JANE VICTORIA CARRIGAN v DARWIN CITY COUNCIL

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA No. DI95/1131 NORTHERN TERRITORY DISTRICT REGISTRY BETWEEN: JANE VICTORIA CARRIGAN Applicant AND: DARWIN CITY COUNCIL Respondent MINUTES OF ORDER JUDGE MAKING ORDER : VON DOUSSA J WHERE MADE : CANBERRA (heard in Darwin) DATE ORDER MADE : 20 MARCH 1997 THE COURT ORDERS THAT:

The order of the Judicial Registrar made on 14 May 1995 be set aside.
Declaration that the employment of Jane Victoria Carrigan was terminated by the Darwin City Council in contravention of s.170DE(1) of the Industrial Relations Act 1988.
The Darwin City Council pay to Jane Victoria Carrigan the sum of $11,400 pursuant to s.170EE of the Industrial Relations Act 1988. Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Court Rules. IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA No. DI95/1131 NORTHERN TERRITORY DISTRICT REGISTRY BETWEEN: JANE VICTORIA CARRIGAN Applicant AND: DARWIN CITY COUNCIL Respondent REASONS FOR JUDGMENT Coram: von Doussa J Place: Canberra (heard in Darwin) Date: 20 March 1997 This is an application to review the decision of a Judicial Registrar dismissing an application under s.170EA of the Industrial Relations Act 1988 (now the Workplace Relations Act 1996) ("the Act") which alleged an unlawful termination of the employment of the applicant ("Ms Carrigan") by the respondent Council ("the Council"). Pursuant to an order of a Judge of this Court the review was conducted on the basis of evidence and exhibits tendered before the Judicial Registrar, supplemented by additional evidence led by each of the parties on the review. On the review Mr Thirlwell who was the Human Resources Manager with the Council when Ms Carrigan's employment was terminated was recalled for further cross-examination by Ms Carrigan; Ms Carrigan was recalled for further cross-examination; and Mr Morgan, the Technical Services Manager with the Council was recalled for further examination and cross-examination. These three people had given evidence before the Judicial Registrar along with several other witnesses who were not recalled. Two new witnesses were called on the review, Mr Gibson who at relevant times was the claims supervisor of the Council's insurer, the Territory Insurance Office ("TIO"), and Ms Simmonds, a pay clerk from the pay section of the Council. Additional exhibits were also tendered. The additional evidence did not raise entirely new matters. It expanded upon matters that had been the subject of discussion before the Judicial Registrar, and greater emphasis than before was given to the question whether Ms Carrigan was appropriately remunerated for periods in April and May 1995. Generally, however, the same issues were explored by the parties on the review as occurred before the Judicial Registrar and, again generally speaking, the primary facts as found by the Judicial Registrar were not challenged. Many of those primary facts were common ground. In some instances however the Judicial Registrar arrived at findings by preferring the evidence of Ms Carrigan to that of other witnesses. The preference was based partly on support given to those findings in other evidence, partly on the probabilities of the situation, and partly on the Judicial Registrar's assessment of the witnesses. Whilst it is the function of this Court on a review to reassess the evidence and to form its own conclusions on matters of fact, where the hearing is conducted on the evidence before the Judicial Registrar, weight should be given to the assessment of witnesses who the Judicial Registrar had the benefit of seeing and hearing: see Cox v South Australian Meat Corporation (1995) 60 IR 293. Whilst three of the principal witnesses were recalled on the review, they each gave more extensive evidence before the Judicial Registrar, and the Judicial Registrar had the benefit of seeing other witnesses who were not recalled. As it happens, from the limited opportunity that I had to observe the witnesses who were recalled, I too would prefer the evidence of Ms Carrigan insofar as it is necessary to resort to an opinion based upon impressions gained whilst witnesses gave their evidence. Moreover, having reviewed the evidence and exhibits, I generally agree with the findings of the Judicial Registrar. There are certain specific findings that were challenged by one or other of the parties where some correction is necessary, and those matters are referred to in the course of the recital of the facts which follows. Ms Carrigan commenced her employment with the Council on 12 January 1990 as a labourer in the engineering department. In late 1991 she left her employment to travel. Her employment was resumed on 12 October 1992 when she entered into a fresh contract of employment. All witnesses speak of Ms Carrigan's high level of skill, and in her conduct of these proceedings she has indicated a high level of intelligence. She genuinely enjoyed her work as a labourer. She was popular with her co-workers including her supervisors. The applicant's classification was as a forklift operator in permanent employment. She was employed as the depot yardie, loading with the forklift and using the backhoe. She undertook a number of other duties. At times from December 1993 she was paid acting leading hand rates. On 7 December 1993 she suffered an injury in the course of her employment when she was clipped in the side by the machinery used in a procedure for changing buckets on the backhoe. As will appear, the injury led to a serious permanent back disability which rendered her unable to continue her yard duties, and required her to be rehabilitated into a clerical or administrative job. Her evidence recounts a long list of perceived difficulties which she encountered over issues of rehabilitation and her return to the workplace. In the result on 7 June 1995 she handed a letter of resignation to her immediate supervisor which, relevantly, read: "I wish to tender my resignation, effective as of the end of working day, the 7th July 1995. I would anticipate being able to complete the bulk of work, I am able to do on Bicenntenial (sic) Park, by this date." That letter was forwarded to the pay section which received it on 14 June 1995. Ms Carrigan continued her employment until 7 July 1995 when it came to an end. On 19 July 1995 Ms Carrigan filed the application which initiated these proceedings. In answer to question 11 on the standard form application which asks "Were you given a written notice of termination?" Ms Carrigan said: "No". "Constructive dismisal (sic)". Ms Carrigan's case throughout has been that she was constructively dismissed. As the Judicial Registrar rightly observed at the outset of her reasons for judgment, the question for decision is whether the cessation of Ms Carrigan's employment can be characterised as a "termination at the initiative of the employer" so as to bring the application within jurisdiction: see Mohazab v Dick Smith Electronics Pty Ltd (No.2) (1995) 62 IR 200 at 203-206. Ms Carrigan alleges that the conduct of the employer in relation to her rehabilitation constituted breaches of express and implied terms of her contract of employment which amounted to a repudiation of the contract. It is convenient to dispose of the allegations based on breach of express terms of the contract of employment before proceeding further with a review of the facts. Ms Carrigan alleges that Division 4 of Part V of the Work Health Act (NT), and in particular s.75A which imposes obligations upon the employer regarding rehabilitation, were expressly incorporated into her contract of employment, along with the provisions of the Municipal Employees (NT) Award. The contract of employment signed by the parties on 12 October 1992 is a short formal document. The relevant provisions on the face of the document provide: "Please note that your salary and conditions are in accordance with the Municipal Employees (NT) Award and that an additional condition of your employment is that you are able to become a member of the Council's Superannuation Fund at the end of three months qualifying service. ... I acknowledge my receipt of this form. I understand, and agree to abide by, the conditions of the NT Municipal Employee's Award and Employment Guidelines contained in this form. I fully understand, should I breach this contract of employment a warning or termination could result." (emphasis added) On the reverse side of the form is printing headed: "CONDITIONS OF EMPLOYMENT - MUNICIPAL EMPLOYEES' (N.T.) AWARD EMPLOYEES." One of the paragraphs under that heading reads: "C. Safety: As per Policy/Safety Manual. Safety clothing is provided in the form of safety footwear coloured shirts and it is obligatory on the employee to wear appropriate clothing and safety equipment." Ms Carrigan tendered as part of her case a separate document headed: "DARWIN CITY COUNCIL SAFETY POLICY". Relevantly the document reads: "The Council's Safety Policy can be summarised as follows: 'We recognise Management's responsibility for providing the safest possible working conditions for our employees to comply with safety rules'. 1. This policy imposes a two way requirement, firstly on employees and also on managers and supervisors: ... 