100104014

TERMINATION OF EMPLOYMENT

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

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

APPLICANT

 -v-

 BURSWOOD RESORT (MANAGEMENT) LTD

RESPONDENT

CORAM COMMISSIONER S WOOD

DELIVERED FRIDAY, 2 FEBRUARY 2001

FILE NO CR 350 OF 2000

CITATION NO. 2001 WAIRC 01966

_______________________________________________________________________________

Result Finding that termination at this time would be unfair

Representation

Applicant Mr J Rosales-Castaneda, of Counsel

Respondent Mr D Jones

_______________________________________________________________________________

Reasons for Decision

1          This is an application made pursuant to section 44 of the Industrial Relations Act, 1979 (the Act).  The matter came on for conference on 21 December 2000 and the dispute not having been resolved in conciliation was referred for hearing and determination.

2          The terms of the memorandum of matters for hearing and determination are:

“The respondent has made a decision to terminate the employment of Derek Mitchell on 3 January 2001 unless an alternate position is found.  The respondent has now given an undertaking not to effect any termination of employment prior to the hearing of the matter on 15 January 2001.  The applicant claims in all the circumstances that any termination would be unfair.  The applicant seeks an order preventing a termination taking place.

The respondent opposes the claims”.

3          The application relates to Mr Derek Keith Mitchell who was a union delegate at the Burswood Resort, and is in fact president of the Burswood Resort Union of Employees (BRUE), ie the section of the applicant union which represents members employed by the respondent.  The union alleges that at a meeting on 13 December 2000, Mr Mitchell was advised by the company that his services would be terminated on 10 January 2001 unless he could find an alternate suitable position prior to that date.  Mr Mitchell had applied for leave over the Christmas period and on advice from the union requested that this leave be cancelled.  The union says that upon this request the company cancelled the leave but, according to the union’s claim, brought forward the date for termination to 3 January 2001.

4          The respondent agrees with the dates but says that no decision to terminate Mr Mitchell has been taken.  They say that there was to be a meeting on 10 January 2001, the date later revised to 3 January 2001, to review Mr Mitchell’s employment situation in light of whether alternative positions had been found.  They say the application and Commission proceedings intervened in this process.

5          It is common ground that Mr Mitchell was employed as an Environmental Services Attendant in late 1994.  He was first employed as a casual and then on a permanent basis.  His duties were general cleaning duties in the casino area.  In June of 1995 he suffered an accident, injured his knee and was consequently off work for a period.  On return to work he was placed on alternative duties as part of the rehabilitation program.  It is common ground that Mr Mitchell has not been able to perform fully as an Environmental Services Attendant doing cleaning duties since that time.  This is not to say that Mr Mitchell has not performed some cleaning duties at times.  Mr Mitchell suffered a further injury on 22 May 2000 and a recurrence of that second injury in November 2000.

6          Following the conference of 21 December 2000 the respondent agreed to continue the employment of Mr Mitchell until the conclusion of hearing on 16 January 2001.  As that matter had to be adjourned part heard, the respondent agreed on subsequent occasions to continue the employment of Mr Mitchell until 2 February 2001, ie the date of this decision.

7          The union claims that the termination of Mr Mitchell would be unfair, harsh or oppressive as

1. the action of the company is taken substantially because Mr Mitchell is president of BRUE and is being discriminated against;
2. a decision to terminate Mr Mitchell would be contrary to the Workers Compensation Act, as the injury suffered by Mr Mitchell in May 2000 is a new injury and the employer is not entitled pursuant to s.84AA of that Act to terminate Mr Mitchell within 12 months from the date of injury;
3. the termination of Mr Mitchell would be contrary to s.41 of the Minimum Conditions of Employment Act as the union was not consulted during the process of gathering all the information necessary to decide on the termination of Mr Mitchell;
4. the termination would be contrary to clause 34 of the Burswood International Resort Casino Employees Industrial Agreement 2000 in that the union was not notified of the intended dismissal of the union delegate; and
5. the process and planning for the termination of Mr Mitchell was flawed in that it was not shared with him, he was not trained to apply for other positions nor did the company seek to find him an alternative position and other factors.

8          The respondent’s claims that the union’s case substantially relies on alleged discrimination of Mr Mitchell due to his union involvement.  The company disputes this and claims that Mr Mitchell’s contracted position of Environmental Services Attendant never changed from the date of his engagement until now.  At all times post his injury in June 1995 he was on alternative duties to encourage him back into suitable employment.  The respondent says that none of these duties were permanent.  The Respondent says that due to the arrival of a new CEO, and constraints on budget, the managers were required to review their operations.  In doing so Mr Michael Carton, the Manager Environmental Services requested the return of Mr Mitchell to his department in July 1999 and subsequently made changes to his operations which impacted on Mr Mitchell’s duties.  The respondent says that following advice in November/ December 2000 confirming that Mr Mitchell could not again perform the role of an Environmental Services Attendant, and given the absence of full time duties for Mr Mitchell, Mr Mitchell was advised on 13 December 2000 that his services would be reviewed and may be terminated unless he found an alternate position, either internally or externally, prior to that date.  The respondent says that no final decision to terminate Mr Mitchell has been taken, that a review of Mr Mitchell’s situation was to occur on 3 January 2001 and that the union will be advised when the decision to terminate is taken.

