Carter and Department of Education and Training [2004] NSWIRComm 1049 (19 July 2004)

Last Updated: 30 August 2004

INDUSTRIAL RELATIONS COMMISSION

OF NEW SOUTH WALES

CORAM: CONNOR C

Monday, 19 July, 2004

Matter No. IRC 3902 of 2003

IN THE MATTER of a claim for relief relating to the (alleged) dismissal of Elisa Lapura Carter by the Department of Education and Training ____________________________________________________________________

D E C I S I O N

Background

Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, Mrs E L Carter lodged an application alleging the termination of her services as a permanent full-time primary school teacher on Tuesday, 10 June, 2003 after thirteen years of employment. She claimed in her Part 6 application that her services as a teacher were terminated as a result of her allegedly unsatisfactory performance. In fact, Mrs Carter is presently absent from work on workers compensation over a work related issue - an anxiety depression adjustment disorder - and is in the process of an ongoing evaluation as part of rehabilitation programme to determine her fitness for duties as a teacher. She had, in fact, written to the Department on Wednesday, 12 March, 2004 in the following terms:

"...I wish to apply for medical retirement as I can no longer return to my substantive duties..."

However, she withdrawn that application in a further letter dated Thursday, 3 July, 2003, viz:

"...A number of things have occurred which need thorough attention and sorting out. I shall get back to you after..."

According to the Department of Education, Mrs Carter has therefore not been dismissed at all.

Mrs Carter's Part 6 application was allocated to me and it was the subject of a conference - a conciliation and directions hearing - before me on Wednesday, 6 August, 2003. The matter was adjourned for a mention on Thursday, 4 September, 2003, Friday, 3 October, 2003 and Friday, 13 November, 2003. During that time Mrs Carter was reviewing her position, ie whether or not she was prepared to return to work in mainstream teaching, be engaged in purely clerical work for the Department or special teaching, ie teaching intellectually [IO] and physically [IM] impaired students. Ultimately, Mrs Carter has formed the view that she has, in effect, been dismissed from her teaching position. The Department continues to assert that her claim is beyond jurisdiction under Part 6, arguing that she had not been dismissed by the Department at all but remained unfit for work on workers compensation.

At Mrs Carter's request, I adjourned the proceedings until Wednesday, 25 February, 2004 and set the matter down for a hearing on that jurisdictional point on Friday, 4 June, 2004. However, shortly before that date Mrs Carter wrote to me seeking an adjournment of the matter. Her motion to adjourn was based on the recent hospitalisation of her husband and was a request that I:

"...adjourn the jurisdiction hearing set on Friday, 4 June, 2004 for another three weeks..."

But in a handwritten footnote to that notice of motion she has written a postscript, viz:

"...September, 2004 would be a very suitable time for hearing..."

I understand that she proposed that September hearing date largely following discussions she had with my assistant over the telephone who had informed her of my diary commitments. However, I was able to accommodate an earlier hearing of Mrs Carter's Part 6 application - on Tuesday, 29 June, 2004 - when another matter dropped out of my list unexpectedly and I was able to accommodate Mrs Carter with an earlier hearing of her claim. Mrs Carter represented herself in the hearing and gave evidence under oath. Ms Butler represented the Department. She called Ms Lynne Blanch, the Department's manager of corporate occupational health and safety support, as a witness in the hearing.

In her Part 6 application Mrs Carter had originally sought her re-employment (in a clerical position) or, alternatively, monetary compensation in lieu thereof. But her claim in that respect has been amended over time. She is now seeking to return to work commensurate with the restrictions imposed on her by the attending medical practitioner she has selected for her rehabilitation programme. The report of that medical practitioner on which the Department has relied, dated Monday, 15 March, 2004 and provided to the Department on Thursday, 29 April, 2004, is for her to start on four hours of teaching at a time on no more than three days each week in special schools [IO or IM] or a support unit (and not in mainstream teaching). There is a restriction on lifting weights in excess of 5kgs. I understand that the medical practitioner has increased the teaching hours to six hours per day for two days a week but the weight restriction remains as does the prohibition on mainstream teaching. The Department has indicated that it has no work under those conditions that it may currently provide to Mrs Carter.

A written statement by Ms Blanch records the current position, as far as the Department is concerned, viz:

"...I advised the rehabilitation consultant that to my knowledge there were no substantive positions within the Department that would be consistent with the restrictions in hours and days worked. Also I advised that in the special education environment the physical restriction of lifting up to a maximum of 5kgs would most likely require the provision at all times of a teacher's aid special to ensure Mrs Carter's health and safety in the classroom and minimise the risk of injury if the need arose for a manual handling task such as redirection of a student with an intellectual and/or physical disability. I advised that I would seek confirmation from the school staffing directorate on the availability of a substantive position within the above criteria. Consideration would also need to be made of the possibility of a reasonable adjustment provision of a teacher's aide special being employed above establishment four hours per day for three days per week while Mrs Carter is at work.