2. All managers and supervisors must ensure that: (i) the statutory requirements laid down by competent authorities are complied with: ... (vii)immediate first aid treatment of any accident is given, and positive measures undertaken to rehabilitate employees suffering from lost time injuries as soon as it is reasonable for them to re-enter the work force on light or alternative duties." In relation to the Work Health Act provisions Ms Carrigan alleges that they are imported as terms and conditions into her contract of employment because (1) the contract itself expressly incorporates "Employment Guidelines contained in this form", (2) there is reference to a Policy/Safety Manual on the reverse side of the form, and (3) the document to which she refers called Safety Policy directs managers and supervisors to comply with statutory requirements. I am unable to accept this argument. The evidence fails to identify the Safety Policy tendered by Ms Carrigan as the Policy/Safety Manual referred to on the reverse side of the contract of employment form. In any event, even if the Safety Policy is the document referred to in the form, and if the reference to the Policy/Safety Manual is one of the "employment guidelines" (which I think is doubtful), the motherhood statement that managers and supervisors must ensure that statutory requirements are complied with does not have the effect of rendering the provisions of the Work Health Act terms and conditions of the contract of employment. The Safety Policy does no more than draw to the attention of employees, managers and supervisors that they have various obligations to fulfil. Insofar as those obligations have a statutory base, there is no reason to import those obligations into the contract of employment as contractual conditions. For the same reason there is no basis for contending that the provisions of the Work Health Act are to be implied as contractual conditions: see Byrne v Australian Airlines Limited (1995) 131 ALR 422. I think Ms Carrigan's argument is on stronger ground in relation to the Municipal Employees (NT) Award. In my opinion the terms of the contract of employment set out above do have the effect of making the Award conditions, as they exist from time to time, contractual conditions. The relevant clause of the Award upon which Ms Carrigan relies is clause I.5 of the 1993 Award which relates to the inspection of personnel files. In particular clause I.5(a) provides that all records reports and documents relating to the employment of persons covered by the Award shall be made available for inspection by the individual employee concerned on request. Ms Carrigan made a number of requests to inspect records relating to her employment during 1995, and at trial she identified several which were produced in the course of discovery that had not been shown to her in response to these requests. Without going through the documents one by one, it suffices to say that although several of them may be documents that fall within the terms of the Award the Council's failure to produce them in response to the request is, in my opinion, a matter of trivial significance that could not assist Ms Carrigan in establishing conduct by the Council that could be taken as evidencing an intention not to be bound by the contract. Moreover the failure to produce the documents for inspection was not conduct known to her at the time, and could not have influenced her decision to hand in a letter of resignation on 7 June 1995. Insofar as Ms Carrigan's case rests upon breaches by the Council of express terms of the contract of employment, I consider it is not established. The alternative limb of Ms Carrigan's case is that the Council was in breach of an implied contractual obligation that the employer would not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee. As a Full Court of this Court observed in Burazin v Blacktown City Guardian Pty Ltd (as yet unreported, 13 December 1996) at page 17 there is ample English authority for the implication of such a term, in particular Woods v WM Car Services (Peterborough) Limited [1982] ICR 693, Bliss v South East Thames Regional Health Authority [1985] IRLR 308 and Malik v Bank of Credit and Commerce International SA [1995] IRLR 375, which are decisions of the Court of Appeal. In Woods' case, before the Employment Appeal Tribunal (reported at [1981] IRLR 347) Browne-Wilkinson J (as he then was) in delivering the reasons of the Tribunal said, at paragraph 17: "In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84. To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the Tribunal's function is to look at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it: see BAC Ltd v Austin [1978] IRLR 332 and Post Office v Roberts [1980] IRLR 347. The conduct of the parties has to be looked at as a whole and its cumulative impact assessed: Post Office v Roberts (supra) paragraph 50." That decision was upheld in the Court of Appeal, and the principles stated by Browne-Wilkinson J have been frequently applied in England in subsequent cases. I propose to apply those principles in the present case. In Mohazab v Dick Smith Electronics Pty Ltd a Full Court of this Court discussed the meaning of a termination at the initiative of the employer. At 205-206 the Court said: "In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd ('David Graphics'), (Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ). His Honour, at p3, referred to the situation of an employee who resigned because 'he felt he had no other option'. His Honour described those circumstances as: '...a termination of employment at the instance [of] the employer rather than of the employee'. And at p5:- 'I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment'." Dealing with the facts of the case the Court went on (at 206): "On the finding of fact that the respondent directed the appellant to resign or have the police 'called in', it is our view that what occurred was a termination of employment at the initiative of the employer. When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee's initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee." In my view, it is in accordance with the approach of the Full Court to hold that if there has been a constructive dismissal of Ms Carrigan arising from a breach of the implied term as to trust and confidence, the termination of her employment was at the initiative of the employer for the purposes of the Act. Moreover it would follow in the circumstances of this case that there was no valid reason of the kind referred to in s.170DE of the Act for the termination, and Ms Carrigan would be entitled to remedies appropriate to a contravention of that section. Whilst I have held that the rehabilitation provisions of the Work Health Act do not operate as contractual provisions between the parties, I consider that Ms Carrigan is correct in her submission that a failure on the part of the Council to fulfil its rehabilitation obligations under the Work Health Act could amount to conduct likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Whether there was a failure to fulfil those obligations, and if so, whether the failure in the circumstances of the case was likely to have that effect are questions to be decided. The conduct of the Council must be looked at as a whole and its cumulative impact assessed. Relevantly s.75A of the Work Health Act, which came into force on 1 January 1992, provides: "75A. EMPLOYER TO ENDEAVOUR TO FIND OR ASSIST INJURED WORKER TO FIND SUITABLE EMPLOYMENT, &c. An employer liable under this Part to compensate an injured worker shall - (a) take all reasonable steps to provide the injured worker with suitable employment or, if unable to do so, to find suitable employment with another employer; and (b) so far as is practicable, participate in efforts to retrain the worker." Section 75 of the Work Health Act which specifies the purpose of the division defines "rehabilitation" to mean the process necessary to ensure, as far as is practicable, having regard to community standards from time to time, that an injured worker is restored to the same physical, economic and social condition in which the worker was before suffering the relevant injury. In Maddalozzo v Maddick (1992) 84 NTR 27 at 35 Mildren J said, speaking of the Work Health Act: "Unlike the former Act, an employer whose employee suffers a compensable injury is required by the Act to take a real interest in his employee's welfare. Section 61 of the Act, now repealed and replaced by s 75A of the Act, requires an employer to provide suitable employment to an injured worker or find suitable work with another employer for him and to participate in efforts to retrain the employee. The focus of the Act covers a wide range: Pt IV of the Act deals with occupational health and safety, and there is also a heavy emphasis on the rehabilitation of injured workers, not merely on providing a scheme for mere monetary compensation. Thus the Act seeks to prevent injuries occurring, as well as to rehabilitate those who are injured and to provide for monetary compensation. The shift of emphasis, when compared with the former Act, is apparent when it is realised that the former Act provided solely for compensation for injured workers and for a compulsory insurance scheme to make sure that the compensation would be paid. Under the former Act, an employer could ignore the welfare of his injured worker and leave the