Appeal - Unfair dismissal - Appeal from decision in s 84 proceedings reinstating applicant - Little factual controversy at first instance - Applicant had worked on a vocational rehabilitation programme involving reduced duties for over 12 months - Procedural and substantive unfairness found - Whether power to make orders for reinstatement under s 89(1) or s 89(2) - Construction of s 89(1), 89(2) and 89(8) - Decision held to have been made under s 89(1) - Whether Full Bench decision in Effem Foods Pty Ltd t/as Uncle Bens of Australia v Urban correct - Decision in Commonwealth Steel Company Limited v David Alfred Ward to be preferred - Leave to appeal granted in part - Appeal dismissed

APPELLANT: Mr R S Warren of counsel Acuiti Legal (Mr M J Davis) LEGAL REPRESENTATIVES: RESPONDENT: Mr R Reitano of counsel Slater & Elias, Solicitors (Mr P P Elias)

CORAM: Wright J, President Walton J, Vice-President Redman C

Wednesday 15 May 2002 Matter No IRC 6002 of 2001

IGA DISTRIBUTION PTY LIMITED and MICHAEL JOSEPH MOSES

Application for leave to appeal and appeal against a decision of Commissioner Cambridge delivered on 20 August 2001 in Matter No IRC 1550 of 2001

DECISION OF THE COMMISSION [2002] NSWIRComm 96 1 This matter concerns an application by IGA Distribution Pty Limited for leave to appeal and, if leave be granted, an appeal against a decision and orders of Commissioner Cambridge given on 20 August 2001: M Moses & IGA Distribution Pty Ltd [2001] NSWIRComm 1053. The decision related to an application by the respondent, Michael John Moses, pursuant to s 84 of the Industrial Relations Act 1996. Cambridge C found that the dismissal of the respondent was harsh, unreasonable and unjust and made orders for reinstatement and related relief. 2 The factual background is described sufficiently for present purposes in the commissioner's decision as follows: [3] The applicant is a man who was some 44 years of age at the time of his alleged unfair dismissal on 6 February 2001. The applicant had been employed for approximately thirteen years and two months and worked in a position described as Storeworker.

[4] The employer is a wholly owned subsidiary of Metcash Trading Ltd. The employer was formally known as Davids Distribution Pty Ltd. The employer is involved in the grocery distribution business. The employer operates two distribution centres in New South Wales, respectively located at Blacktown and Silverwater. The distribution centres are also referred to as warehouses.

[5] The applicant worked at the employer's Blacktown warehouse and performed a broad range of tasks comprehended by the position of Storeworker. The tasks included, inter alia; the receipt and ordering of grocery items; the selection or "picking" of particular items; the stacking, wrapping and movement of items about the warehouse; and the loading of grocery items on to delivery vehicles for dispatch to retail and other outlets. The range of tasks performed by Storeworkers included some functions which involve little physical exertion, and others which require the capacity to lift heavy grocery items. The applicant performed the broad range of Storeworker duties without recorded complaint, and his work history identified that he was both competent and diligent in the performance of his duties.

[6] In 1998, the applicant was one of a number of members of the National Union of Workers, (the NUW), who were involved in a significant industry dispute which attracted wide spread media coverage. The applicant was one of a number of members of the NUW who were dismissed by the employer during the industrial dispute. The applicant was one of approximately 53 members of the NUW who were subject to Orders of the Federal Court of Australia, which in practical effect, stayed the termination of employment and required the employer to continue to treat the applicant (and others) as an employee.

[7] The applicant was performing work for the employer pursuant to the aforementioned Orders of the Federal Court of Australia when, on 1 June 1999, he sustained a workplace injury which was diagnosed as "lower lumber disc bulges". Despite various treatments, the applicant's injury prohibited him from performing tasks which involved lifting and carrying boxes of grocery items of greater than ten kilograms.