9          Mr David Kelly, Assistant Secretary, Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch gave evidence regarding the history of relations between the company and the union.  Without reciting the evidence in detail it goes to various actions by the company to prevent representation or coverage by the union of workers at Burswood Resort Casino.  The union outlined in exhibits through Mr Kelly various decisions of the Commission and agreements reflecting the history between the parties.  Specifically Mr Kelly referred to a dispute between the parties over the number and location of delegates under the Enterprise Agreement to which they are both parties.  This matter came on before myself in conference and subsequently the parties settled the issues prior to hearing.  They agreed to 12 delegates.  These delegates were recognised in August 2000 by the company including an agreement on which work areas they were to come from.  Mr Kelly complained that the company did things to the letter of the law and in his view extended the letter of the law.  He complained that the company treated employees differently in terms of representation for those under the Enterprise Agreement, as opposed to those under Australian workplace agreements, and that employees were often only allowed a support person rather than a representative when problems arose.

10       Mr Kelly says that Mr Mitchell was known to be the President of BRUE since the second half of 1999 and was an active representative of the union in the Environmental Services Area and helped members generally.  Mr Kelly says that Mr Mitchell told him of the meeting of 13 December 2000 and advised him that the company had said that they would terminate his employment if he had not found another position by 10 January 2001.  This was changed to 3 January 2001.  He says the company has not advised the union of this meeting and referenced clause 34(3) of the enterprise agreement whereby the company must advise the union where there is to be dismissal of the delegate.  He says this clause is because there was always a feeling that a delegate might be sacked because they are a delegate.  He says that Mr Paul Justice of the union wrote to the company seeking clarification following the meeting of 13 December 2000 and received a reply saying that Mr Mitchell was advised of all matters at the meeting.  Mr Kelly further complained that at the meeting of 8 January 2001, which was to execute mutual discovery, Mr Carton who was Mr Mitchell’s Manager in Environmental Services advised that there was no documentation regarding the restructure of Environmental Services.  Under cross-examination Mr Kelly agreed that the company conformed with the wording of the agreements and had done nothing illegal but indicated that he believed the company’s strategy was to limit the effectiveness of delegates and had concluded that the Australian workplace agreements were there to exclude union rights.

11       Ms Janine Freeman, an advocate for the union in the workers compensation jurisdiction gave evidence that she had been dealing with Mr Mitchell’s workers compensation claim.  She said he has two claims, one for the original injury on 1 June 1995 and the second injury on 22 May 2000.  Both of these injuries have been covered by the insurer.  She says that Mr Mitchell has had four surgical procedures on his knee and has taken time off with each procedure.  She made reference to a post-it note on a workers compensation form which says “29/11/99 Rod, Derek was/is involved in current Industrial issues, and there was a strike on Friday 26/11 Started at 0900-1600 Co-incidental!!!! PTO”.  She said she considered this to be the writing of Ann Alexander, the Manager of Occupational, Health and Safety at the Casino.  She says that Mr Mitchell was ordered to attend the medical with Dr Connaughton and during this medical further injured his knee performing a squat test.  Under cross-examination she gave evidence that she considered that if Mr Mitchell was supernumery then he should get workers compensation payments. 

12       Mr Mitchell gave evidence that he first injured his knee in an accident on night shift in June 1995 when he was taking out rubbish.  Since that time he has done a variety of duties including assisting the Training Officer Andrew Lindsey.  He had hoped that job would develop into something more.  He says he was asked by Ann Alexander and Margaret Russell, Manager of Environmental Services to assist in the Purchasing Office in November 1998 and was advised that there was a job coming up permanently in that area and if he went to work there and if he was capable, he had a good chance of getting it.  He says his duties were to relieve the purchasing officers of more mundane duties in purchasing.  He says in May 1999 he became a member of the union and at that stage was working in the Purchasing Office.  He was told confidentially by Jeff Carter the second in charge of the Purchasing Office in July 1999 that Jeanette Anderson, the Manager, Purchasing, had told Mr Carter that she had been instructed by Derek John, who had advice from Paul Kennedy, the Human Resources Manager, that they wanted Mr Mitchell out of the office as he was with the union.  He says he did not advise anyone of this as the information was given to him in confidence.  He says that two days later Mike Carton called him to his office.  Pam Donald, the Rehabilitation Co-Ordinator was there and he was asked to go back to Environmental Services to assist the Supervisor, Syd Capper.  He says he did not want to go back to Environmental Services as it was a made up position and he had a good chance of getting a full time position in the Purchasing Office.  He says he accepted the position in Environmental Services because it would be a full time permanent position and because of Mr Carter’s comments.  He says his duties on return to Environmental Services were minor repairs, stocktaking orders and general duties as requested.  He says he was not given a list of duties.