whole problem, including the problems associated with compensation, to his insurers. This is plainly no longer the case." Ms Carrigan contends that the way in which she was treated by the Council indicates that the Council embarked upon a deliberate course designed to force her to leave her employment after she was injured, or alternatively that the Council persistently neglected to comply with its obligation under s.75A, and that the employer and employee relationship was further damaged by repeated discrepancies in amounts of pay during 1995, and by other events which at the least indicated an attitude of indifference to her rights and feelings. Against this background I return to the facts. Ms Carrigan did not report the accident of 7 December 1993 immediately as she did not want her colleague who had been operating machinery to be blamed for the incident. She attended a health clinic but her pain gradually became more severe. The pain began to make the performance of some of her duties difficult. She saw Dr Barclay, and she was referred for physiotherapy. By early April 1994 she was experiencing severe pain and could not continue working. Her general practitioner prescribed total bed rest for a period. On 7 April 1994 Ms Carrigan lodged a compensation claim form in respect of her incapacity. Initially liability was denied on the Council's behalf by TIO. Ms Carrigan is critical of that denial, but when regard is had to the description of the incident contained in the claim form which stated simply "lower back pain due to sitting for long periods in a car", the initial denial is hardly surprising. Liability was later accepted on 11 May 1994. After rest Ms Carrigan returned to work for four hours a day on light duties. She was put on her base rate of pay without the leading hand rate which she thought should have continued. She made many approaches to the then project officer for Human Resources, Mr John Hevey. Eventually on 30 August 1994 she was restored to leading hand rates. The light duties on which Ms Carrigan was placed still involved substantial bending and proved difficult for her. Her condition deteriorated. From 31 May 1994 to 24 June 1994 she was an inpatient at the Darwin Public Hospital. While she received informal visits from many supervisors and workmates including one from Mr Morgan, she is critical that she was not visited in any formal capacity by the Council before, during or after her hospitalisation to offer assistance, help or planning about her future rehabilitation. On her discharge from hospital Ms Carrigan moved into a motel room associated with the hospital for intensive physiotherapy. She contacted Mr Morgan and talked to him about her future, expressing fears that she could end up in the "too hard basket", or as an "office wall flower". By this time Ms Carrigan was suffering depression. Her general practitioner gave evidence saying that she was emotionally devastated by her condition which was preventing her return to work. On 5 August 1994 Ms Carrigan commenced a graded return to work, initially working two hours a day on light duties. She also began a bridging course at the University to prepare for possible retraining. The Northern Territory Rehabilitation Service ("NTRS") had been engaged by the TIO to assist with a rehabilitation programme, and Ms McDonald, an occupational therapist was assigned to the case. A return to work programme was to be devised once the TIO had obtained a medical report from the specialist instructed by it, Dr Millons. His report was to enable the TIO and the Council to identify suitable duties and to draw up a formal rehabilitation programme if appropriate. At a meeting involving Ms Carrigan, Ms McDonald, an officer of TIO and Mr Hevey on 3 August 1994 Ms Carrigan was encouraged by Mr Hevey to consider options that could be open to her, and to put forward a proposal for her rehabilitation. Dr Symonds gave evidence that Ms Carrigan demonstrated a positive attitude towards her rehabilitation. Dr Symonds hoped that she could be rehabilitated to labouring work, but by September she thought this was not possible. Ms Carrigan was examined by Dr Millons on 7 September 1994. He considered that a work related aggravation of degenerative changes in the lumbar sacral disc were still in train, and commented: "Even if her symptoms could be alleviated I think it would be perhaps more prudent that she does not go back into heavy manual work. She seems a bright, intelligent person and her thoughts in regard to doing an Associate Diploma in Occupational Health & Safety, an area that interests her, would perhaps seem a reasonable and very appropriate way of redeploying her in the work-force." Ms Carrigan had herself identified training in occupational health and safety as an avenue for her redeployment. She considered she could be usefully employed by the Council as a liaison officer between management and outside workers. This idea was discussed by her with a rehabilitation counsellor, Ms Louise Bilato at NTRS who prepared a detailed retraining plan which she proposed for Ms Carrigan. That plan had been submitted to the TIO on 6 September 1994, and a copy of the proposal was made available to the Council. Ms Bilato suggested a meeting be arranged between representatives of the Council, NTRS and Ms Carrigan to further the proposal. No interest was shown by the Council in the proposal. Ms Carrigan was upset that she did not receive a timely response to it. After agitation by her, she had a meeting with Mr Hevey on 28 September 1994. She gave evidence that the meeting was quite distressing. She was told that her proposal would not be considered until a new Human Resources Manager was appointed. Such a position had been advertised, but no appointment was imminent. She was told that no long term rehabilitation plan would be set in place until after she had again seen Dr Millons. A further examination by him was anticipated in December 1994. Ms Carrigan continued her light part-time work. In early October her condition worsened, and her hours reduced to two hours twice a week. On 12 October 1994 she became totally incapacitated, partly from depression and partly from pain from a nerve entrapment which was the subject of an operation on 18 October 1994. In October 1994 Ms Carrigan was reclassified as part of an Award translation process. She was disappointed with her reclassification. She felt that because of her absences from work she had not been fully informed during the Award translation process. Accordingly on 9 October 1994 she wrote to Mr Hevey seeking to have her reclassification reviewed. She was told that her application was late and reconsideration was refused. She was shocked at the refusal given her absences from the workplace due to treatment of her injury. Eventually this decision was revoked and on 6 May 1995 after an interview with a classification panel she was reclassified to the position of a plant operator and her remuneration was retrospectively adjusted. From October 1994 when she sought her reclassification, she considered there were repeated discrepancies in her wages and compensation payments. She had frequent contact with the pay office. Some of the discrepancies were rectified to her satisfaction, and some were not. Ms Carrigan gave evidence that in the latter part of 1994 she made a number of enquiries about the accrual of her leave and other entitlements in consequence of her incapacity. The enquiries were directed to Mr Hevey which she said was of no help to her at all. Mr Hevey left the employment of the Council in November 1994. Matters concerning her rehabilitation, her outstanding enquiries, and the proposal for retraining as a liaison officer were left for the consideration of the new Human Resources Manager when appointed. Dr Symonds gave evidence that she found it very difficult during this period to have a representative of the Council take responsibility for the management of Ms Carrigan's rehabilitation. No one from the Council contacted her regarding the rehabilitation, then or at any stage. She had to initiate all contacts. Mr Morgan, who it seems had the closest contact of any of the Council's managers with Ms Carrigan, gave evidence which tended to support the lack of effective responsibility for her rehabilitation. He said in evidence that he thought Mr Hevey had been attending to Ms Carrigan's needs. This was not the case. By late November 1994 Ms Carrigan was recovering from her operation, and Ms McDonald enquired from the Council about the possibility of her again commencing a graded return to work. She contacted Mr Thiele, the operations engineer, who issued a memorandum on 29 November 1994 to all department heads asking if there were a position for Ms Carrigan for 2 to 4 hours per day graded return to work. On 2 December 1994 Ms Carrigan was re-examined by Dr Millons. He reported to the TIO who in turn provided the report to the Council. Dr Millons in the course of his report observed "Miss Carrigan's boss has nothing for her to do back at the depot. Her LMO has told her to wait a bit longer. She is becoming very upset because no one seems to be able to commit themselves to what she can and cannot do and should and should not do. … I would strongly recommend that she does move into areas that are less demanding than her work on the Council