[8] Consequently the applicant was allocated Storeworker duties in a particular section of the Blacktown warehouse called the Repack Centre. The Repack Centre is a discrete part of the Blacktown warehouse which deals with previously dispatched goods that have been returned from the employer's customers. The work in the Repack Centre is generally, but not entirely, involved with less lifting of articles that are more than ten kilograms in weight. Given the applicant's incapacity to lift weights above ten kilograms, the applicant was assigned work in the Repack Centre and continued to perform such work until about 20 November 2000. 3 The history of a long standing industrial dispute between the appellant and the National Union of Workers' before the Australian Industrial Relations Commission is then dealt with. The substance and details of that dispute is, however, not presently relevant. 4 The respondent was informed by letter on 4 December 2000 that the appellant intended to terminate his employment on 6 February 2001. On 7 February 2001 he was advised in writing that he had been dismissed with effect from the day before on the basis of medical advice indicating that he was not fit to resume the full range of his previous duties. The basis on which the respondent was terminated was the foundation of the claim of unfair dismissal. 5 There was little in the way of factual controversy at first instance. The appellant was the only witness in his case. The respondent called the Operations Manager from its Blacktown warehouse, Mr Gary O'Shea, and the Group Employee Relations Manager, Mr Gary Johnson. The Commissioner considered that each had provided their evidence "in an open and sincere fashion". 6 The respondent's case at first instance was, in essence, that he had been injured some time before and had been working on a vocational rehabilitation program involving reduced duties for some time. The respondent was capable of being safely and gainfully employed in the "Repack Centre" as he had been for the previous 12 months. It was submitted that in the absence of any changed circumstance, the failure of the appellant to properly consider whether the respondent could be deployed elsewhere in its operations amounted to the decision to dismiss which was harsh, unjust and unreasonable. It was unjust to terminate the respondent on the basis of incapacity where there had not been demonstrated some adverse impact on the employer. 7 The appellant, at first instance, resisted the application on two primary grounds. Firstly, the appellant had been subject to an order of the Federal Court, made during the aforementioned dispute, which required it to refrain from terminating the employment of 53 of its employees until further order of that Court. The terms of that order, so it was submitted, gave rise to a "fiction" in which the respondent should no longer have been properly considered an employee of the appellant. As such, so it was contended, the respondent could not bring an application alleging that he had been unfairly dismissed from his employment. 8 The appellant contended, in the alternative, that the dismissal was justified in that, despite the extensive efforts at rehabilitation and job re-evaluation, the respondent was not able to perform essential lifting tasks associated with his pre-injury employment. It was contended, contrary to the submissions of the respondent, the appellant had considered the personal circumstances of the respondent. Further, it was contended before the commissioner that should he determine that reinstatement was the appropriate remedy, he would be denying opportunities for graded rehabilitation and return to work to other members of the appellant's workforce. 9 The commissioner's reasoning commenced at paragraph [31] of his decision. Cambridge C rejected the appellant's first contention and proceeded to deal with the alleged justification for the dismissal. His reasoning in this regard is as follows: [39] The basis for the applicant's dismissal was not contested. The applicant acknowledged that he was not fully fit to perform the full range of duties comprehended by the Storeworker position. The employer dismissed the applicant because he was not fully fit to undertake all duties comprehended by the Storeworker position.

[40] Importantly the employer undertook little, if any, assessment and consideration of the impact that the applicant's incapacity had upon the performance of adapted duties, sufficient for the applicant to discharge obligations relevant to his employment in the position of Storeworker. Instead the employer approached the consideration of the applicant's dismissal on a simplistic basis which did not extend beyond the prospect that, as the applicant could not resume all pre-injury duties, no accommodation for his condition could be established so as to provide for the discharge of the applicant's employment obligations.

[41] This specious approach to the consideration of the applicant's position is well summarised by the following extract of evidence provided by Mr O'Shea during cross examination when he stated: "We consider that there is no permanently modified duties at the warehouse, and so there was no permanently modified duties to accommodate Mr Moses' condition."

