WORKCOVER DIVISION Case No. D SPI ELECTRICITY PTY LTD --- S GARNETT MELBOURNE REASONS FOR DECISION ---

Transcription

1 !Undefined Bookmark, I IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE WORKCOVER DIVISION Case No. D JOHN GLEESON Plaintiff v SPI ELECTRICITY PTY LTD Defendant --- MAGISTRATE: S GARNETT WHERE HELD: MELBOURNE DATE OF HEARING: 8 AUGUST, 15, 16 & 17 SEPTEMBER 2014 DATE OF DECISION: 3 OCTOBER 2014 CASE MAY BE CITED AS: GLEESON v SPI ELECTRICITY REASONS FOR DECISION --- Catchwords: S 114 (2A) Accident Compensation Act 1985: worker s payments reduced as a consequence of his employment being terminated for misconduct jurisdiction of court to determine validity of notice and merits of Agent s decision: s 100 (1)(d) Magistrates Court Act 1989 & s 39 and 43 Accident Compensation Act 1985 whether employment terminated because of worker s misconduct for reasons unrelated to his incapacity: s 114 (2A)(d) Review of exercise of discretion. --- APPEARANCES: Counsel Solicitors For the Plaintiff Mr Stanley Maurice Blackburn For the Defendant Mr Johnstone Minter Ellison

2 HIS HONOUR: 1 Mr Gleeson is aged 63 years and commenced employment with the defendant on 9 July 2010 as an Asset Inspector. He sustained injuries to his back on 23 February 2012 when lifting and dragging a 15 kg tool bag whilst kneeling when drilling into a power pole. 2 Mr Gleeson lodged a workcover claim for which liability was accepted by CGU Workers Compensation. He remained off work until 13 March 2012 when he commenced a return to work plan, 15 hours per week on light duties. 3 In the evening of Anzac Day, 25 April 2012, he was intercepted by police and was required to undergo an alcohol breath test which revealed a blood alcohol concentration of 0.147% resulting in his licence being taken from him and receiving an Infringement Notice the effect of which cancelled his licence for a period of 14 months. Mr Gleeson mistakenly believed that the cancellation of his licence did not commence until 28 days after the event because the police officer who issued the Infringement Notice mistakenly marked the section on the Notice that it would take effect 28 days after the date of the Notice. Mr Gleeson continued to perform restricted duties with his employer on 26 and 27 April which involved him driving their vehicle to various work sites. 4 During the weekend of 28 and 29 April he realised after having discussions with friends that his licence to drive was in fact cancelled as at 25 April and accordingly he informed his employer of this fact on Monday 30 April. Ultimately, following a meeting with his employer s representatives on 11 May 2012, his employment was terminated for misconduct. 5 On 19 June 2012, CGU issued a Notice pursuant to s 114(2A) of the Accident Compensation Act 1985, reducing the level of his weekly payments. The Notice indicated that as at 12 May he was receiving $1,308 per week made up of current weekly earnings of $723 and workers compensation top up of $585 and that his entitlement would be reduced to $585 per week from 12 May. 1 DECISION

3 CGU noted that the decision was taken because of the termination of his employment for misconduct by his employer due to his contravention of their Code of Conduct policy and the Company s Value of Safety. 6 Mr Gleeson continued to receive reduced payments in accordance with the decision made by CGU until 13 November The proceedings before the court seek an order that he is entitled to receive an increase in the level of his weekly payments for the period 12 May 2012 to 13 November Whilst not the subject of these proceedings, it should be noted that CGU did issue a Notice of Termination of weekly payments on 24 August 2012 which was subsequently withdrawn following a Medical Panel opinion dated 20 December 2012 and a recent 130 week Termination Notice dated 16 May 2014 was withdrawn by CGU on the second day of the Hearing. 8 Mr Gleeson gave evidence that his role as an Asset Inspector required him to travel in a work vehicle to various locations throughout the state inspecting power poles. He said that his work required not only visual inspection of the poles but also required him to take samples of the base of the pole for testing. He said that he would use a shovel or pick to dig around the base and then use a power drill to take a sample or to apply preservatives. He told the court that he would normally work 10 hours or more a day and also do some weekend work. 9 He told the court that on 23 February 2012, he experienced back pain when kneeling on the ground and dragging his 15 kg tool bag towards him. He told the court that he continued working that day but most of the heavier duties were performed by his work colleague. He said that on 24 February, whilst swinging a pick, he felt further back pain which progressively got worse and so attended his doctor who certified him as being unfit for work and arranged for him to undergo radiological testing. 10 Mr Gleeson gave evidence that he eventually returned to work on 14 March, 2 DECISION