was and her proposed diversion into Occupational Health & Safety would seem a reasonable place to start. … In answer to your specific inquiry, it would seem that work-related aggravation of her low back problems has not yet completely ceased but she is fit to return to at least part-time, semi-sedentary work in the first instance. I would have expected her condition to be a lot better now than it is. Sometimes aggravation of degenerative change does take months to settle down and hers is certainly taking its time. The prognosis is guarded and continuing problems would appear inevitable." Ms McDonald again contacted Mr Thiele who informed her that there was no work available in any department with the Council. On the same day the orthopaedic surgeon who had been treating Ms Carrigan, Mr M Fleming, re-examined her and gave his opinion that she was fit enough to return to light duties. On 17 October 1994, as Ms Carrigan had been on compensation for 26 weeks, her weekly compensation dropped from normal weekly earnings to 75 per cent thereof in accordance with the provisions of s.65 of the Work Health Act. Ms Carrigan found it difficult to meet her commitments on the reduced payments. For the pay period 21 December to 3 January 1993 the Council condensed the various allowances which she received, and paid an all inclusive hourly rate. She was not advised in writing about this, nor was she informed how the amount was made up. Ms Carrigan points to a breach of regulation 132B of the Industrial Relations Regulations. In itself I do not treat that breach as of significance in the overall case, but it was for Ms Carrigan another instance of dissatisfaction about the Council's attitude to the payment of her entitlements during compensation. She feels that the discrepancies which occurred in her pay took place in such a systematic way as to amount to victimisation. As no rehabilitation programme was being developed by the Council, on 19 December 1994 Dr Symonds telephoned the Town Clerk to arrange a meeting, which occurred on 29 December 1994. Ms McDonald prepared a summary of rehabilitation to date for the meeting of 29 December 1994. This lengthy document was given to those who attended the meeting, namely Ms Carrigan, Dr Symonds, Ms Wall from the TIO, Mr Morgan from the Council and Ms McDonald from NTRS. That summary included notes to the effect that Mr Thiele had advised Ms McDonald in December 1994 that the Council had no work for Ms Carrigan, and that the Human Resources section was unstaffed at present, a situation which would not be rectified within the next few months. Attached to the summary were a list of "issues to be discussed and resolved". This part of the document contained statements that: "•There is no point placing Jane in a position where she will not gain skills and in which she has no interest and aptitude. She should be in training in an area where (a) no other council employee on rehabilitation is training and (b) the tasks that she is doing will benefit the DCCs corporate plan and (c) she will learn skills that will make her competitive for positions either within DCC or outside. "•Jane has experienced a considerable amount of frustration with the payment of her workers compensation benefits and would appreciate clarification of her entitlements." The document concluded with a suggestion that when the Human Resources staffing situation was rectified in the Council, consideration be given to the original Bilato proposal. At the meeting Mr Morgan confirmed that the Council did not have a position available, and said that no funding for a position was likely to be available, at least in the next 12 months. Ms Carrigan made it clear that she was keen to return to work. She was still keen to pursue the Bilato proposal and to that end she proposed to enrol in a diploma course in occupational health and safety in February 1995 at her own expense, the course being a part-time one that would not interfere with her return to work. She sought the support of the Council in her proposed study, but that was not forthcoming. She also asked if the Council would consider "topping up" the 25 per cent gap in her weekly payments as she was having financial difficulty. She said that she would put that request in writing. She later did, but it was refused. She now acknowledges that she had no legal entitlement to the top up, but was hopeful that the Council would see fit to assist her, as she believes it did in relation to two other employees who had been on long term compensation (a fact which the Council disputes). Ms McDonald enquired about Ms Carrigan's remuneration and was informed that 75 per cent of the normal weekly earnings would be paid on a graded return to work and that Ms Carrigan would only receive full pay when she was back at work full time. At the end of the meeting Mr Morgan asked Dr Symonds if he could speak with her in private. This request surprised others present at the meeting. Dr Symonds gave evidence that Mr Morgan told her that the Council were really looking at paying out Ms Carrigan so she could "get on with life" rather than redeploying her. Dr Symonds reported this statement to Ms McDonald and Ms Carrigan. Mr Morgan gave evidence that he merely asked Dr Symonds whether Ms Carrigan would be interested in being paid out, and denies that he would have said that the Council had any particular attitude to the issue of paying out Ms Carrigan. The Judicial Registrar preferred the evidence of Dr Symonds noting that the doctor had made a particular note of this part of the conversation. It was not suggested before me that the Judicial Registrar should have taken a different view of the evidence. Indeed I think that view gained further support from the evidence from Mr Gibson given on the review about a meeting two weeks later. The only definite proposal at the meeting on 29 December 1994 was made by Ms McDonald who suggested that whilst Ms Carrigan was still in Darwin (her home being in Batchelor) she should undertake a keyboard skills course to increase her computer skills. Ms Carrigan agreed, and attended the course in the latter part of January 1995. As no rehabilitation programme was developed at the meeting, TIO and Mr Morgan agreed to meet again in two week's time. As the meeting date approached Ms McDonald was told by TIO that the Council did not wish her to attend, and neither she nor Ms Carrigan did so. Mr Gibson was at the meeting which was attended by Mr Morgan and Mr Newton, the Manager of Corporate Services at the Council. The rehabilitation of Ms Carrigan was not the subject of the meeting, rather Mr Newton and Mr Morgan wished to be informed generally about the operation of the Work Health Act as Mr Hevey had left. They said, in effect, that they did not understand the Act and were trying to ascertain the Council's obligations under it. Enquiry was made by them about the ability of the Council to pay out workers with long term disability. It was explained to them that the new Act lacked settlement provisions, and imposed rehabilitation obligations. On 16 January 1995 Ms McDonald, a representative of the TIO and Ms Carrigan met. Ms Carrigan was informed that the Council was emphatic that it had no suitable work and that a decision had been made to await Ms Carrigan's re-examination by Dr Millons in March 1995. In the meantime TIO did not propose to sanction further rehabilitation or training. On the pay advice slip received by Ms Carrigan on 19 January 1995 in respect of the period from 4 to 17 January 1995 she was no longer described as an employee "general trade stream 3" (being her classification) but as being "permanent worker's compensation". The reason for this change was never explained to her, and has not been explained to the Court. In light of the employer's continuing advice to her that no suitable work was or would become available, and in light of Mr Morgan's statement that the Council were keen to pay her out rather than redeploy her, that change in her apparent status must have been an alarming one for her. On 17 January 1995 Ms Carrigan arranged to meet with Mr Morgan. When she arrived she found Mr Newton was also present. It seems that the meeting covered old ground for the most part. Ms Carrigan again sought a return to work. She was informed that the Council was not prepared to do anything until she saw Dr Millons again in March, that she would not get a job in the work health area in the Council, that if she wanted to retrain in an area useful to the Council she should consider being an accountant or librarian, and that she would have to stand on her own merits and apply for jobs of that kind within the Council alongside of others. In the course of the meeting however Mr Morgan mentioned that perhaps there might be some work she could do in relation to a parks project although he had doubts whether she would be able to do it. The parks project had been something in contemplation for some time, and would involve eventually the preparation of management plans for each of some 220 parks under the control of the Council. There was no current budget provision to employ a Council employee on preparatory work in the project, although there was a provision for a consultant to give advice. Mr Morgan considered that part of the consultancy allowance could be applied to creating a position for Ms