On Thursday, 13 May, 2004 I forwarded a request to (the Department)... for the availability of a substantive position for Mrs Carter. The rehabilitation provider subsequently provided me with a list of primary schools in the Fairfield and Granville districts where Mrs Carter is prepared to work... I forwarded this request...for advice on availability of any teacher vacancies in support classes at the nominated schools. I received the response that the Department cannot provide a permanent substantive position to Mrs Carter, in line with her permanent restrictions, in any one of the schools she has nominated..."

That is essentially the current position as far as Mrs Carter's employment as a teacher is concerned.

The Issue

My jurisdiction under Part 6 relies on S.84(1), viz:

"If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this part."

It is trite to say that unless an employee has actually been dismissed there is no access to Part 6. The issue before me is also trite. Can an employee on workers compensation and at present unable to resume the work available because of a workers compensation injury, ie work related stress, legitimately mount a claim under Part 6? I believe that the answer must be no.

In an written outline of her claim, Mrs Carter has stated:

"...As I fully prepared this case, I am more and more convinced that there has been a dismissal. In theory, I am still on the books. In practice, I am not in a particular class-room within the premises of the respondent, actually teaching under the terms of the contract I signed with the Department of Education and Training. I am not in a situation where I am purposefully and gainfully employed by the Department. I am placed in limbo...something of a Mexican stand-off... There is no genuine intention on the part of the Department to return me to work regardless of whether I am well or unwell..."

The fact that Mrs Carter still remains "...on the books..." as a teacher, does necessarily support an argument that she is still employed. I am more interested in the actual position and, notwithstanding the fact that she remains on the employment records, if she is not being employed at present, and provided I am satisfied that she is unlikely ever to be employed again, it is open to argue that her employment is, for all practical purposes, at an end. But Mrs Carter remains "...on the books..." whilst on workers compensation. She has not been dismissed by the Department at all. Furthermore, because Mrs Carter is involved in an ongoing rehabilitation programme, it cannot be said that her return to teaching is not feasible in the future. That is a work in progress, as far as I am concerned.

An employee suffering a work related injury should be given proper rehabilitation and the chance to be integrated into the workforce where her state of health permits it and if suitable work is available for an injured worker to perform it would constitute an unfairness to the injured employee that she is not given the opportunity to perform such work [Urban v. Uncle Bens of Australia Pty Limited (1997) 78 IR 70 at p. 72]. But there is an overriding common law duty on an employer to provide a safe working environment for all of his employees, reinforced by S.15 of the 1983 Occupational Health and Safety Act and, if an injured worker is not medically fit for any of the types of work which an employer has available, the employer would be in breach of his responsibility to provide a safe system of work for that employee if he placed her in such work. The directions of Mrs Carter's rehabilitation provider must set the standard in that respect.

Nor has Mrs Carter been constructively dismissed by the Department, as she asserts. The concept of a constructive dismissal has been recognised for some considerable time in the State industrial jurisdiction [Michaelis Bayley Trading Company Case (1979) AR 392, Health and Building Surveyors’ Association of New South Wales v. Strathfield Municipal Council (1987) 25 IR 359 McCabe v. New South Wales Police Service (1996) 99 IR 361and Peters v. Jenolan Cave Reserve Trust (1998) 86 IR 162]. However, the prerequisite for a claim based on a constructive dismissal to succeed the employer must has taken some action which means that he has effectively brought the employment relationship to a close. The Full Bench of the Commission (Peterson, Marks JJ and Connor CC) in Allison v. Bega Valley Council (1995) 63 IR 68 explained the position (at p.72) in the following terms:

"...although the term 'constructive dismissal' is quite commonly used, it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment and was this so, despite on the face of it, their employer appears to have given his or her resignation? It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue..."

The Full Bench went on to say (at p.73) that:

"...where an employee initiates the termination of the contract of employment, it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire of the employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed..."

In this case the Department has not taken any action which I am prepared to accept as initiating any termination of Mrs Carter's employment. On the contrary, it appears to have made every effort to accommodate Mrs Carter, consistent with her medical condition and the requirements imposed on her employment by her rehabilitation provider. It is the stress which Mrs Carter suffered at work which led to her being placed on workers compensation and rehabilitation where she remains and not any action by the Department.

Conclusion

For that reason, I decline to intervene in support of Mrs Carter. I dismiss her Part 6 application as beyond jurisdiction. However, during the course of the hearing on Tuesday, 29 June, 2004 Mrs Carter emphasised the progress she was making in her rehabilitation. Clearly, it would be sensible for her to consult with her rehabilitation provider to identify how those improvements may be reflected in her work programme. The simple fact is that the less restrictions on her employment the greater the opportunity for her to find work as a teacher.

P J CONNOR

Commissioner