4 15 hours per week performing modified duties. He told the court that he continued to experience back pain and found that getting in and out of the work vehicle was difficult for him. He said that often they took two work vehicles to the site because he was unsure as to how long he would be able to work. He said that during this time he continued to take medication to relieve his pain and also received physiotherapy treatment twice per week and at one stage was provided with a cushion by his physiotherapist to relieve his pain when driving. Mr Gleeson estimated that during the period from 14 March to 30 April he did not work more than 4 hours per day because of his back pain. 11 Mr Gleeson told the court that after he informed his employer on 30 April of his drink driving offence on 25 April and him admitting having driven their vehicle whilst unlicensed on 26 and 27 April he was told to stop work and that they would contact him to discuss the matter further. He told the court that he attended a meeting with employer representatives on 11 May which culminated in his employment being terminated for misconduct on that date. He said that he was not forewarned that this may occur. 12 Mr Gleeson told the court that as at the date of his termination he was struggling to perform even modified duties because of his back pain and had previously requested that his doctor refer him to a back specialist for an opinion. He said that he was referred for a CT Scan on 27 June 2012, an MRI Scan on 7 September 2012, underwent a lumbar epidural injection at the request of Mr Timms, Neurosurgeon, on 28 March 2013 and subsequently underwent a lumbar laminectomy at the L3-4 and L4-5 levels on 11 November Mr Gleeson gave evidence that he got his licence back in mid 2014 and has not been able to return to any work because of his back pain and said that he would have done anything if he could have. 13 In cross examination, Mr Gleeson agreed that at the date his employment was terminated he was certified fit for suitable duties and that remained the 3 DECISION

5 position for a number of months thereafter. Mr Gleeson told the court that on 25 April 2012, after receiving the Infringement Notice the police drove him home and on their request he surrendered his licence to them. Mr Gleeson confirmed that he did not lodge an unfair dismissal claim as a result of being summarily dismissed for misconduct on 11 May He told the court that he was more concerned about the state of his health and his ongoing workcover entitlements at that time and accepted that he had been terminated because he had driven the employer vehicle when unlicensed. He agreed that he could have kept working on modified duties if another employee performed the driving and heavier duties. 14 Mr Priest, who is the defendant s Asset Inspection Manager gave evidence. He told the court that he attended the meeting with Mr Gleeson on 11 May together with Jenny Van Der Haar, the employer s Human Resources Consultant, and that ultimately, he made the decision to terminate Mr Gleeson s employment for misconduct. Mr Priest said that Mr Gleeson did not produce the Infringement Notice at the meeting because he had misplaced it and that he was of the understanding that Mr Gleeson s licence was suspended for 12 months and not 14 months. He told the court that having a drivers licence was an inherent requirement of employment as an Asset Inspector. He said that Mr Gleeson s conduct in driving unlicensed was not only unlawful but affected the employer s insurance cover in the event an accident occurred and was a significant breach of their policy. 15 Mr Priest told the court that when he informed Mr Gleeson of the decision he also told him that it would not affect his workcover entitlements as he was unaware that the Agent could reduce his payments as it did. He told the court that prior to reaching the decision he did consider Mr Gleeson s suitability for other roles during the period of his licence suspension but there were none available. Mr Priest said that Mr Gleeson s injury played no part in his decision to terminate his employment. The formal letter dated 14 May 2012, confirming 4 DECISION

