibited.

24     On 6 March 2001 Ms Manning sent a letter to the Respondent enclosing a report dated 1 March 2001 arising out of her assessment of the duties of an Environmental Services Attendant who would be required to work at the Burswood Dome, the Convention Centre and the outside/ staff areas of the Burswood International Resort Casino.  In her letter Ms Manning said:

“Our recommendation remains that given medical opinion suggests Mr Mitchell will be unable to resume the full components of his pre-injury job, and no real position is available consisting of modified duties, vocational redirection should be commenced as soon as possible.”

25     On 6 March 2001 the Respondent wrote to Dr Connaughton seeking his views concerning certain duties identified as suitable (subject to qualification) for Mr Mitchell to perform as identified in Ms Manning’s report dated 1 March 2001.

26     That same day the Respondent wrote to Dr Robinson seeking his views as to the duties identified by Ms Manning and Dr Connaughton as being suitable.  In its letter the Respondent asserted that Mr Mitchell played golf for four and a half hours twice weekly.  The letter sought a response by 10.00 am the next day.

27     On 7 March 2001 Dr Connaughton sent a facsimile to the Respondent in which he stated:

“Thank you for your fax of 6 March 2000.  I note the Job Analysis Reports for the Burswood Dome, Convention Centre and Outside/Staff Areas.

I note the letter from Kirrily Manning, dated 6 March 2001, and I confirm that I agree with the recommendations and advice in that letter.  In my view the duties suggested are appropriate.  The duration of the standing and walking components of the jobs would need to be considered so that they are within Mr Mitchell’s capability.”

28     Dr Connaughton’s conclusion, in my view, appears to be somewhat inconsistent with Ms Manning’s recommendation to which I have referred earlier.

29     It seems from the documentary evidence before me that when on 13 March 2001 the Respondent wrote to Mr Mitchell, a response had not yet been received from Dr Robinson.  In its letter dated 13 March 2001 the Respondent said, inter alia:

“Given there has been no response from your Doctor within a reasonable time period it is our intention to now act on the available views from our doctor and the Workfocus Occupational Therapist that those duties are suitable for you to perform.

We now direct that you report to Michael Carton for duty on Wednesday 14 March 2001 at 9:00am at which time you will be directed to perform the duties previously identified.

If you fail to report for duty without good reason or fail to perform the duties as directed without good reason, we shall immediately cease paying your wages and appropriate disciplinary action will be taken.  Such disciplinary action may include the termination of your employment contract.

You must understand that your doctor not endorsing you performing those duties will not be an acceptable reason for you to not attend work or perform the duties as directed.”(My emphasis added).

30     The Claimant was sent a copy of the letter sent to Mr Mitchell.  It responded immediately pointing out that it was appropriate for the Respondent to await Mr Mitchell’s treating doctor’s report before any further action was taken.  The Claimant pointed out that it would be most unwise for the Respondent to direct Mr Mitchell to perform duties, which he had previously been declared unfit to perform.  It was indicated that Mr Justice would attend with Mr Mitchell at 9.00 am the following morning.

31     What transpired at the meeting is well reflected in the letter written by Mr Justice on behalf of the Claimant to the Respondent dated 14 March 2001.  I set out the relevant portions of the letter:

“At the meeting Michael Carton directed Mr Mitchell to perform certain cleaning duties.  Mr Mitchell indicated he was unable to perform the duties pending advice from Dr Robinson.  Mr Carton stated that if Derek did not do the duties he would have his wages stopped and disciplinary action could be taken.  I asked that the Disputes Procedure be used.  Accordingly I asked that a meeting take place between yourself, as Human Resources Manager and senior Union officials before any further action is taken by Burswood.  Mr Alison refused this request.

I again requested that a meeting between yourself and senior Union officials be organised before any further action is taken by Burswood.  No further action is justified pending advice from Dr Robinson.  Finally, I request a written explanation of the actions Burswood intends to proceed with from today’s meeting.”

32     On 14 March 2001 the Respondent received by facsimile a letter addressed to it from Dr Robinson dated 8 March 2001.  It is quite apparent from the facsimile transaction record that the same was received after the meeting.

33     I set out the text of the letter:

“Dear Mr. Allison,

Re:  Derek Mitchell.  DOB: 20/1/1942

Thank you for your letter dated March 6, 2001, regarding Derek Mitchell.  As the treating orthopaedic surgeon, I do not think the duties which you have outlined in the job analysis report are suitable for Mr. Mitchell.

I am at a loss to explain why the abovementioned duties have been deemed as being ‘occasional’ (0-33%), ‘frequent’ (34-66%), and finally ‘constant’ (67-100%).  I find these quantifications very difficult to apprehend when someone is describing work duties.

