Kacar v Colorpak Packaging Pty Ltd [1996] IRCA 209

ppeared to be having problems he was concerned at the implications of his back. Mr Commins replied, "Certainly". He also said "I feared it would be ongoing" and that the applicant "had acted suspiciously in the past." He agreed that the following proposition was correct: "You were anxious to get rid of him because of the problems that it might cause and you were happy to have the excuse of the false form to get rid of him." The following exchange also occurred:. "I put to you that at the time that you dismissed him you did not know it was connected to his previous injury". Mr Commins: "I suspected it was related. I still suspect that". "You feared he might have a back problem and that was part of the reason you dismissed him". Mr Commins: "That is if it was a genuine claim... We doubted his claim was genuine". Mr Commins admitted there was a prospect the claim was genuine. The applicant gave evidence that in 1984 he suffered a back injury when working for a company called Protean. He said he was off work for about 12 months. He had then worked for a printing firm for a couple of years and then been in the Turkish Army on national service for two years. When he returned to Australia in 1990 he worked again for the same printing firm for three years and did some other casual jobs before he commenced work with the respondent. He said that at the time that he started with the respondent he did not regard his back as a problem as he had been able to do the various activities just referred to without any difficulty. He did admit that a couple of months before commencing with the respondent he felt a low back pain after painting some furniture. After the dismissal the applicant went to his family doctor. Due to some changes in the practice it was about six weeks later that he obtained a WorkCover certificate stating that he was unable to work. He submitted it to the respondent. His claim for WorkCover was refused by the respondent and he has been on sickness benefits since that time. His doctor is presently of the view that he is unable to resume work. The applicant said that in his opinion at the time of his dismissal he would have been able to do some light duties at the factory such as driving a forklift. What was the reason for the dismissal? I am satisfied that there were essentially two reasons for the dismissal here. The first was that stated on the day, namely, the provision of false information by the applicant in his employment application form. The second reason was the assertion by the applicant that he had a work related injury. I am satisfied by the evidence of Mr Commins that he doubted the genuineness of the applicant's alleged injury. He said his father was suspicious of the applicant. He also admitted that he suspected that the injury was related to the previous back injury. The absence from work of the applicant the previous week and his difficulties when returning to work loomed large for the respondent. As Mr Commins admitted he was anxious to get rid of the applicant because of the problems a back injury could cause. I am satisfied that both the prior back injury and the absence from work the previous week because of a back injury were factors in Mr Commins' mind at the time of the dismissal and were part of his reasons for dismissal. Was the reason in breach of the Act? Under s170EDA(2) of the Act the respondent carries the onus of proof that a reason in s170DF(1) was not a reason for the termination. In Johns v Gunns Ltd, (1995) 60 IR 258 at 268 Northrop J said: "The respondent has to establish a negative, namely, that the reasons for dismissal did not include the reason that Mr Johns was temporarily absent from work because of injury. A mere denial may not be sufficient. All the facts and circumstances of the case have to be considered." I am satisfied that one of the reasons for the dismissal was the "temporary absence of the applicant from work because of illness or injury" the previous week, and/or "physical disability", namely, his earlier back injury. I am not satisfied that the respondent has discharged its onus of proof that its reasons did not include a reason prohibited by Sections 170DF(1)(a) and (f) of the Act and has thus breached those provisions. It was also argued that the respondent had breached s170DE of the Act. I am satisfied that the other reason for the dismissal, the false information, did constitute a valid reason for the applicant's termination based on the respondent's operational requirements. An employer is entitled to seek information to discharge its obligations under occupational health and safety legislation. That was what the respondent was doing here and the applicant had a duty to respond truthfully to those requests. When the respondent found that the applicant had not in fact responded truthfully then it had a valid reason to dismiss him and thus has discharged its onus of proof under s170DE(1) of the Act. Further, I am not satisfied that a dismissal based on such a false statement is harsh, unjust or unreasonable. The dismissal based on that ground was lawful due to the importance of the matters of which there had been a misrepresentation: see Lane v Arrowcrest Group Pty Limited, (1990) 27 FCR 427 at 457. Here it is not to the point that the applicant was able to perform the duties. The respondent was denied the opportunity to assess the information it sought before it decided whether to employ the applicant or, to allow it to decide whether to employ him and on what terms it would do so. I am not satisfied that a dismissal based on that reason in these circumstances is to be characterised as harsh, unjust or unreasonable. It was also argued that s170DB of the Act had been breached. I do not accept that. The misconduct of the applicant in suppressing the information sought in the employment application form is serious and is properly to be characterised as "misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period". See s170DB(1)(b). Remedy. There has been a breach of s170DF(1) of the Act. The applicant seeks compensation. It is common ground that reinstatement is impracticable. The applicant has been filing WorkCover certificates since he was dismissed although his WorkCover claim has been denied. He has also been in receipt of sickness benefits. A question arises as to what loss he has suffered as a result of a breach of the Act. I am satisfied on the material before me that the applicant would have been unable to work had he not been terminated in any event. He gave evidence that he could have worked on a forklift but supplied no medical evidence to that effect. It is significant that he is now saying that he is unable to return to full-time work. If the applicant succeeds in his WorkCover claim he will be paid compensation for any period of incapacity. Also the relevant award provides for make-up pay during periods where WorkCover payments are made. As the employer had lawful grounds to terminate the applicant's employment I am not satisfied that he is entitled to any compensation under s170EE(3) of the Act. Under s170EE(3) of the Act the Court in determining the amount of compensation is to "have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment". Here, any remuneration that the applicant would have received or would have been likely to have received is likely to have been WorkCover and make-up payments. The applicant must establish his entitlement to those payments in another forum as the WorkCover claim has been denied. In these circumstances, where lawful grounds for the termination existed as well as grounds which I have found are unlawful, and where the applicant has a claim for WorkCover for the same period that he is seeking compensation for his termination in breach of the Act, I am not prepared to order that any compensation be paid by the respondent. The application must be dismissed. MINUTES OF ORDERS THE COURT ORDERS: 1. The application is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: 15 May 1996 Solicitors for the Applicant: Ryan Carlisle Thomas Counsel for the Applicant: Ms Jane Patrick Representative for the Respondent: Printing & Allied Trades Employers' Federation of Australia Representative for the Respondent: Mr James A Hargrave Date of hearing: 15 May 1996 Date of judgment: 15 May 1996