13       Mr Mitchell says that Mr Syd Capper changed jobs and went to assist on the supervisors rotation.  At this time Mr Mitchell says that he was doing most of Mr Capper’s work except for certain supervisory duties in the car park and the budgeting.  He said he asked for higher wages in this role but his request was rejected.  On 22 May 2000 Mr Mitchell says he had another accident in the operations area and he took four weeks off as a result.  On his return to work he says some duties were removed from him and were never returned.

14       He says that in September 2000, Pam Donald asked if he objected to speaking to Workfocus to assess his work capacities.  He says he was concerned by the request and queried why he would need to provide a resume.  He says he also raised this query with Mr Carton and was advised it would be in his best interest to go.  He says he was also advised by the union to go.  He says he also raised his concerns about matters arising from the Workfocus assessment with Ann Alexander and she confirmed for him that he had nothing to worry about.  He says on 7 November 2000 he went to see Dr Connaughton, the medical practitioner for the insurance company and during that assessment he damaged his knee during a squat test.  He later saw Dr Tony Robinson and says that he was advised by Dr Robinson that he could go back to work for four hours a day.

15       On 12 December 2000 Mr Mitchell says that Mr Carton contacted him and told him to be at work at 8am the next day.  This was later than his normal starting time.  He says he attended a meeting with Mr Carton, Ms Clare Ryan, the Human Resources Officer and Ms Pam Donald.  He found out just before the meeting who was attending and arranged for Mr Stuart Smith to come as his witness.  At that meeting he says he was told that he needed to find another position within a month as due to medical advice he could not again work as an Environmental Services Attendant and if he did not find a position within that time he would be terminated.  He says that two positions were offered to him at the meeting, neither of which were suitable.  Mr Mitchell says that the company knew for some years that he could not return to his duties as Environmental Services Attendant and that he was not provided with training even though this was promised.  He agrees that job notices were sent to him whilst he was being paid, but not at work, at the company’s request.  He further complains that on 23 December 2000 whilst in the queue in the Canteen he was told by Ms Ryan that he was not allowed to be there.  He says this was preceded by an incident on 5 December 2000 when Mr Carton told him that he was not allowed to be in the Canteen.  Under cross-examination Mr Mitchell agreed that he had always been paid the same rate of pay and had not received a new badge since his initial badge on first engagement.  He says that the person who took over from him in purchasing was on light duties and was promised a full time job.

16       Mr Mitchell complained that his duties were being restructured to diminish his responsibilities and that his access to external telephone calls was cut off.  He says he believes that one of the main reasons for his alleged removal is because he is a union delegate.  He said that the company did not stop him from doing his duties as a delegate or as a support person.  In relation to his performance appraisals Mr Mitchell said that Jeanette Anderson had advised Syd Capper regarding performance appraisal comments in [Exhibit DMR 6].  Mr Mitchell says that he is not adept with computers and was not properly trained in computers.

17       The evidence of Mr Paul Justice, an organiser for the union with responsibilities for the union at the Burswood Resort, is that he has had to rely on delegates as he has never been allowed to represent members properly.  He says that Mr Mitchell is a very effective delegate respected by his peers and that the resort was notified that Mr Mitchell was a delegate but not that he is President of BRUE, although this was posted on notice boards.  He says he was not notified of the intention to dismiss Mr Mitchell and said that Mr Mitchell told him of the events of the meeting of 13 December 2000 following that meeting.  Mr Justice complained about the removal of telephone access for Mr Mitchell but says that Mr Mitchell has not been denied his role as a delegate by the company.