Thus, I would recommend that the patient continues with his present form of work which I have repeated on a number of occasions.  As the treating orthopaedic surgeon, I feel that I am in the best position to decide.

Finally, with regard to Mr. Mitchell playing golf for four and a half hours twice a week.  I have no knowledge of this.  Furthermore, I would suggest that you contact Mr Mitchell as (sic) discuss that point with him.

Yours faithfully,

Tony Robinson, M.B., B.S.,F.R.A.C.S.

Consultant Orthopaedic and Knee Surgeon.

P.S.    I find that a letter being dated March 6, 2001, and an expected reply by 10:00 a.m. the following day to be very difficult to comprehend.”

34     It appears from the relevant documentary material before me that a copy of Dr Robinson’s report was sent to Dr Connaughton for his comments immediately upon receipt.  I say that because at 2.30 pm that afternoon a facsimile message was received by the Respondent from Dr Connaughton in which he reaffirmed his previous advice.

35     A meeting was organised for the following day in order to resolve the dispute.  The meeting was held but the dispute did not resolve.  At that meeting, which was attended by Mr Mitchell and the Claimant’s representative, Mr Mitchell was directed to attend work at 9.00 am on 16 March 2001 to undertake the duties of an Environmental Services Attendant with some modifications.

36     In response, Sharryn Jackson wrote to the Respondent on behalf of the Claimant.  In her undated letter she stated, inter alia:

“Despite this advice, at the meeting Alison and Carton again directed Derek to attend for work tomorrow morning to perform the said duties.  They further threatened that if Derek did not attend and perform the duties his wages would be stopped immediately and steps would be taken to commence the termination of his employment.

Derek has previously advised the company (including these particular representatives) that he is unable to perform the duties specified.  Further he believes that to perform these duties as directed would place him at serious and imminent risk of injury.  Derek has repeatedly stated that he desires to return to work immediately and that he is ready and willing to perform duties of which he is capable and which do not place him at risk.

This is a fair and reasonable position, particularly given: -

1.  It is consistent with the advice of his treating Specialist; and,

2.  his Specialist has provided consistent advice on this matter to the company; and,

3.  your Dr Connaughton gave similar advice to the company late last year when he said that Derek could not perform the duties of an Environmental Services Attendant; and,

4.  Alison and Carton admit that their direction concerning Derek’s capabilities is based upon ‘expert advice’ from an unidentified Occupational Therapist (who has not even met Derek) and a recently acquired ‘different opinion’ from your Dr Connaughton; and,

5.  Derek has not performed the duties of an Environmental Services Attendant since his injury at your workplace in June, 1995.  Indeed on the basis of appropriate medical advice he has performed a range of alternative and modified duties.

In all of the circumstances, particularly the immediate threat to Derek’s earnings, we believe the company’s actions are harsh and oppressive.  This letter should serve to notify you formally of the existence of a dispute.

In accordance with Dispute Resolution Procedure (Clause 39 of the Industrial Agreement) I request that the company forthwith find alternative duties to those proposed for Derek to perform and to continue to pay Derek’s his (sic) wages.

It is appropriate for a meeting to be arranged with you as the Human Resources Manager for further discussion of this matter.  Please contact me or Dave Kelly at the Union Office to arrange a mutually convenient time.

Yours faithfully,”

37     On 19 March 2001 Mr Mitchell and Mr Justice attended another meeting concerning the dispute.  Mr Carton and Ms Drimatis attended that meeting on behalf of the Respondent.  The notes of the meeting contained in exhibit 7 reflect what occurred at that meeting.  It suffices to say for my purposes that Mr Mitchell was advised that if he did not perform the cleaning duties identified by the Respondent as being within his capabilities he would be subject to disciplinary procedures which might include termination.

38     The following day another meeting was held.  The same people as the previous day constituted this meeting.  Various issues were discussed during the course of the meeting.  During the meeting Mr Mitchell made it clear that he would not perform the allocated duties because if he did so it would be in contravention of his treating doctor’s advice.  He also reaffirmed the view that he felt he could not carry out the tasks that he was required to perform which were essentially cleaning tasks.  That was in keeping with his doctor’s advice.  Mr Mitchell was warned that his continued refusal to perform duties would likely result in his termination.

39     On 23 March 2001 Mr Mitchell received a letter of termination.  In that letter the Respondent advised Mr Mitchell, inter alia, that:

“… due to your continued and willful (sic) refusal to obey a lawful and reasonable instruction, I am terminating your employment contract with five weeks’ payment in lieu of notice and the termination has immediate effect.  …”

40     On 10 May 2001 Mr Mitchell and the Respondent entered into a Deed of Release and Settlement with respect to all claims that Mr Mitchell had against the Respondent.  Mr Mitchell was paid an undisclosed sum in consideration of his entering into the Deed.