Carrigan. In the long term he thought that the preparation of the plans would take some 10 years and would require input from a variety of experts. However in the short term Ms Carrigan could be employed in obtaining maps and particulars of the features and histories of the parks. This possibility was developed by Mr Morgan following the meeting with TIO on 13 January 1995. Notwithstanding Mr Morgan's comment to Ms Carrigan on 17 January 1995 that he doubted her ability to perform the work, a proposed schedule of works for Ms Carrigan was drawn up by him and submitted to the TIO on 27 January 1995 for consideration. The proposal put by Mr Morgan to TIO was an offer of a 6 to 10 week project for Ms Carrigan to be funded by TIO (a proposal, it will be noted, that would not call on the consultancy budget). The proposed schedule of works was submitted to the NTRS and Dr Symonds who gave it their approval. On 31 January 1995 the Council advised Ms Carrigan of the project and informed her that it was anticipated to last for 6 to 10 weeks. This project was intended as an interim measure to carry Ms Carrigan through until the time of Dr Millons' next examination. On 31 January 1995 Ms Carrigan reported for work. Mr Morgan explained the proposal to her. Initially she was to work 4 hours on 3 days per week then 4 hours for 5 days per week. That is what happened, commencing on 3 February 1995. From Monday 13 February 1995, apart from a few absences, Ms Carrigan worked 4 hours each work day through until Friday 31 March 1995. In the meantime, on 6 March 1995 a Human Resources Manager commenced employment with the Council. He was Mr Thirlwell. On 2 March 1995 Ms Carrigan had applied for a job as a safety and training officer with the Council, although she acknowledges that she did not have the qualifications required. On 7 March 1995 she had her first meeting with Mr Thirlwell who informed her that she was not eligible for the position. Ms Carrigan took the opportunity to enquire about study leave pursuant to the provisions of the Award to enable her to pursue her study for the Associate Diploma in Work Health and Safety. She was informed that this would be considered only when she returned to work full time. On 13 March 1995 Dr Millons again examined Ms Carrigan, and and his report written that day contained the following passages: "After a fight she has finally got back to some light, part-time office based work and seems to be coping with that and enjoying it. I would accept that it seems unlikely that her back will recover in the foreseeable future to the point where she could go back labouring and under the circumstances it would seem more appropriate that she be diverted along a non-manual pathway. She is keen to do the Occupational Health and Safety Course and I think she should be encouraged in that regard since it seems to me a reasonable way to go and I am quite certain that there would be work out there for her in that field, it seemsingto be a growth industry. ... Hopefully now that it has been indicated that her problem is likely to be chronic and continuing, long term vocational rehabilitation can proceed. It would certainly relieve a lot of Miss Carrigan's frustration and help reinforce her motivation by removing frustration (sic) that have surrounded this matter." On 24 March 1995 Mr Thirlwell wrote to Ms Carrigan saying that discussions had been held with the TIO to facilitate the commencement of a rehabilitation programme for her. The programme's objective was to return her to full employment in as quick a time as possible. The letter continued: "Hence it is being proposed to retrain you for an administration career within Darwin City Council. You will be trained in this field by an outside provider. The training will also include the use of a wordprocessor and appropriate software in common use within Darwin City Council." That letter reflected proposals made by the NTRS based on Dr Millons' report that Ms Carrigan should be provided with training courses with the Darwin Computer Academy on three computer programmes. The courses were half day ones which she undertook at the end of April, 1995. Apart from this initiative however it appears that no steps were taken to design and implement a structured rehabilitation programme for Ms Carrigan. There was no programme that had set goals. There was no programme which gave any indication how or when, if at all, Ms Carrigan was to be rehabilitated into a clerical or administrative position. There was no programme that gave any real assurance to her that this was likely to happen. On 3 April 1995 Ms Carrigan commenced to work full time on the parks project as she had been certified fit for full time duties in that employment. On 5 April 1995 a meeting was arranged at which were present Mr Thirlwell, an officer from TIO, Ms McDonald and a union representative. Ms Carrigan is emphatic that the meeting was arranged by her to discuss her wages as she had been told that she would continue to receive only 75 per cent of her normal weekly earnings even though she had gone back to work full time. The question of the appropriate payment to Ms Carrigan upon her return to full time work became a major issue on the review before me. Ms Carrigan contended that it had always been a major issue to her. However the Council disputed this fact and suggested that the wage issue was a matter of recent invention by Ms Carrigan. The Council contended that the purpose of the meeting had been to discuss a rehabilitation programme. I reject the submission that the importance of the wages issue is a matter of recent invention by Ms Carrigan. The transcript indicates that it was an issue at the hearing before the Judicial Registrar. It is not a matter that assumed prominence in the reasoning of the Judicial Registrar, probably because the Judicial Registrar misunderstood a significant aspect of the evidence. At the conclusion of the reasons for decision the Judicial Registrar, after noting that for at least six weeks Ms Carrigan was not paid the correct pay (which refers to periods in April and May 1995), then dismissed this as a significance consideration saying that Ms Carrigan was restored to the correct rate of pay in the pay slip for 25 May 1995 and was notified that she would receive back pay. It is the case that full wages were paid on 25 May 1995, but the advice in relation to back pay did not concern the six week period in dispute for April and early May 1995. It concerned the back pay due on the successful review of her reclassification - a quite separate issue. The fact that a union representative was present at the meeting on 5 April 1995 suggests to me that a pay issue was a central matter of concern to Ms Carrigan. Further, the file notes of Ms McDonald for 24 and 27 March 1995 when the meeting on 5 April 1995 was being arranged indicate that the question whether Ms Carrigan would be paid wages by the Council, or would receive only the rate of compensation hitherto paid by TIO, was a central issue. I consider the evidence shows that the meeting of 5 April 1995 had two purposes. One was to endeavour to plan a rehabilitation programme, and the other was to sort out the remuneration which Ms Carrigan and Ms McDonald considered should be paid by the Council once Ms Carrigan returned to full time work. At the meeting of 5 April 1995 Ms Carrigan asserted her view that as she had returned to full time work she was entitled to be paid her base rate, although perhaps not her leading hand entitlement as she was not fulfilling that duty. On the other hand Mr Thirlwell continued to assert a position that he had expressed to Ms McDonald the preceding week, namely that Ms Carrigan should remain on the compensation rate (i.e. 75 per cent of her normal weekly earnings) until she succeeded in obtaining a permanent position in the Council on her own merits through the normal interview process. In the course of the meeting the proposed computer training courses with the Darwin Computer Academy were formally confirmed. Ms Carrigan's request for study leave was again refused. Nothing further was done towards establishing a rehabilitation programme. It was reiterated that the parks programme was a temporary measure but Mr Thirlwell said that he would enquire with Mr Morgan whether it was "productive" such that the Council would be justified in paying a wage. On 13 April 1995 Dr Symonds wrote to Mr Thirlwell pointing out that Ms Carrigan was now working at full hours in the project job assigned to her, that she was fit to continue those duties full time or to be transferred to another full time position, and that she was therefore fit for full time pay. On 18 April 1995 Mr Thirlwell sent a memorandum to Mr Morgan with the following enquiry: "In light of her present role in your Department and her fitness to return to a full time non labouring position, is it possible to now have her performing the role 7.15 hours per day until we find her a permanent full time position? If she returns for 7.15 hours per day, it would possibly mean Council would then be responsible for the full day's salary. I would like to discuss this matter with you at your convenience." On 21 April 1995 Ms Carrigan rang Mr Thirlwell to enquire about her entitlement to wages. She says on this occasion Mr Thirlwell lost his temper with her, raised