18       Mr Michael Carton gave evidence that he has been the Environmental Services Manager at Burswood Resort Casino since July 1999 and was previously Assistant Manager of Environmental Services.  He says he has known Mr Mitchell for some time and has had a good relationship with him.  He says that he asked Mr Mitchell to return to Environmental Services in July 1999 as he was concerned about his budget and wanted Mr Mitchell to work for him again as he was paying for him.  He says that Mr Mitchell, since his first injury, has always been on modified duties and more latterly in the Environmental Services Area has been assisting various people including Mr Carton, a trainer, leading hands and supervisors.  Mr Carton says that due to pressures from the CEO he had to do a further review and restructuring of his area in mid 2000.  He says he also reviewed all those people on workers compensation and got advice from the medical department.  He says that now Mr Mitchell has only about 15 hours of required work per week.  Mr Carton says that he implemented restrictions on telephone use of two telephone lines, including the one used by Mr Mitchell, as he was concerned that he was over budget in this area.  Mr Carton says that he met with Pam Donald and Clare Ryan on 17 August 2000 at which time he discussed the abilities of Mr Mitchell to return to his duties.  He says he did not know at that time that Mr Mitchell could not return to any cleaning duties and tried to get him to do some of these duties.  He says that he was always actively looking for tasks for Mr Mitchell to perform to be fully engaged.  Mr Carton says it had come to the point where there were no duties to be reallocated to Mr Mitchell and the job is not there.  He says he asked Mr Mitchell to leave the canteen on 5 December 2000, after being approached by Ms Ryan, as he believed he was on the premises unlawfully and was using a meal voucher when not entitled to.  Under cross-examination Mr Carton agreed that Mr Mitchell was not happy with the return to Environmental Services and had wanted to stay in the Purchasing Office.  He agreed that at the meeting of 17 August 2000 that he had considered termination of Mr Mitchell as a possibility but Mr Mitchell was not advised at that stage.  He says that until he was advised of Dr Connaughton’s report, he was not aware that Mr Mitchell could not do any cleaning duties at all.  He confirmed that Mr Mitchell was concerned about going to Workforce and that he had reassured him about that.

19       Mr Ian Ellison, Health and Safety Manager gave evidence that there was no time limit placed on rehabilitation in Burswood and sometimes rehabilitation goes for as long as it takes.  He says he knew that Mr Mitchell was in the Purchasing Office at one stage and that he assisted in that area.  He says that he knew Mr Mitchell was on light duties for 4 ½ years and that this is a long time albeit the philosophy is to provide meaningful work within the capabilities of the employee. 

20       Evidence was also given by Ms Pamela Donald who is currently the Rehabilitation Co-ordinator at Burswood Resort Casino.  She says she did not have the case management of Mr Mitchell, that was done by Ann Alexander.  She confirmed that the writing on the post-it tab [Exhibit JF1(5)] was that of Ann Alexander.  She says she was not aware of any promises of permanency in the Purchasing Office and the assistance in the Purchasing Office is usually given to people who are in rehabilitation.  She says she did not believe that the jobs offered to Mr Mitchell at the meeting of 13 December 2000 were ones that were suitable for him.  The evidence of Ms Jeanette Anderson, the Purchasing Manager for Burswood was that the duties which Mr Mitchell performed in her area were modified duties assisting other staff within the area.  She says she had about 20 people through her area on modified duties in recent years.    There are currently two employees on rehabilitation currently in her area.  She says that she is aware of a conversation with Mr Carter regarding concerns of Mr Kennedy that Mr Mitchell had access to confidential files particularly in relation to use of legal assistance.  She says that on the arrival of the new CEO, she has had to seek to reduce cost and there has been a job freeze imposed.  She says there has been an increasing level of computerisation of procedures in her area.

21       The evidence of Ms Clare Ryan, the Human Resource Officer at Burswood Resort Casino is that she had a discussion with Mr Paul Kennedy and Ms Kathleen Drimatis, Workplace Relations Officer regarding the termination of Mr Mitchell in early December 2000.  She says she advised Mr Carton on 5 December 2000 that she thought that Mr Mitchell was unfit for work and so could not use the facilities.  She says again on 23 December 2000 she was in the queue by Mr Mitchell and queried whether he was entitled to be there.  She says she did this in a quiet voice and did not tell him to leave.  She says that at the meeting of 17 August 2000 between herself, Mr Carton, Ann Alexander and Pam Donald they discussed workers compensation issues in general and how various individuals may be managed.  She says that [Exhibit DK3.12] is an accurate record of the meeting.  She says that a follow up meeting on 4 September 2000 to assess progress with follow up actions, Mr Carton raised problems with Mr Mitchell’s duties, namely that he had difficulty finding duties for Mr Mitchell.  She says there are other people on workers compensation on modified duties who are also being assessed currently.

22       This does not cover all of the evidence given.  In particular it does not cover all of the medical reports or the recollections of the discussion of 13 December 2000.  However it is sufficient to elaborate on the versions of the events which are said to have occurred.  Additionally, I would say of the evidence given that the credibility of the numerous witnesses is not an issue for me in this matter.  I do not quibble or challenge the honesty of any of the witnesses.  I would though qualify this comment by referring to Mr Carton, in the giving of evidence, as a cautious witness in relation to his use of terminology, namely that Mr Mitchell was always on ‘modified’ duties.