41     During the course of his testimony Mr Mitchell continued to reaffirm that the direction given to him by the Respondent was against the advice given to him by his treating doctor.  In those circumstances ho could not comply with the requirement imposed by the Respondent because it potentially exposed him to risk of further injury.

42     Ms Drimatis testified that the Respondent believed it was entitled to invoke the requirement it made upon Mr Mitchell given the medical evidence obtained from Dr Connaughton.  Accordingly, the refusal by Mr Mitchell to perform those duties left it with no option other than to terminate his contact of employment.

Conclusions

43     There is no dispute that Mr Mitchell’s contract of employment was terminated within the three calendar month period referred to by Commissioner Wood in paragraph 3 of his order made on 14 February 2001.  The question remains one of whether he was terminated by reason of his inability, due to medical reasons, to perform his duties as an Environmental Services Attendant.

44     Having reviewed the evidence, it is readily apparent to me that Mr Mitchell was terminated because of his inability, due to medical reasons, to perform his duties as an Environmental Services Attendant.

45     His refusal to carry out the duties that he was instructed to perform resulted from the medical advice that he had received from his treating specialist.  His refusal to comply with the Respondent’s direction related back to his medical disability, a fact well known by the Respondent.  Mr Mitchell was quite entitled to rely on his treating doctor’s advice.  After all, his treating doctor was the medical professional in the best position to know about Mr Mitchell’s injury.  He had treated Mr Mitchell for a long time.  He had reason to perform surgery on his knee.  He had first hand experience at looking into Mr Mitchell’s knee.  As Dr Robinson said,

“I feel that I am in the best position to decide” (see exhibit 6).

46     Dr Robinson’s view, which was consistent with Mr Mitchell’s own view, was that Mr Mitchell could not perform the duties that he was required to perform by the Respondent.  Indeed at that time Mr Mitchell relied on the services of a cleaner in order to perform cleaning at his own residence.  In those circumstances, it was self evident to him that he could not perform the tasks that the Respondent wanted him to perform.

47     The Respondent totally disregarded the advice of Mr Mitchell’s treating doctor at its own peril.  It merely accepted the advice of Dr Connaughton, who had reviewed Mr Mitchell on several occasions.  Notwithstanding the conflict in the medical evidence it did not seek to have Mr Mitchell further reviewed by another orthopaedic surgeon.  It could have done other thing such taking the matter back before the Commission in a compulsory conference.  However it chose not to, knowing that, as matters stood Mr Mitchell would not accede to its requirement of him.

48     It is quite apparent that the Respondent set Mr Mitchell up to fail.  It was well aware of the stance taken by Mr Mitchell, which in my view was quite justifiable, particularly given his experience of suffering further injury when directed by Dr Connaughton to squat.  It is not surprising, therefore, that he was reluctant to accept the advice given by Dr Connaughton and relied on the advice of Dr Robinson.  That was well known to the Respondent.  It knew through its officers that Mr Mitchell could not realistically comply with its direction.  To do so was to expose him to further risk of injury.  His failure to comply with the Respondent’s direction, therefore, had nothing to do with his wilful disobedience of the Respondent’s direction and all to do with his medical inability to perform the duties that he had been instructed to perform.  It was entirely referable back to that.

49     The whole process adopted by the Respondent in this matter not only clearly breaches the letter of Commissioner Wood’s order, but is also against the spirit of his finding in which he recommended, inter alia, skills training to enable Mr Mitchell to remain gainfully employed with the Respondent.  Further the whole process adopted by the respondent is against the recommendation made by the Occupational Therapist it engaged with respect to this matter.  It will be remembered that Ms Manning recommended,

“…vocational redirection should be commenced as soon as possible”.

50     It appears that the Respondent was not concerned with vocational redirection.  It set about embarking upon a process, which it knew Mr Mitchell would not (and in reality could not) comply with.  It thereby ostensibly set up the basis for termination on grounds by reason of Mr Mitchell’s “refusal to obey a lawful and reasonable instruction”.

51     In the circumstances, although the instruction may have been lawful, it was clearly not reasonable.  It was not reasonable because the Respondent knew full well that Mr Mitchell could not and would not agree to the instruction on account of medical grounds.  Accordingly, the termination, in reality, occurred by reason of Mr Mitchell’s inability, for medical reasons, to perform duties as an Environmental Services Attendant.  The termination having occurred within three calendar months of Commissioner Wood’s order, there has been a clear breach of the same.  I take the view that the breach is a flagrant breach of the order.

52     I accordingly find that the claim has been made out.

53     I will now hear the parties with respect to the orders to be made in consequence of my findings.

G Cicchini

Industrial Magistrate