his voice, and told her that she was ungrateful for the efforts the Council had made for her. In his evidence Mr Thirlwell said that he thought that the Council had contributed significantly to Ms Carrigan's rehabilitation, and agreed that there was animosity at this discussion. Mr Thirlwell's attitude is surprising as it is plain that the Council had no proper rehabilitation plan in place, and was telling Ms Carrigan that the parks project was temporary, and not a proper job. On the review, Ms Carrigan suggested that Mr Thirlwell deliberately adopted an antagonistic attitude towards her because she was a long term compensation victim, and he was attempting to squeeze her out of her employment. I do not accept that submission. I do not think it is possible or helpful to attribute blame to one side or the other for the disagreement which occurred on this occasion, although it should have been apparent to Mr Thirlwell that Ms Carrigan was in a very unhappy frame of mind, and urgently needed to be reassured about her future. He should have appreciated the urgent need to put in place a proper rehabilitation programme to provide that assurance. Ms Carrigan continued to work a full day each work day. Mr Morgan's evidence indicates that he considered that Ms Carrigan was carrying out useful and productive work, indeed was making good progress with the project. Notwithstanding her requests to be paid her normal wage, she was paid the compensation rate on the pay date of 13 April 1995, namely $719.40 gross per fortnight. However on the next pay date on 27 April 1995 the gross amount was, without explanation, reduced to $701.40. Not only was she now working a full week, but she was paid less than the compensation rate. She endeavoured to obtain an explanation for the drop from the pay clerk, but found the explanation quite unsatisfactory. Ms Simmonds' evidence indicates that she was endeavouring to explain to Ms Carrigan that the amount paid coincided with a pay sheet she had received from Ms Carrigan's supervisor. The explanation failed to address the cause of concern which was the drop in hours for which payment was made. Ms Simmonds did not have the explanation for that. With the benefit of hindsight, the problem arose because there was no officer of the Council acting as a rehabilitation case manager, and no one with a working understanding of the Work Health Act and the rehabilitation process responsible for sorting out remuneration issues associated with Ms Carrigan's return to a full time position in the work place. From Ms Carrigan's viewpoint, she was left with a reduced rate of remuneration and no satisfactory explanation. These things triggered another bout of reactive depression. She consulted Dr Symonds who issued a medical certificate saying that Ms Carrigan was suffering reactive depression "which the worker claims was caused by seeming inability of employer to provide her with gainful employment". Ms Carrigan was certified unfit for work from 27 April to 5 May 1995. The certificate was given to TIO who brought it to the attention of the Council and stressed the need for the Council to identify suitable work, and to attend to the pay issue. Mr Thirlwell maintained his position that the Council should not pay more than the compensation rate of 75 per cent of normal weekly earnings. On the following pay date, 11 May 1995, the rate of pay dropped even further to $674.40, again without explanation. Ms Carrigan was away from work at the time that pay slip was received Even on Mr Thirlwell's position Ms Carrigan should have received $719.40 per fortnight. Part of the second shortfall may have been made good in the following pay period as the Council now asserts, although on my calculations for that pay period any payment above that fortnight's entitlement was minimal. No adjustment was ever made in respect of the period prior to 27 April 1995 for the weeks that she was working full time on the parks project. On 4 May 1995 Mr Thirlwell wrote to Ms Carrigan saying that he had discussed with Mr Morgan: "…the possibility of you being employed for 7.25 hours per day on the project work you are presently performing … under the Rehabilitation Programme. He has informed me that he is able to employ you on a 7.25 hours per day basis, five days per week, on the project until the end of the financial year 1994/95. You will receive 100 per cent of your normal hourly rate you received prior to your injury. … This is not to be considered an offer of permanent appointment to the position. You are still under rehabilitation and you will need to apply for any permanent position that becomes available and which your medical condition allows you to perform." The last paragraph failed to provide the reassurance that a proper rehabilitation programme would have provided. Whilst Mr Thirlwell in this correspondence assumes that Ms Carrigan was "under the Rehabilitation Programme", in fact there was no proper rehabilitation programme in place. The parks project work was temporary work until a rehabilitation programme was prepared. It was not supervised as a rehabilitation programme. When Mr Morgan did speak with Ms Carrigan about her work, his interest was about the feasibility, design and planning of the project, not about Ms Carrigan's rehabilitation. Notwithstanding Mr Thirlwell's letter of 4 May 1995 to Ms Carrigan offering her employment at full wages, on 15 May 1995 Mr Thirlwell was still arguing with Mr Gibson at the TIO that the Council had an arrangement with TIO that TIO would pay compensation for the duration of Ms Carrigan's partial incapacity. Mr Gibson denied this, saying that the "agreement" (made in late January 1995) was only until the medical status of Ms Carrigan was clarified in March 1995 with the receipt of Dr Millons' report. Mr Gibson pointed out that the continuing position of Ms Carrigan thereafter was abnormal because the Council could not or would not identify suitable alternative duties, and that the Council should be paying wages, with TIO only paying top up if the wages fell below normal weekly earnings. Mr Gibson noted in his records at that time "I think he will pay wages but he did not actually state this". This conversation indicates that even after the offer of employment at full wages was made to Ms Carrigan, Mr Thirlwell was still resisting the appropriate implementation of the Council's obligations under the Work Health Act. When Ms Carrigan returned to work following her absence on reactive depression, she did so for four hours per week during the week commencing Monday 15 May, and resumed full time work on Monday 22 May 1995. During this period Ms Carrigan discovered a confidential letter pertaining to her compensation claim being recycled through the office printer. She was assured it was an error and would not happen again, although on another occasion after she had given notice she found medical reports pertaining to her being recycled through the office printer. It is regrettable that confidentiality was not observed, but I do not treat these two instances of office inefficiency as relevant to the issues that must be decided. It had been emphasised to Ms Carrigan that she was required to apply for jobs and win them on her merits. She had been told repeatedly by managers in the Council that the parks project was not a "proper job". She had applied for a job as a part time clerical officer in the library on 3 April 1995, and for a job as a library information officer on 12 April 1995. On 22 May 1995 she applied for a temporary job as Information Officer, Building and Maintenance. This was a job she had done on other occasions. It was available for six weeks as the present incumbent was to go on holiday. She was anxious to obtain this job. It would have taken her back into her old area of employment, and she was also concerned that work in the parks project would run out. On 26 May 1995 she also applied for a job as Administrative Officer, Contracts. On 2 June 1995 Ms Carrigan was called in for interview along with one other employee, for the position of Information Officer, Building and Maintenance. She is highly critical of the way in which the interview was conducted by Mr Thirlwell. It was very short, and questions asked of her were pointed towards her physical disability. Shortly after the conclusion of the interview she was advised that she had not got the job. It is unnecessary to explore the nature and extent of her complaints about the interview. They became the subject of a complaint by her to the office of the Anti-Discrimination Commissioner of the Northern Territory which she made on 13 June 1995. Witnesses called for the Council agreed that the Council's own interview policy was not followed in about five respects. More significantly, however, there was no policy reason requiring there to be an interview to fill the short term temporary position. Ms Carrigan was disappointed that she had not got the job, but did not consider her failure to be the end of the road. The interview was on a Friday. On the following Monday morning, 5 June 1995, Ms Carrigan was surprised to be informed by Mr Morgan's secretary that he, as departmental manager, had not made any final decision about the Information Officer's job. Mr Morgan then asked her how she would feel about taking the secretarial job which would be left