[42] It would seem therefore that to approach consideration of the dismissal of the applicant on this simplistic basis would be unreasonable. It is an unreasonable assumption to conclude that some physical incapacity to perform all of the duties associated with a position, must translate into a failure to fulfil employment obligations relevant to the position, and thereby establish justifiable basis for dismissal. 10 The commissioner considered, having regard to Qantas Airways v Christie (1998) 193 CLR 280, that it was incumbent upon an employer to establish, after proper investigation and consideration, that a worker's incapacity represented "an inability to discharge the employment obligations relevant to the employee's position" before such incapacity could be used as a proper justification for dismissal. He considered that the evidence demonstrated there was suitable employment for the respondent available within the appellant's workforce and that as such, the appellant had failed to demonstrate that the respondent's incapacity provided a justifiable reason for termination. Cambridge C also noted there had been procedural difficulties attendant upon the dismissal. He then said: [51] Consequently it appeared that the employer may have acted with undue haste following the settlement of the industrial dispute with the NUW. The employer may have erroneously construed the settlement with the NUW to represent "open season" on the hitherto "protected species."

[52] Further procedural deficiency can be identified from the lack of direct consultation with the applicant during his extended rehabilitation program. Most of the correspondence regarding the applicant's rehabilitation was conducted between the rehabilitation provider and the employer, with documents often copied to various relevant medical practitioners, but rarely provided to the applicant.

[53] The level of consultation with the applicant about his rehabilitation program, including matters such as the progress or lack thereof, and the consequences of the assessed outcomes of the rehabilitation program was inadequate. The employer's procedures for dealing with rehabilitation and dismissal arising from incapacity to perform the full range of duties associated with the Storeworker position was not clearly articulated to the applicant. As a matter of proper procedure an employer with a workforce of the size engaged by the employer, should ensure that its policies and procedures regarding rehabilitation and dismissal arising from assessed incapacity, should be the subject of both documentation and ample direct consultation.

[54] Proper consultation with the applicant would have likely ensured that adequate consideration of the applicant's personal circumstances would have preceded any decision to dismiss. This is particularly relevant given that the applicant had an unblemished work record of a little more than thirteen years. The absence of these procedures establishes clear harshness in the decision to dismiss.

11 Cambridge C then dealt with the issue of an appropriate remedy in this way: [56] The applicant sought Orders involving reinstatement as remedy for his unfair dismissal. It is clear that reinstatement represents the primary remedy provided by section 89 of the Act. Alternatives such as re-employment or compensation arise when some impracticality of reinstatement has been established.

[57] Given that the consideration regarding the substantive basis provided for the applicant's dismissal has been found to be fallacious, it would seem to follow that there could be little prospect of establishing any impracticality in reinstatement. That is to say that, the finding that the applicant's incapacities were not translated into any failure to enable useful and efficient employment as comprehended within the position of Storeworker, then an absence of evidence of any changed circumstances would logically overcome any suggestion of impracticality to reinstatement.

[58] In the absence of any evidence of changed circumstances regarding the capacity for the employer to continue to provide modified duties comprehended by the Storeworker position, a question of impracticality of reinstatement must be treated in similar fashion to the underlying substantive reason provided for the dismissal. There being no changed circumstances, the fallacious basis for the dismissal must also represent an absence of impracticality for reinstatement to the position. Expressed simply, the modified work provided to the applicant before dismissal is, in the absence of any evidence regarding altered circumstances, capable of being provided upon reinstatement. 12 It was held that the respondent remained an employee of the appellant following the lifting of the orders of the Federal Court. The commissioner then set out his conclusions on the merits, reasoning as follows: [64] The issue of the fairness or otherwise of the dismissal of the applicant principally involved the substantive basis that was provided as reason for the applicant's dismissal. The applicant was dismissed because he had certain physical incapacities which meant that he could not complete 100% of the tasks comprehended by the position that he occupied of Storeworker. In the absence of demonstrable adverse impact of the applicant's incapacities, I conclude that it was unreasonable and unjust to dismiss the applicant for reason of the established incapacities per se.

[65] I conclude that it is fundamentally unreasonable to adopt a policy that anything less than 100% fitness for all duties comprehended by the employment can provide justifiable basis for dismissal without first establishing the practical effect of the incapacities.

[66] The approach adopted by the employer is also harsh and unjust. In many respects the approach is consistent with a procedure which might be appropriately applied to a piece of machinery rather than a human being. It is acceptable for someone to discard a piece of machinery if one part of that machine is worn or not performing to optimum level. However women and men are not machines. Fundamental human rights and dignities demand that proper inquiry be made of the effect of any incapacity and the means to mitigate or overcome any established deficiency, before dismissal becomes available.