23       I will deal firstly with the claims of the union in respect of breaches of clause 34 of the enterprise agreement and s.41 of the Minimum Conditions of Employment Act 1993.  Clause 34 – Union Delegates and Meetings at subclause 3 states:

“Prior to the intended dismissal of the Union delegate the Company shall notify the Union accordingly of the reasons for such dismissal”.

 It is clear from the evidence, that Mr Mitchell had the firm view and, in my opinion, correct impression from the meeting of 13 December 2000 that his employment would be terminated firstly on 10 January 2001 and then revised to 3 January 2001 should he not be successful in gaining alternate employment prior to that date.  I so find.  I say this because whilst it is clear that no final decision to dismiss Mr Mitchell has been taken, it is also clear that Mr Mitchell was to be dismissed on 3 January 2001 unless he found a suitable alternative position.  The company claims that no final decision had been taken to dismiss Mr Mitchell and hence clause 34(3) is not relevant and they are not in breach of any obligations pursuant to that agreement.  They say that there was to be a meeting on 3 January 2001 to review Mr Mitchell’s status.  What is clear, in my view, is that the inevitable result if Mr Mitchell did not find a position was that he would be terminated.  This was told to him on 13 December 2000 after being in various positions for several years.  Mr Mitchell quite rightly took the view that his employment was very likely going to finish.

24       This point must be seen in conjunction with clause 39 – Resolution of Disputes in the agreement.  I quote this clause in full.  It says:

“Any problem or dispute arising under the agreement during the currency of the agreement shall be dealt with as follows:

(a) The matter should first be discussed between the employee concerned and their immediate Supervisor with the view to resolution of the matter in question.

(b) If at this point the matter is not resolved to the satisfaction of the employee concerned, the matter shall be referred to a Human Resources Officer or other appropriate officer of the Company for further investigation and discussion.

(c) If the matter should still not be settled, the employee concerned shall be referred to the Human Resources Manager for further discussion.

(d) Should the employee concerned so desire, the appropriate Union delegate may accompany such employee and participate in any discussions or investigations prescribed in sub-clauses (b) and (c) of this sub-clause.  If for any reason it is the intention of the Company to give an employee a written warning, such employee shall have the right to have a Union delegate present at such time as the written warning is issued.

(e) If the matter is still not satisfactorily resolved, it shall be formally submitted by the Secretary or other official of the Union to the Company for consideration and resolution.  Provided that persons involved in the problem or dispute will confer among themselves and make reasonable attempts to resolve problems or disputes before taking those matters to the Western Australian Industrial Relations Commission.  Should the matter, after this, still not be satisfactorily resolved, it may be referred to the Western Australian Industrial Relations Commission.

(f) Until the matter is determined in accordance with the above procedures, work shall continue normally.  All parties to the agreement, the Company, its officials, the Union and its members will take all possible action to settle any dispute within 7 days of notification of the dispute to the Human Resources Manager.

(g) No party shall be prejudiced as to the final settlement by continuance of work in accordance with this clause.”

In short the parties should seek to settle the matter prior to it coming to the Western Australian Industrial Relations Commission pursuant to clause 39.  [Exhibits PJ2 and PJ3] show that the union raised the issue of whether Mr Mitchell could have been properly sent home with pay and whether the employer needed to keep his position open for 12 months.  The respondent in response queried the union’s suggestion of recourse to the Commission and advised Mr Mitchell was given full details of his options at the meeting of 13 December 2000.  The company provided no further advice to the union.  In summary, I do not consider the company complied with clause 34(3) of the agreement in that they did not advise the union albeit they had taken the view that they would dismiss Mr Mitchell subject to certain conditions.  At the same time all that is required in clause 39 – Resolution of Disputes was not complied with prior to bringing the matter to the Western Australian Industrial Relations Commission.  That is reasonable steps to confer and resolve the matter were not taken prior to the application.

25       I have no further regard for either argument.  There is clearly a dispute between the parties as to whether it is fair for Mr Mitchell in all the circumstances to be terminated.  The matter was urgent in that Mr Mitchell expected to loose his job just after the new year and the issue arose just prior to Christmas.  This is a matter properly referred for hearing and determination and Mr Mitchell is still employed and has not received formal notification of termination, albeit the employer could have issued this at any time during the hearing.

26       Section 41 of the Minimum Conditions of Employment Act 1993 states:

“41. Employee to be informed

(1) Where an employer has decided to — 

 (a) take action that is likely to have a significant effect on an employee; or

 (b) make an employee redundant,

  the employee is entitled to be informed by the employer, as soon as reasonably practicable after the decision has been made, of the action or the redundancy, as the case may be, and discuss with the employer the matters mentioned in subsection (2).

(2)  The matters to be discussed are — 

 (a) the likely effects of the action or the redundancy in respect of the employee; and

 (b) measures that may be taken by the employee or the employer to avoid or minimize a significant effect,

  as the case requires.”