vacant by the other applicant if the other applicant were appointed to the Information Officer's job. She said she was prepared to give it a go but pointed out that she was not a trained secretary, and as secretary to the Parks' Manager (the position she would fill) she would not be sufficiently proficient to deal with the urgent demands of the job likely to arise because the Parks Manager was about to retire. After lunch on 5 June 1995 Ms Carrigan learned that after Mr Morgan had spoken to her, he spoke to the other applicant and she had rescinded her application. Ms Carrigan, and the office generally, was given no information why the other applicant had withdrawn. The following day, 6 June 1995 Ms Carrigan went to see Mr Crawford, a senior supervisor in the Technical Services Department who had at one time been her immediate supervisor. She treated him as a friend, and a fair person, generally concerned about the employees. He had been on the interview panel on 2 June 1995. Ms Carrigan was concerned about some of the irregularities that had occurred in the interview process. In the course of the discussion Mr Crawford indicated to her that he and others felt that by complaining about the interview Ms Carrigan had "shafted" the other applicant, causing her to lose the appointment. In reality, that was an unjustified suggestion. The other applicant had withdrawn her application when Mr Morgan pointed out the difficulties that would arise if she were to leave the position of secretary to the Parks Manager at that stage. The withdrawal had nothing to do with any conduct on Ms Carrigan's part. Ms Carrigan found the response of Mr Crawford extremely distressing and depressing. He said she complained about everything, and his statements appeared to Ms Carrigan to reflect the attitude which she believed Mr Thirlwell adopted towards her, namely that she was negative, moody, complaining, and the cause of difficulties in her rehabilitation. She was devastated by the speech. She felt her position within the Council had been so thoroughly undermined that she could not accept the position of Information Officer even if it were offered to her. Ms Carrigan considered that the attitude of the employer to the interview, and to her following the events of 5 and 6 June 1995, was the final straw. She considered the treatment she had received from the Council evidenced a disregard by it for its responsibilities towards her rehabilitation. She considered she had no alternative but to leave. She felt she had been thwarted at every turn in her efforts to get back to work. She had come to the conclusion that the Council did not really want her to be there. Before her discussion with Mr Crawford, Ms Carrigan had consulted the NTRS saying she was very confused about the Council's attitude towards her, and upset about the interviewing process she had just been through. She said she proposed to see Mr Crawford to try and find out from him why the Council seemed to be so opposed to assisting her to get a suitable position, temporary or permanent. After the meeting with Mr Crawford Ms Carrigan contacted Ms McDonald again and reported her extreme distress at the outcome of the discussion with Mr Crawford who had not been supportive. She said that she could not see how she could get anywhere with the Council in terms of continuing to work there, and that she intended to submit her resignation. After handing in her notice of resignation on 7 June 1995 to her immediate supervisor, she spoke with Mr Morgan. The discussion was apparently not a long one. Mr Morgan knew she was frustrated with the Council. She said that she had reached the point where she could not continue to work with the Council. She was very unhappy about the outcome of her application for the Information Officer's job. Mr Morgan took no steps towards dissuading her from resigning. Ms Carrigan explained that she did not leave her employment forthwith on 7 June 1995. She had always given reasonable notice to employers and had done so with the Council on a previous occasion. She thought it was fair to give them warning, and to complete what she was doing on an aspect of the parks programme. She was also in urgent need of new tyres on her car which her earnings over the period of notice would cover. She worked out the period of notice. There was some suggestion in the course of her trial that she had been offered other work during this time by the Council. There was at one point a mention to her of the possibility of another job. She was sceptical about that as the suggestion came shortly after her complaint had been lodged with the Anti-Discrimination Commissioner. In any event Mr Morgan in his evidence denied that the job would have been given to Ms Carrigan. Dr Symonds gave evidence that prior to giving notice Ms Carrigan was depressed and agitated. After she had given notice, she was much more positive. Dr Symonds considered that if Ms Carrigan had not resigned, and the unhelpful attitude of the Darwin City Council had continued, it would have had a detrimental effect on her health. After she completed her employment on 7 July 1995, Ms Carrigan contacted TIO with enquiries about her future entitlements to compensation. She was informed that as she had "voluntarily resigned" from the Council she had impeded her rehabilitation process. She did not consider she had voluntarily resigned, and was dismayed by this statement. She made enquiries about her legal position, and instituted these proceedings alleging a constructive dismissal to establish that she did not voluntarily resign. In the course of the trial her motives for the proceedings were questioned, it being suggested that the idea of constructive dismissal was something that came to her belatedly in an effort to improve her rights to compensation. I reject that submission. It is inconsistent with the reports that she made to Mr Morgan and to Ms McDonald on 6 and 7 June 1995 as to her reasons for giving notice and, in any event, I do not doubt the sincerity of Ms Carrigan's explanation. The inferences drawn by the Judicial Registrar from the primary facts led to findings substantially favourable to Ms Carrigan's case. The Judicial Registrar said: "...I take the view that the respondent did not approach the applicant's disability in the spirit of accommodation appropriate in the context of an injured employee. I find that the respondent was not serious about full rehabilitation of the applicant. I find this because initially the respondent took little or no interest in finding suitable alternative duties for the applicant or for putting a long term rehabilitation program together. This is evident also in the queries by Mr Morgan concerning paying the applicant a lump sum. While the respondent placed the applicant in the parks research position for a period, this was a position in which the applicant did not receive her full pay between February and May 1995. Further, the applicant was told on a number of occasions that this was not a permanent position, her pay slips read 'permanent workers compensation' and although she was working a full week, she was, as I have mentioned, for some period still only receiving 75% of her wages. This picture is confirmed in part by the evidence of Ms McDonald and Dr Symonds. The applicant's only choice was to apply for other positions in administration on her merits without the fact that she needed to be rehabilitated from a labouring position being taken into account. She continually failed to be successful, not surprisingly because she was competing against applicants who had been working in administration. Without having the fact of her injury being taken into account, it seems highly unlikely that she would have been successful. From the evidence given by the respondent's own witnesses, it appears that formal interview and competition was not strictly necessary in the last position the applicant applied for, nor for a number of other positions. Having embarked on the formal process, the respondent then appeared to breach a number of its own policies during and after the interview process. The failure in this process was the final straw for the applicant." Then later, after referring to s.75A of the Work Health Act the Judicial Registrar continued: "I do not consider that the respondent took reasonable steps to rehabilitate the applicant. I have already mentioned the failure of the respondent to place the applicant into an administrative or other suitable position. Evidence was given that there was no real plan to rehabilitate the applicant. The parks position that the applicant was placed in was referred to as not being a 'productive' job...I do not see that any significant steps were taken by the respondent to rehabilitate the applicant, however, at least in some part, the position in the parks might be considered suitable employment for the applicant. Balanced against this however is the fact that at least some employees of the respondent did not have much regard for the position. The respondent did not consider in any serious way the applicant's application for study leave." However, notwithstanding these findings, the Judicial Registrar felt constrained as a matter of law to dismiss the application. The Judicial Registrar referred to the conclusion of the Full Court in Mohazab that the applicant there