[67] Consequently I conclude that the substantive basis for dismissal was harsh, unreasonable and unjust. Further procedural deficiencies identified in the implementation of the dismissal of the applicant, including; the absence of proper consultation; lack of consideration of the applicant's length of service, and other personal circumstances; and the pre-determination of the dismissal some three months before the date of implementation, all provide further elements of harshness and unreasonableness.

[68] In respect to appropriate remedy for the applicant's unfair dismissal, I am compelled to provide for Orders of reinstatement. The nature of the findings made regarding the substantive basis for dismissal, coupled with the absence of any evidence of changed circumstances, provides a compelling basis to conclude that reinstatement would not be impracticable.

[69] Consequently I provide Orders for reinstatement of the applicant to the position of Storeworker as appropriate remedy for the applicant's unfair dismissal.

[70] Further I am prepared to provide for Orders of remuneration for the intervening period between dismissal and reinstatement of the applicant. The quantum of such remuneration should be the subject of discussion between the Parties, and in the absence of agreement as to quantum I am prepared to provide for Settlement of Minutes of Order proceedings to resolve any contest. 13 The orders made were: 1. The Commission Orders that the employer reinstate the applicant to his former position as Storeworker on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. The applicant is to be reinstated as soon as practicable, and within twenty one days from the date of this Decision. 2. The Commission Orders that the employer pay to the applicant an amount which equates with the remuneration that the applicant would, but for being dismissed, have received in the intervening period between dismissal and reinstatement, less any amounts received as payments in respect of workers compensation or derived from alternative employment. This amount is to be paid as soon as practicable and within twenty one days from the date of this Decision, but may be subject to Settlement of Minutes of Order proceedings initiated by written request of either Party within twenty one days from the date of this Decision 3. The Commission Orders that the period of employment of the applicant with the employer shall be taken not to have been broken by the dismissal. The intervening period between dismissal and reinstatement of the applicant shall be counted for all purposes as a period of employment. 14 The application for leave to appeal included an application to stay the commissioner's orders. The stay application and another interlocutory application made by the respondent were the subject of an extempore decision by Wright J, President, on 20 September 2001: IGA Distribution Pty Ltd and Moses [2001] NSWIRComm 235. His Honour there dealt with a submission that the reinstatement of the respondent should be stayed (it being noted that the order relating to the payment of monies had been complied with) due to the health and safety concerns which had arisen from the order of reinstatement in the circumstances of this case. His Honour observed that the dismissal was not based in any way upon the conduct of the employee and that, given the nature of the stay decision, the appropriate manner on which to approach the stay application was the findings made at first instance. His Honour considered there were two reasons requiring the adoption of such a course: [38] For two main reasons I consider that the factual matters which I should act on for the purposes of the stay application are the Commissioner's findings. First, because there is no presumption in the filing of a Notice of Appeal, even where the appeal has arguable prospects of success, that the first instance decision was wrong or that it would be set aside. Secondly, and which must be seen to be relevantly cumulative upon the first consideration, the respondent had worked in the relevant area without criticism of his personal performance or the satisfactory nature of his work for a period in excess of one year. In those circumstances I do not consider that it would be appropriate to find that it is not possible for the respondent to return to that area of work until the determination of the appeal. 15 His Honour noted that this in no way was to be taken as an indication that the appellant was in some way relieved of its obligations under the relevant occupational health and safety legislation. His Honour considered the appellant had not demonstrated circumstances which would warrant the exercise of discretion in its favour nor demonstrated that the balance of convenience warranted the imposition of a stay. The appeal 16 A substantial component of the contentions advanced by the parties to the appeal were directed to the proper construction of s 89(2) of the Industrial Relations Act. This resulted, no doubt, from the fact that appellant's challenge to the decision at first instance was substantially based upon the contention that the commissioner had misapplied that provision and the decision in Effem Foods Pty Ltd t/as Uncle Bens of Australia v Urban (1977) 81 IR 431 which dealt with its construction and application. We are, however, satisfied that the commissioner determined the matter pursuant to s 89(1) of the Act.