The respondent does not say that Mr Mitchell is to be made redundant.  The respondent says that Mr Mitchell is to be terminated unless he finds suitable alternative position, as he cannot fulfil the requirements of his original contract as an Environmental Systems Attendant due to his injury.  It is clear that the employer received further medical advice regarding Mr Mitchell’s recurrence of injury in November 2000 and having decided to terminate Mr Mitchell, subject to conditions, advised him of this at the meeting of 13 December 2000.  Likewise it is clear that at that meeting they advised him of the actions they would take regarding his alternate employment.  The actions were namely to provide him with copies of internal vacancies as they arose.  I find that the respondent has complied with s.41 of the Minimum Conditions of Employment Act 1993. 

27       The applicant union brought forward considerable evidence in relation to allegations that Mr Mitchell had been discriminated against due to his position as President of BRUE.  They assert that if not for this he would not have been chosen for termination.   Mr Kelly’s evidence of the history of relationship between the union and the company stands for just that.  By that I mean it is no more or less than a backdrop to and recital of events in their relationship.  It does not go to how Mr Mitchell was treated.   The main complaint from Mr Kelly and Mr Justice is that they consider that the company has a strategy to limit the effectiveness of delegates.  These delegates are only allowed to be support persons or observers in initial discussions with supervisors where members are in dispute.  Mr Kelly under cross-examination conceded that there is nothing illegal about the company’s approach albeit he complained that they operated to the letter of the law or in fact sought to extend that.  Of more relevance is that there was nothing in the evidence of Mr Kelly or Mr Justice to sustain a complaint of discrimination against Mr Mitchell above simply suspicions that he may have been discriminated against.

28       The evidence of Mr Mitchell is that his suspicions of being discriminated against due to his union activities stem from a conversation he had with Jeff Carter in July 1999 whereby Mr Carter approached him and advised him confidentially that Jeanette Anderson had told him that she had been instructed by Derek Jones who had been instructed by Paul Kennedy that they wanted Mr Mitchell out of the Purchasing Office as he was an active union member.  This evidence of a conversation is not disputed except that the interpretation by Ms Anderson is that the concern related to access to confidential information regarding legal expenses.   Mr Mitchell says that two days later Mr Carton approached him seeking his return to the Environmental Services Area.  Mr Mitchell complained that his change of duties following his injury in May 2000 and the redirection of his calls were also evidence of him being discriminated against and attempts to curtail his union activities.  In addition to this are the complaints about his treatment in the canteen by Ms Ryan and Mr Carton, and there is the issue of monitoring sheets of delegate activities.  Under cross-examination Mr Mitchell said in response to the monitoring sheets as exhibited at [DK3(10A-D)] that he had on many occasions taken up matters with Mr Carton which were concerns of members.  Mr Carton’s evidence supports this.  He conceded that he was given messages if the union rang, this was following the redirection of the phone calls and that he was able to return these calls albeit in a more restricted manner.  The impression gained from this is that even though Mr Mitchell’s activities were monitored as were the activities of other delegates, his activities were not monitored fully nor was he obstructed in his role as a union delegate.  On all of the evidence given on behalf of the applicant union, I do not find that Mr Mitchell was discriminated against by virtue of his union membership or his role as a union delegate.  The applicant union has simply failed to sustain this part of their case.  The highest point of the evidence comes to is one of suspicion and some insensitive treatment of Mr Mitchell in the canteen, and this is to be weighed against the concession by Mr Kelly, Mr Mitchell and Mr Justice that Mr Mitchell was able to get on with his business as a union delegate.  The history of relations between the company and the union has no specific relevance to this matter other than the company has opposed and not encouraged the involvement of the union.  Whilst the relations between the company and the union are not harmonious, the evidence does not go so far as to sustain an allegation of discrimination of Mr Mitchell due to union activity.  I will return to this issue of his reduction in duties.

29       The next issue to address is whether by virtue of s.84AA of the Workers Compensation Act 1981, the company is restricted from terminating Mr Mitchell in any way.  That Act states:

 “84AA. Employer to keep position available during worker’s incapacity

(1) Where a worker who has been incapacitated by disability attains partial or total capacity for work in the 12 months from the day the worker becomes entitled to receive weekly payments of compensation from the employer, the employer shall provide to the worker -

1. the position the worker held immediately before that day if it is reasonably practicable to provide that position to the worker; or
2. if the position is not available, or if the worker does not have the capacity to work in that position, a position –

(i)            for which the worker is qualified; and

(ii)         that the worker is capable of performing,

most comparable in status and pay to the position mentioned in paragraph (a).

  Penalty: $5000.

(2) The requirement to provide a position mentioned in subsection (1)(a) or (b) does not apply if the employer proves that the worker was dismissed on the ground of serious or wilful misconduct.