6 the termination of Mr Gleeson s employment and authored by Mr Priest was tendered. It reads; I refer to the meeting held on Friday 11 May 2012 to discuss your recent drink-driving charge and your actions in driving an SP AusNet vehicle whilst you were unlicensed. At the meeting you confirmed that you had lost your licence on Wednesday 25 April You also confirmed that you had driven a company vehicle whilst unlicensed on Thursday 27th (26) and Friday 27 th April To drive a company vehicle whilst disqualified is unlawful. It is in contravention of the Company s Code of Conduct policy which states that employees must comply with the law at all times. Your conduct was also in contravention of the Company s value of Safety which requires you to ensure the safety of both yourself and the community at all times. You put both at risk when deciding to drive a vehicle whilst unlicensed. As you are aware, an inherent requirement of your appointed role of Asset Inspector requires you to have a current and valid drivers licence. Your licence has been suspended for an initial period of 12 months effective from 25 April In cases such as this we are required to determine an appropriate course of action that takes into account all of the circumstances. In the Company s view, your action and subsequent loss of licence is a serious breach of your employment contract and warrants summary dismissal. As a result, you have left the organisation with no other option than to terminate your employment effective immediately. Please be advised that your employment has been terminated effective from the close of business 11 May In cross examination, Mr Priest told the court that he was aware that at the time of his decision to terminate Mr Gleeson s employment he was on a return to work plan following a work related injury and that he was not making progress to a return to full duties. He agreed that Mr Gleeson was only given 24 hours notice of the disciplinary meeting and was not aware if he had been 5 DECISION

7 told that one of the possible consequences was termination of his employment. He agreed that Mr Gleeson had told him that he honestly believed the suspension of his licence was not to take effect until 28 days after 25 April and also agreed that he decided to terminate his employment because by driving without a licence he was in breach of the company policy and he had lost his licence for 12 months. He also agreed that the length of licence suspension was an important factor. Mr Priest conceded that as at 25 April, as Mr Gleeson was relying on a buddy to drive him to site locations because of his back injury, his licence was not an integral aspect of his job at that time. However, he said that in the future it would have been. He disputed that the company could have accommodated him in other roles but said that they had considered his suitability for administrative and data management work but decided he lacked the skills to perform those jobs. 17 Ms Van Der Haar gave evidence on behalf of the defendant. She confirmed that she attended the meeting on 11 May 2012 and was adamant that Mr Gleeson did not produce the Infringement Notice at that time because if he did she would have taken a copy of it for her records. She said she was aware that he was on a return to work plan at the time but was not aware if he was having any difficulty performing his duties whilst on the plan. In cross examination, she told the court that Mr Gleeson was terminated because his action in driving whilst unlicensed breached the company s Code of Conduct and he could not perform his job because he had lost his licence for 12 months. She said they did consider other work options but not for a period of 12 months as there were no vacancies. She said his injury played no role in the decision to terminate his employment. 18 Dr Richards reported that Mr Gleeson was initially treated with rest, anti inflammatories and physiotherapy and was able to return to work on light duties but that due to his condition progressively worsening he has been unable to perform any work since September He reported that an MRI 6 DECISION

8 Scan performed on 8 September 2012 indicated multi level degenerative changes, canal stenosis at L3/4 and L4/5 and multi facet joint degenerative changes. Dr Richards also noted that Mr Gleeson has received psychological treatment to help him cope with his pain, anxiety and depression. 19 Ms Raymundo, Physiotherapist, reported that Mr Gleeson initially received physiotherapy treatment which enabled him to return to work on light duties but he still experienced back pain which was aggravated by the duties he performed and he was also experiencing sleep disturbance. 20 Mr Timms, Neurosurgeon, reported that he performed a lumbar laminectomy at L3/4 and L4/5 on 11 November 2013 and opined that it would take at least 12 months for his condition to stabilise. He recommends that Mr Gleeson undergo prolonged courses of physiotherapy, hydrotherapy and massage and that he be prescribed analgesic medications. 21 On the basis of the employer deciding to terminate the employment of Mr Gleeson on 11 May 2012 for misconduct, CGU made a determination on 19 June 2012 to reduce his weekly entitlement pursuant to s 114(2A) of the Act. The relevant provisions are: (2A) If the current weekly earnings of a worker who (a) has an incapacity for work resulting from, or materially contributed to by, an injury; and (b) is receiving, or but for the worker's current weekly earnings, would have been entitled to receive, compensation in the form of weekly payments are reduced because (c) the worker no longer resides in Victoria; or (d) the worker's employment was terminated because of the worker's misconduct; or (e) the worker (i) has resigned; or (ii) reduced the hours worked otherwise than in the circumstances referred in section 93CDA for reasons unrelated to the worker's incapacity the Authority or a self-insurer may determine 7 DECISION