17 This misapprehension on the part of the appellant is understandable. There is some imprecision in the decision at first instance. It does not specify the provision under which the commissioner acted nor the specific issues which arose for consideration depending upon the applicable sub-section and the form of the order made.

18 This conclusion does not, however, resolve all of the controversy in the proceedings. There is also an issue as to whether the order made by the commissioner could have properly been made under s 89(1) of the Act having regard to the status of the respondent at the time of his termination. It is convenient at this point, to enable these issues to be considered in context to refer to the relevant parts of s 89 of the Industrial Relations Act, which are: 89 Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable.

(8) An order under this section may be made on such terms and conditions as the Commission determines.

19 At the time of his termination, the respondent was engaged as a storeworker with the appellant. He did not perform a full range of duties but rather, as is observed in the earlier extracts from the commissioner's decision, due to an injury sustained by him, he was engaged in modified duties in the "Repack Centre" of the appellant's operations. This centre was used from time to time as part of the appellant's rehabilitation programme.

20 During the appeal, we received helpful submissions, as to the proper construction of s 89(1) of the Act from Mr R S Warren of counsel, who appeared for the appellant and Mr R Reitano of counsel, who appeared for the respondent. Much of the debate concerned whether the commissioner could have made an order under s 89(1) reinstating the applicant to his former position, having regard to the fact that he was engaged on light duties immediately prior to his dismissal. It was contended by the appellant that the words "the former position" in the sub-section concerned the actual position held by the respondent prior to his termination namely, the position of storeworker involving the entirety of duties encompassed within that position when fully occupied (whether specified by award or otherwise).

21 However, it is unnecessary to determine that question in the present matter. We consider that the appeal should be resolved on the slightly different and more specific basis and ultimately, we think, on a basis commensurate with the decision made at first instance as this provides the appropriate basis upon which the appeal should be dismissed.

22 If it were to be accepted that the former position of the respondent was that of a storeworker carrying out the full range of duties for that position, it is within the power of the Commission under s 89(1) to make an order reinstating the respondent to that position but, having regard to the provisions of s 89(8) of the Act, upon terms and conditions that would place him within the "Repack Centre" upon light duties. This is, in our view, the true effect of the decision at first instance. It is also entirely consistent with the manner in which the appellant treated the respondent prior to his dismissal. That is, the appellant engaged the respondent as a storeworker, albeit on terms which did not require, for a lengthy period of time, the respondent to perform the full range of duties.

23 Further, we consider that in the light of this finding, the conclusions of the commissioner that the dismissal was harsh, unjust or unreasonable were open to him on the facts and circumstances of the case, as was the relief granted. Leave to appeal should be refused as to those matters. We consider it appropriate, however, to grant leave to appeal in this matter to the extent that it raises consideration of the operation of s 89 of the Act.

24 Having heard counsel as to the meaning of s 89(1) we consider that the construction of that provision should be dealt with at least in a preliminary way. We consider that upon the plain and ordinary language of s 89(1) an employee storeworker who carried out the duties of the respondent in the "Repack Centre" for the period he did prior to his dismissal could be said to hold thereby "a former position" (that is, a position with those duties or that work) for the purposes of the provision.

25 As earlier noted, counsel made substantial submissions as to the consideration and operation of s 89(2) of the Act. Although it is not necessary to deal definitively with that issue in light of the conclusions reached, it is appropriate to make some brief observations as to the operation of that provision and the decision in Effem.