(3) Where, immediately before the day mentioned in subsection (1), the worker was acting in, or performing on a temporary basis the duties of, the position mentioned in paragraph (a) of that subsection, that subsection applies only in respect of the position held by the worker before taking the acting or temporary position.

(4) For the purpose of calculating the 12 months mentioned in subsection (1), any period of total capacity for work is not to be included.”

30       The company referred to two decisions of Beech C (Raymond John Stockwin v Cable Sands Pty Ltd 77 WAIG 509 and Michael Geoffrey Pacey v Modular Masonry (WA) Pty Ltd 78 WAIG 1421) to support their case.  Beech C at 77 WAIG 509 states:

“Prior to the insertion of s84AA there was no statutory restriction on terminating the employment of an employee who is absent from work on workers’ compensation.  Termination of employment could occur provided the relevant notice period was given (HEIU v St George’s Hospital (1975) 55 WAIG 1053).  Section 84AA makes it an offence to dismiss an employee for the first 12 months while the employee is absent on workers’ compensation unless the dismissal is for serious and wilful misconduct.  But in Mr Stockwin’s case he was not absent from work on workers’ compensation when he was dismissed.  He had been certified fit for either partial or full employment and was actually at work (although not required to attend pending the company’s consideration of his action) when he was dismissed.

If indeed an employee absent on workers’ compensation is dismissed so that the employer, in breach of s84AA, does not offer the employee his or her previous job back upon attaining partial or total capacity for work in the 12 months from the day the employee becomes entitled to receive weekly payments of compensation from the employer, the breach renders the employer liable to a penalty under that Act.  Although Mr Clohessy argued that s84AA prevented Mr Stockwin’s dismissal from happening that is not the case.  As the High Court recently observed, the fact that a statute prohibits the doing of an act does not show that the act cannot be done (per Latham CJ in Automatic Fire Sprinklers v Watson as cited with approval by Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Ltd (1995) 69 ALJR 797 at 804).  The question whether Mr Stockwin was dismissed on the 5th March is thus a question of fact.  A dismissal which is in breach of the Workers' Compensation and Rehabilitation Act 1981 may of itself also be unfair although the fact of the breach will be simply one factor to be taken into account in the overall circumstances (Newmont Australia v AWU (1988) 68 WAIG 677 at 679).”

 I agree with these views.  Section 84AA does not prevent dismissal and cannot be read as simply excluding a dismissal for misconduct for 12 months from the date of injury

31       It is not disputed that Mr Mitchell sustained a second injury in May 2000 to his knee.  He suffered a recurrence of the injury in November 2000.  I do not seek to go through all the medical evidence other than to say it is clear and it is common ground between the parties that Mr Mitchell is at least now incapable of fully returning to his position as Environmental Services Attendant.  It is common ground that Mr Mitchell has at all times, irrespective of the duties he has performed, been paid the rate of pay for an Environmental Services Attendant.  The argument therefore relies on whether s.84AA applies so as to obligate the employer to provide, within a 12 month period, a position for which Mr Mitchell is qualified and is capable of performing.  The 12 months would effectively date from the date of the second injury on 22 May 2000.  Exhibit JF1(8) is a record of proceedings and review for Workcover Western Australia for 31 October 2000 and references the finding of fresh disability for Mr Mitchell on 22 May 2000.  Mr Mitchell did return to full duties after this injury.  A position was kept available for him, albeit modified duties, and he returned to it.  The obligation of the employer under s.84AA was satisfied at that stage.

32       Mr Mitchell’s evidence is that on two occasions he was offered permanent employment.  Firstly in November 1998 in the Purchasing Office assisting other purchasing officers with their work, and secondly in July 1999 when he moved back to the Environmental Services Area and undertook work assisting Mr Syd Capper and then took over a substantial part of the duties of Mr Capper.  Mr Mitchell gave evidence that he had hopes that an earlier position in 1996 assisting the training officer in Environmental Services Area might have developed into something more.  However, his evidence does not go to a suggestion that he was offered a  permanent position in this area.

33       Mr Mitchell gave evidence that in November 1998 he was approached by Ann Alexander the Rehabilitation Co-ordinator and Margaret Russell the then Manager of Environmental Services and asked whether he wanted to take up duties in the Purchasing Office.  This is not disputed.  He says he was advised that there was a full time vacancy coming up and that if he went to the Purchasing Office and if he was capable he had a good chance of getting a position permanently when it came up.  This is not disputed.  He says his duties were to relieve the purchasing officers of the mundane aspects of their duties.  He says when he moved from that position back to Environmental Services his duties were taken over by another person by the name of Shelley.  Again the evidence of the respondent supports this, although the duties may not be like for like.  That is not the essential issue.  The issue is whether this was a permanent position and on the weight of evidence for Ms Anderson and Ms Donald it would seem to be a temporary position for rehabilitation purposes.  Indeed Mr Mitchell’s evidence when viewed closely is that he hoped to get a permanent position, and was told he would have a good chance of getting one that was coming up.  He was not promised a permanent position and it did not come up.  At least it has not been finally filled on Ms Anderson’s evidence which I consider plausible.  I find that Mr Mitchell did not have a permanent position in the Purchasing Office.  This has relevance to s.84AA(3). 