9 (f) not to alter the amount of compensation in the form of weekly payments paid to the worker; or (g) not to pay compensation in the form of weekly payments. 22 The defendant submitted that the only question for the court to determine is whether the Notice to Reduce weekly payments dated 19 June 2012 is valid. The defendant submitted that the court s role is not a judicial review of the discretion exercised by CGU to reduce weekly payments as it has no power to do so. It was submitted that the inquiry by the court in this proceeding is limited to a consideration of whether CGU had probative evidence at the time of making its decision, and if so, the court does not have power to interfere with the decision made to reduce the weekly entitlement payable to Mr Gleeson. 23 It is not in dispute that s 114(2A) (a) & (b) is applicable to the factual scenario in this case. The defendant described ss (2A) (c), (d) & (e) as the trigger events for the exercise of the discretion contained in (f) & (g). In this case, it relies on ss (d). The defendant submitted that although this provision may be described as draconian, CGU, in the exercise of its discretion, chose the least draconian outcome as it decided to continue making weekly payments, albeit at a reduced rate, whereas it could have decided to terminate all payments pursuant to ss (g). The defendant submitted that the court was not permitted to determine the validity or otherwise of the employer s decision to terminate the employment of Mr Gleeson. It was contended that once the facts were established that the employment of Mr Gleeson was terminated for misconduct, pursuant to ss (2A)(d), the agent was entitled to exercise its discretion, the review of which is beyond this courts jurisdiction. 24 In support of these submissions, the defendant relied on the recent decision in 1 [2014] VSC (1994) VACR [2000] VSC 133. Cetel Communications Pty Ltd v Parker 1, Drobis v VWA & Anor 2, Matilda Women s Refuge Inc v Canavan 3 and Drake v JG & I Nominees Pty Ltd & 8 DECISION

10 VWA 4, a decision of Judge Parrish concerning the exercise of a discretion by Cambridge Integrated Services pursuant to s 93CD of the Act. Apart from the decision in Parker, each of these decisions concerned the court considering the validity of the Notices relied on rather than the substantive issues which formed the basis of the decision. In Parker, Justice Dixon held that I had erred by not finding that s 114 (1A) did not limit the application of s 114 (2A) to circumstances where the worker was receiving payments at the relevant date of the decision to terminate. 25 It was submitted on behalf of Mr Gleeson that the court does have power, by virtue of s 39 and s 43 of the Accident Compensation Act and s 100 (1)(d) of the Magistrates Court Act 1989, to inquire into, hear and determine any question or matter arising under the Act in relation to any decision of the Authority (its Agent), an employer or a self insurer, relating to entitlement or any termination or alteration of weekly payments. The court was referred to the High Court decisions in Australasian Memory Pty Ltd v Brien 5 and Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue 6 as authority for the proposition that statutory provisions that confer jurisdiction and power on a court should not be read narrowly or read down, in the absence of cogent reasons to the contrary. 26 In relation to the power to grant declaratory relief, Mr Gleeson relied on a decision of His Honour Judge GD Lewis in the matter of GIO Workers Compensation (VIC) Limited v Helou 7 where His Honour held; 8 When those two sections (39 and 43) are read in conjunction I am satisfied that within this special jurisdiction of the Accident Compensation Act the County Court and the Magistrates Court have precisely the same powers subject of course to the statutory limit referred to in s 43 of the Accident Compensation Act. It follows that I find the Magistrates Court has the power to 4 [2010] VCC (2000) 200 CLR (2001) 207 CLR March 1995 unreported. 8 Page 6. 9 DECISION