26 We consider that the approach set out in the decision of the former Full Commission in Commonwealth Steel Company Limited v David Alfred Ward (unreported, IRC93/3144, 16 December 1994) is to be preferred to the decision in Effem. See in particular the following passage in the former case (at 15-18): The evidence given for the appellant was that there were presently no vacancies in any suitable positions in the light foundry or the bar mill or elsewhere in the works. Mr Crow submitted that the relevant provisions of s250(2)(a), namely: "another position that the employer has available and that, in the Commission's opinion, is suitable;" should be construed to mean that the other position should be available" in the sense that it was vacant. In the light of the conclusions to which we subsequently come, it is unnecessary to express any final opinion on that matter but we incline strongly to the view that the work "available" where used in the section is not synonymous with the word "vacant". In our opinion, such a construction would give the provisions of s250(2)(a) very little room for operation and could well render it nugatory in practice. We consider that a construction with that result would be contrary to the objects and purposes manifested in s250 when construed as a whole and should be avoided if another reasonable interpretation of the provisions is open. That section is designed, as is the whole of part 8 of Ch3 - UNFAIR DISMISSALS, to provide the Commission with jurisdiction to deal with and, in particular, to provide a remedy for cases of harsh, unreasonable or unjust dismissals. Where such a case has been made out, then the Commission has available to it three remedies in what we see as descending order. The primary and most appropriate remedy is reinstatement, as set out in s250(1). If the primary remedy is "impracticable", then the Commission has then to move to consider the second remedy, namely, re-employment. If that remedy is impracticable, then and then only, does the Commission move to the third and final alternative, namely, an award of monetary compensation which is limited.

As observed above, the equation of the word "available where appearing in s250(2)(a) with the word "vacant" would be unduly restrictive and, in practice, could very well defeat the purpose of the section. In our opinion, it would probably only be in a very rare case, at the time a decision is made that reinstatement is impracticable but that the applicant should be re-employed in another suitable position of the employer, that that other position would be vacant. Such a problem could, of course, be overcome by the Commission deferring any order for re-employment in another suitable position with the employer until such time as a vacancy occurred therein. This, however, could redound to the significant disadvantage of the employer in that the Commission would, of course, still be in a position to make an order for payment to the applicant of an amount which did not exceed the remuneration the applicant would, but for being dismissed, have received before being re-employed.

We therefore have grave doubts that the legislature intended that the word "available" meant "vacant". If that had been its intention, it would have been a simple matter for the legislature to have said so. In our opinion, the words "another position which the employer has available" where used in s250(2)(a) mean, on their proper construction, another position that the employer has available in the sense that such a position "exists", that is, that another position is of avail to, capable of being used by, or at the disposal or within the reach of, the employer - whether or not it is vacant at the time. We think that the lack of a vacancy in an available position may be a factor which goes to the question of the vacancy of the applicant's former position to which he may be reinstated is also a factor which may be taken into account when considering the question of practicability. The weight of that particular factor will, or course, vary from case to case and it may well be, in the situation of an employer with a very small workforce or, indeed, one consisting only of an individual employee, that it will be greater than in a case where the employer has available numerous such positions. The larger the workforce, the less the relevant significance of the lack of a vacancy in other suitable and available positions. In so observing that the question of vacancy, either in the former position or another person, is a relevant factor for consideration in determining the practicability of reinstatement or re-employment, we are not to be taken as suggesting that it is the critical or overriding one amongst other relevant considerations which may attach in a particular case. (The provision referred to in that decision, s 250 of the Industrial Relations Act 1991, was the predecessor to s 89 of the present statute).

27 In Effem, the Full Bench found that s 89(2) limited an order for re-employment to the re-employment of an applicant "in another position" which the employer had available. It was found that the section required the existence of an available and suitable position and did not authorise the Commission to require an employer to create a position "tailored to the abilities of the applicant" (at 346).

28 Submissions were made during these proceedings as to whether a substantive or actual position was required for an order under s 89(2) to be made. We consider that the view of the Full Bench in Effem, was that the proper interpretation of the words "available position" in Effem involved, in substance, the reading of the words of the provision as requiring the position to be vacant, in the sense that there must be a pre-existing, specified position designated by the employer which was vacant. Consistent with the approach adopted in Commonwealth Steel, we consider this is an unduly restrictive construction of the section which may, in an appropriate case, require more substantial reconsideration. 29 However, in the circumstances of these proceedings and if it had been necessary to deal with the matter on the basis of s 89(2), we would doubt the correctness of the appellant's submission that the commissioner would have erred in ordering re-employment of the respondent under s 89(2) since the position in the "Repack Centre" could be said to constitute, for all relevant purposes, an available position, the suitability of the respondent for that position being determined by his prior employment in the area.

30 The Commission accordingly makes the following orders:

1. Leave to appeal is granted as to the issue of the construction and operation of s 89(1) and (2) of the Industrial Relations Act 1996, and otherwise refused.

2. The appeal is dismissed. ________________________

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