Dowell Australia Ltd v Archdeacon

Dowell Australia Ltd v Archdeacon - [1975] HCA 29 - HCA 1975 case summary — Zoe

[100]

A clue to the true solution may, perhaps, be found in the somewhat loose language of the sub-section itself for the "provision" of suitable employment involves an element of mutuality. Employment is not a commodity which can be provided merely by an offer; it can in strictness be provided only by the employer and employee entering into and performing their obligation under a contract of service and this involves the co-operation of both employer and employee. There can, of course, be no "failure" on the part of an employer to provide suitable employment if the employee refuses, and continues to refuse, to enter his employment, or, if the facts show that the employee's conduct is inconsistent with the necessary degree of co-operation on his part. Such would be the case where the employee has undertaken full-time employment with another employer so long as such employment continues, or, where the employee moves his residence to a place so remote from the employer's place of business as to be quite incompatible with employment by that employer. Likewise, it would seem, the position would be the same where after his partially incapacitating injury the worker suffers further injuries or sickness resulting in total incapacity for any form of work. It must be remembered that not only is the obligation to provide suitable employment a continuing one but there must also be a continuing failure to provide suitable employment in order to entitle a worker to continuing benefits pursuant to s. 11 (2) and, in our view, there cannot be a continuing failure where the circumstances are such that it can be seen that throughout any relevant period the employee is not ready, willing or able to enter the employ of the pre-injury employer. Their Honours pointed out that whether or not there has been any such failure in relation to any period during the continuance of the partial incapacity is a question of fact to be determined in the light of all the circumstances, including the situation of the worker, and went on to say [7] : If throughout any such period he is engaged in activities which would have made it impossible for him at the same time to have performed the duties of an employment with his former employer there cannot be said to be a failure on the latter's part to provide suitable employment. They concluded by holding that there was no real basis for asserting that the very minor activities in which the worker in that case engaged were such as to preclude him from asserting that he was ready, willing and able to enter into suitable employment with his former employer. The other member of the Court, Menzies J., stated his conclusion rather more shortly. He said [8] : The provision of employment imports, of course, mutuality between the employer and the worker and it is not difficult to see that where it is the worker who is responsible for a lack of mutuality there is no failure on the part of the employer to provide employment. 1. (1968) 117 C.L.R. 665. 2. (1968) 117 C.L.R., at p. 669. 3. (1968) 17 C.L.R., at p. 670. 4. (1968) 117 C.L.R., at p. 671.

[102]

As, however, appears from what was said by the members of this court in R. J. Brodie (Holdings) Pty. Ltd. v. Pennell [11] , an employer does not fail to provide employment to a worker who in fact is not willing to work for him. This statement was as a matter of expression confined to the case of a worker not willing to work, since that was the actual situation which the Court there had to consider, but there is nothing in the judgment that suggests that their Honours were intending to limit, or restate to a different effect, the principle in Pennell's Case that they were applying to the facts before them. They went on to remark that what Sugerman J. said in Asciak v. Australian Glass Manufacturers Pty. Ltd. [12] , is in line with the observations made in Pennell's Case [11] . In Asciak v. Australian Glass Manufacturers Pty. Ltd. Sugerman J. said [12] : Section 11 (2) necessarily imports a readiness and willingness on the part of the worker both to accept suitable employment when offered and, if it is undertaken, to continue in it and conform to its duties and obligations. Their Honours in Electric Power Transmission Pty. Ltd. v. D'Urso then went on to give examples similar to those given in Pennell's Case. They said [13] : If a worker is in hospital or in prison or has gone away so that he cannot be employed, his former employer could not be said to have failed to employ him, whether or not the employer knew of the circumstances which made further employment impossible. These examples support the view that a workman must be not only willing but also ready and able to work before an employer can be said to fail to employ him. The ability referred to is, of course, an ability to work in suitable employment; the sub-section assumes that the worker is capable of some work and the employment which the employer is required to provide must be suitable to his disability. The remaining member of the Court, McTiernan J., agreed with the judgment of the other members on the footing that Pennell's Case [14] had adopted a construction of s. 11 (2) that he felt bound to accept. In my opinion the Court in Electric Power Transmission Pty. Ltd. v. D'Urso [15] accepted and applied the principle established in Pennell's Case and went further in holding that it is immaterial that the employer is unaware that the worker is not ready, willing and able to enter into suitable employment. 1. (1970) 124 C.L.R. 338. 2. (1970) 124 C.L.R., at p. 341. 3. (1968) 117 C.L.R. 665. 4. (1964) 64 S.R. (N.S.W.) 344, at p. 351. 5. (1968) 117 C.L.R. 665. 6. (1964) 64 S.R. (N.S.W.) 344, at p. 351. 7. (1970) 124 C.L.R., at p. 342. 8. (1968) 117 C.L.R. 665. 9. (1970) 124 C.L.R. 338.

[106]

There is no appeal by way of rehearing to the Supreme Court from a decision of the Commission and this matter came before the Court of Appeal on a case stated on a question of law under s. 37 (4) (b) of the Act. The learned Judges of Appeal who constituted the majority took the view that the facts were capable of supporting a finding that the appellant had failed to provide suitable employment for the respondent and that there was no error in law in making such a finding, although they recognized that a contrary finding also would have been supportable. With all respect, I have reached a different opinion. Before us reliance was placed on the presumption of continuance; it was submitted that the respondent had previously accepted employment when offered by the appellant, and had thereby demonstrated that he was ready, willing and able to work for the appellant, and that it should be inferred in his favour that he continued to be ready, willing and able to work for the appellant if the latter should again offer employment to him. If it were right to give effect to a presumption of continuance the result would in the present case be adverse to the respondent. The Commission's finding, which was not challenged - and is in my opinion unchallengeable - is that the failure of the appellant to provide suitable employment ceased on or about 15th December 1972. It is implicit in that finding, having regard to the circumstances of the case, that from that date onwards the respondent was no longer ready, willing or able to accept suitable employment if it was offered to him by the appellant. If there were a presumption, it would be that this situation continued while the respondent remained away from Sydney, travelling to and from Queensland and then in Port Macquarie. The fact that his solicitors on 18th January 1973 served an application for determination of compensation on the appellant in my opinion is no evidence at all that the respondent was either willing or able to accept employment if it were offered to him by the appellant. Of course, as was put in argument, his intention to reside permanently in Port Macquarie was not immutable; he might have changed his mind and returned to Sydney at any time, but in fact he did not.

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Before

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Judgment (198 paragraphs)

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