had no "effective or real choice" but held that in the present case Ms Carrigan's actions in resigning were "voluntary" in the sense of the exercise of a free choice. Hence the termination was held not to be at the initiative of the employer. On the claim that Ms Carrigan was constructively dismissed according to contract principles the Judicial Registrar said that whilst it may be that the obligations to rehabilitate an injured worker in the Northern Territory was a term of the employment contract to be implied by law, the breach of such a statutory term would not give rise to contractual remedies. I am unable to agree with the conclusions of law reached by the Judicial Registrar. I agree with the Judicial Registrar's factual conclusions regarding the Council's conduct in relation to the rehabilitation of Ms Carrigan. Reasonable steps were not taken by the Council to rehabilitate Ms Carrigan in the period from December 1994 until Ms Carrigan left the employment, and the Council failed to comply with its obligations imposed by the Work Health Act. On behalf of the Council it was submitted that it had fulfilled its obligations in regard to rehabilitation because it had no available productive job, in respect of which there was a budget allowance, which could be made available to Ms Carrigan. It was said that the Council was the custodian of the public funds raised by rates, and that it would be inappropriate to expend money on wages to an employee if the work being performed by the employee was not productive. The notion of "productive" work as a pre-requisite to the payment of wages was one introduced by Mr Thirlwell when Ms Carrigan sought to be paid once she started full time. It is not a condition which finds expression in the Work Health Act. The submission of the Council was a surprising one in light of the expenditure that has been made by it in developing substantial manuals entitled "Human Resources Administrative Procedures Manual", and "WorkPlace Health and Safety Policy and Procedure Manual". Documents of this kind were apparently in existence before Mr Thirlwell commenced his employment, but he said that one of his early tasks was to upgrade these documents. By April 1995 the Human Resources Administrative Procedures Manual, as amended by him, read, in relation to occupational rehabilitation policy and procedures, that the Council recognises that rehabilitation of injured workers is now a central feature of the Workers' Compensation system, that the policies and procedures constituted a Council-wide programme, and that as such were to be implemented and adhered to by all Council management and staff. The policy committed the Council to providing suitable duties/employment for an injured worker as an integral part of the rehabilitation process as far as possible; and to ensure that participation in a rehabilitation programme would not, in itself, prejudice an injured worker. The procedures required the Human Resources section to inform an injured employee of rights and entitlements with respect to rehabilitation, and to provide reassurance (in writing) that the previous job will be held open or alternative selected duties will be found. A commitment to these policies would carry with it a recognition that some expense would be incurred by the Council in the proper fulfilment of its perceived obligations as a substantial public sector employer, and in compliance with its statutory obligations. Even if it were the case that financial constraints limited the steps which the Council could have taken to provide suitable employment for Ms Carrigan, that fact does not excuse the failure to give reassurance as required by the policy, the failure to take the question of rehabilitation of Ms Carrigan seriously, and the failure to develop in consultation with Ms Carrigan and the NTRS a rehabilitation programme which would have indicated appropriate goals and a way of achieving them. The neglect of the Council to address these issues may be explained in part by the fact that there was no Human Resources Manager from November 1994 through to March 1995, and that when Mr Thirlwell was appointed he was not familiar with the obligations imposed on the employer under the Work Health Act. However in considering whether the Council was in breach of the implied term alleged, it is not to the point that the Council may not have intended to disregard its obligations. The question is whether the Council's conduct as a whole is such that its effect, judged reasonably and sensibly, is such that the employee could not be expected to put up with it. In my view the approach of the employer to rehabilitation had this effect. There was no planned rehabilitation. No person was appointed to accept the responsibility of reassuring Ms Carrigan and explaining the process from stage to stage (including giving an explanation that should have covered the difficulties that arose regarding remuneration). No apparent effort was made by the Council to put to use the computer training courses that Ms Carrigan underwent. No alternatives to the Bilato proposal were discussed with Ms Carrigan. Having told Ms Carrigan that she would be required to move into clerical or administrative work, no realistic steps were taken to provide that work for her or to recognise her medical state when she sought other positions. In my opinion the events surrounding 2 June 1995, taken against the background of all that had happened before, were likely to be interpreted by her as a plain indication that the Council had no serious intention of assisting her. In my opinion she was entitled to treat the conduct of the Council to that point as a constructive dismissal justifying her in terminating the contract of employment. There is in addition the question of the non-payment of wages to Ms Carrigan by the Council from the point where she returned to full time work. Probably she should have been paid at least her base wage for the hours that she worked from 3 February 1995 to 3 April 1995, with compensation rates being paid in respect of the hours that she did not work each week. However it is sufficient for present purposes to concentrate on the period from 3 April 1995 when she returned to full time work. It is plain on the evidence that the payment of wages was a very real issue which Ms Carrigan was endeavouring to resolve with the Council. Ms Carrigan was throughout employed as a general trade stream 3 employee. Later that grading was retrospectively adjusted, a fact which only serves to confirm that she was treated by the Council throughout as a person employed in a particular grade and entitled to an award rate in respect of that grade. When she returned to work there was no special arrangement with her that she would be paid on some other basis. There was no variation of her contract of employment. Upon her return to work she was, in my opinion, entitled as a matter of law to be paid the wage appropriate to her grade. Insofar as it is relevant, the evidence is to the effect that the work she did was productive in the sense that it was work which an able bodied person would have done no more efficiently or effectively. But even if the work were not wholly "productive" that fact is an incident of the process of rehabilitation. I consider that the persistent failure of the employer to pay a wage from 3 April 1995 in itself provided a reason for Ms Carrigan to treat her contract of employment as repudiated by the Council, and to have accepted that repudiation as a constructive dismissal: Marriott v Oxford and District Co-op Society Limited (No.2) [1970] 1 QB 186. I do not consider that Ms Carrigan waived the breach by continuing in her efforts to gain redeployment. She continued to complain about the inappropriate payment of wages and, indeed, by 7 June 1995 had added to her complaints the additional matters of inappropriate payments on 27 April and 11 May 1995. The conduct of the Council in relation to the payment of remuneration is not an issue separate from its conduct in relation to other aspects of the rehabilitation of Ms Carrigan. The conduct of the Council is to be assessed as a whole, and in my view that conduct demonstrated a plain case of the employer acting in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. I consider the applicant has established her case that she was constructively dismissed. She is entitled to a declaration that her employment was terminated at the initiative of the employer without a valid reason. She is entitled to a remedy pursuant to s.170EE of the Act as it stood at the time of her termination. She does not seek reinstatement. In my opinion Ms Carrigan is entitled to the maximum compensation provided for in s.170EE(3). No argument was addressed to the contrary on behalf of the Council. Her annual salary appears to have been $22,817.56 at the date of the termination of her employment. I therefore award compensation of $11,400 (being the nearest round figure). There will be orders accordingly. I certify that this and the preceding pages are a true copy of the reasons for judgment of Justice von Doussa Associate: Dated: Ms Carrigan appeared for herself Counsel for the respondant : Mr A Young Solicitor for the respondent : Clayton Utz Dates of hearing : 24,25,26,27 February and 3 March 1997

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