34       There is no suggestion that Mr Mitchell would not have continued in the Purchasing Office awaiting the permanent position to be advertised and filled but for Mr Carton’s budgetary inspired constraints.  It is Ms Anderson’s evidence that Shelley now has a good chance of obtaining that position as she has been there for sometime and she is good at computing.  It is also clear from the evidence that Mr Mitchell did a very good job whilst in the Purchasing Office.  On his own evidence he is not particularly computer literate.  I should add that I was impressed with Mr Mitchell as a witness and the impression gained from his own evidence, and that of Mr Carton and the performance appraisal, is that he was a keen and able worker within his capabilities.

35       The other claim Mr Mitchell makes is that he had a permanent position on return to the Environmental Services Area.  The evidence of Mr Mitchell is that he went to the Purchasing Office for an indefinite time with the promise, I would characterise it as an aspiration or hope, of getting the permanent job once advertised.  The fact is Mr Mitchell only left because Mr Carton asked him to.  This is common ground.  I accept as the most plausible case that Mr Carton wanted Mr Mitchell back due to budgetary pressures.  I do not find that Mr Mitchell was given a permanent position in Environmental Services on his return in July 1999.  I find that the respondent has not breached s.84AA of the Workers Compensation and Rehabilitation Act 1981.

36       I do not doubt Mr Carton’s evidence that he had to restructure the Environmental Services Area to gain more efficiencies.  This had an impact on Mr Mitchell’s duties.  I find that it is plausible and more likely that Mr Mitchell’s duties were diminished due to a legitimate drive for efficiency.  As stated, I do not find that there has been discrimination due to Mr Mitchell being a delegate, and I do not consider that the evidence proves that his duties have been cut because of this. 

37       I do not challenge the employer’s right to run their business efficiently and for Mr Carton as part of that operation to restructure his department to gain additional efficiencies.  In so doing he has reduced the demand on Mr Mitchell’s time.  It is clear that Mr Mitchell is a good and competent employee who has for more than 5 years continued to be employed by the respondent albeit for the majority of time on modified duties but also having performed competently for the respondent during this time.  Having said this it is not clear to me why the respondent having on their own evidence, accommodated Mr Mitchell for more than 5 years in rehabilitation and alternative duties that following further medical advice in November 2000 they should then call him and on the basis of this advice and give him one month to find an alternative position.  The respondent says that the line needed to be drawn somewhere.  It has been clear for many years that Mr Mitchell was not going to be able to return to normal duties as a cleaner.  Mr Carton says this was not clear to him until Dr Connaughton’s report but the actions of the employer, the weight of evidence, and their argument that he was always on modified duties speaks against this.  There is no real evidence of issue between the parties in respect of that.  The only real issue is that his duties continue to diminish courtesy of restructuring the employer sought to undertake.  This occurred over a number of months from May 2000. 

38       One view is that section 84AA of the Workers Compensation and Rehabilitation Act 1981 means Mr Mitchell could reasonably be expected to be in employment at least to 22 May 2001.  I do not take this view, in a strict legal sense.  However, Mr Mitchell is 59 years of age and has given good service to the respondent albeit within his capabilities due to his two injuries.  He was simply called in one day and given one month to find himself an alternative position. The employer decided in early December 2000 that termination was an option, and I would say the most probable option.  This is my finding on the evidence.  Mr Mitchell was to be on leave and when he asked for his leave to be cancelled this was reduced to approximately 3 weeks.

39       In accordance with the Industrial Relations Act 1979 I am required to exercise my judgement according to equity, good conscience and the substantial merits of the case and I find it would be harsh and unfair, particularly given the spirit of s.84AA, and in all the circumstances of the history of rehabilitation for Mr Mitchell his age and his good service, to so swiftly terminate Mr Mitchell’s employment if he himself does not find an alternative position.  The respondent should engage in a fuller exploration of options for Mr Mitchell and I recommend that this take some months including appropriate training.

40       These are my findings and reasons in this matter.  I intend to invite the parties, once they have digested these, to make submissions at hearing on the terms of the Order which should issue in this dispute.  This hearing will not be listed for at least seven days from the date of this decision to allow the parties to discuss what arrangements may be able to be negotiated to accommodate Mr Mitchell and to attempt to agree on the terms of an Order that may issue.  I strongly recommend that the parties use this time wisely to seek to agree on the most productive use of Mr Mitchell’s services.