11 grant whatever declaratory relief the County Court has. The court was also referred to another decision by His Honour GD Lewis in Siggins v BT & WA Wood & Sons Pty Ltd 9 where he said; 10 In my view s 39 should be interpreted to enable the court to be able to give relief to the parties who appear in the case before it in as ample a manner as is reasonably open on the legislation which confers jurisdiction. 27 The decision of His Honour Judge Strong in Spiteri v FAI Workers Compensation & MMI Workers Compensation 11 was also relied on in support of the submission that the court can review and determine de novo any question arising out of the decision of the Authority or Agent. Conclusion 28 In my opinion, the Act gives this court far reaching powers to inquire into and determine any decision or the exercise of any discretion by the Authority, its agents, employers and self insurers. The Act imposes both mandatory and discretionary decision making powers in the Authority, its agents, employers and self insurers relating to; the payment of compensation; the benefits payable; claims management and procedure; and, dispute resolution. Unless specifically stated otherwise, the court can determine not only the validity of Notices issued but the merits of the decision contained in the Notice. If the issue relates to a discretion exercised, the court can determine whether it was exercised on proper grounds and the merits of the exercise of that discretion 12. Accordingly, I find that this court does have jurisdiction to determine not only the validity of the Notice dated 19 June 2012 and the grounds on which it was based but the merits of the exercise of the Agent s discretion to reduce the level of weekly payments. In other words, the legislation allows the court to review any power exercised by the Authority, its agents, employers and self-insurers, including discretionary powers October 1997 unreported. 10 Page October 1997 unreported. 12 See ACC v O Brien 2 Vic ACR 166 Judge Higgins 13 December DECISION

12 29 In order for s 114 (2A)(d) to operate, the court has to be satisfied that Mr Gleeson s employment was terminated because of misconduct and that the termination occurred for reasons unrelated to his incapacity. Mr Priest and Ms Van Der Haar said that his employment was terminated because driving without a licence breached the employers Code of Conduct Policy and their Value of Safety and having a licence was an inherent requirement of his employment. Mr Priest and Ms Van Der Haar both told the court that they did consider other employment positions for Mr Gleeson including administrative work but he did not have the skills to perform those roles. Mr Priest conceded that the length of licence cancellation was also a factor which was taken into account and it would have been at a cost to the business to accommodate him and Ms Van Der Haar said that they would not have been able to accommodate him for a period of 12 months in another role. 30 On the basis of the evidence of Mr Priest and Ms Van Der Haar, Mr Gleeson s employment was terminated because; a. driving the employer s vehicle on 26 and 27 April 2012 whilst unlicensed amounted to misconduct; and b. having a valid licence was an inherent requirement of his employment as an Asset Inspector; and c. there were no alternate suitable duties for him for the period of his licence cancellation. 31 Therefore, his misconduct in driving whilst unlicensed was not the sole reason for his employment being terminated. It appears to me on the evidence of both Mr Priest and Ms Van Der Haar that greater weight or emphasis was placed on the consequences of his misconduct rather than the misconduct itself. 32 Mr Gleeson submitted that in these circumstances s 114 (2A)(d) is not satisfied because his employment was not terminated because of his 11 DECISION

13 misconduct. Furthermore, he submitted that the termination was in part related to his incapacity thereby excluding the operation of s 114 (2A). I disagree. Mr Gleeson s employment was terminated because of his misconduct in driving the defendant s vehicle whilst unlicensed and the consequences of him losing his licence for drink driving. It was not related to his incapacity. I accept the evidence of Mr Priest and Ms Van Der Haar that having a valid licence was an inherent requirement of his employment and that without it he could not perform either his pre injury duties or the restricted duties he was performing as at 30 April The employer s decision to terminate his employment was not related to his incapacity and was in part due to his misconduct thereby providing the grounds enabling CGU to exercise its discretion to reduce his entitlement pursuant to s 114 (2A). 33 Having found that the Agent had grounds to act as it did, I find that the decision by CGU on 19 June 2012 was unduly harsh given the circumstances in which the termination of employment occurred and after having regards to the nature and extent of Mr Gleeson s compensable injury. There is no doubt that the fact that Mr Gleeson drove his employer s vehicle whilst unlicensed is a serious matter and amounted to misconduct on his part. However, I accept that he did so under a genuine and honest belief, although mistaken, that he was allowed to do so. There was no suggestion by either Mr Priest or Ms Van Der Haar that they did not accept his account of events as being truthful or his belief as being honest. This was not a scenario where his employment related misconduct was calculated, deliberate or wilful. His misconduct was limited to an honest and genuine but mistaken belief that he was entitled to drive for a period of 28 days. In my opinion, the court is entitled to consider the nature of the misconduct that led to termination of employment when considering whether the discretion as exercised was justified. I find that in all the circumstances, the Agent should have made a decision not to alter the level of his weekly payments pursuant to s 114 (2A). 12 DECISION

14 34 Accordingly, Mr Gleeson is entitled to an increase in the level of his weekly payments for the claimed period pursuant to s 93A and s 93B of the Act. 13 DECISION