DECISION NO:495/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - unlawful termination conceded by Respondent - whether reinstatement practicable and appropriate in all the circumstances
INDUSTRIAL RELATIONS ACT 1988, s.170EE
WILLIAMS V AUSTRALIAN SUBMARINE CORPORATION
SI94/284
JUDICIAL REGISTRAR: L FARRELL
PLACE: ADELAIDE
DATE: 17 OCTOBER 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No. SI94/284
B E T W E E N:
ROSS WILLIAMS
Applicant
AND
AUSTRALIAN SUBMARINE CORPORATION
Respondent
MINUTES OF ORDER
BEFORE: JUDICIAL REGISTRAR L FARRELL
PLACE: ADELAIDE
DATE: 17 OCTOBER 1996
THE COURT ORDERS THAT:
1. The Respondent reinstate the Applicant to his former position within 21 days.
2. The parties have liberty to apply with respect to appropriate orders in relation to remuneration lost by the Applicant, continuity of the Applicant’s employment, repayment of any sums by the Applicant to the Respondent, any implications in relation to the payment of taxation or the repayment of amounts to the Department of Social Security.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No.SI94/284
B E T W E E N:
ROSS WILLIAMS
Applicant
AND
AUSTRALIAN SUBMARINE CORPORATION
Respondent
BEFORE: JUDICIAL REGISTRAR L FARRELL
PLACE: ADELAIDE
DATE: 17 OCTOBER 1996
REASONS FOR JUDGMENT
This is an application claiming unlawful termination of employment. The hearing of the application commenced in March 1995 at the same time as a number of claims against the Australian Submarine Corporation following redundancies in December 1994.. This application was adjourned along with a number of others, when it became apparent that all the claims could not be concluded in the allotted time. At the time of the hearing in March 1995, it could not have been anticipated that this matter would be delayed so long.
The Respondent has now conceded that it has breached Section 170DC in relation to this Applicant. The Applicant claims reinstatement. Rather than treat this application as being part-heard from March 1995 the parties have agreed to specific evidence being tendered from that hearing. The factual background to this matter can be found in my judgment of Kenefick v Australian Submarine Corporation dated20 April 1996 (950156). It is unnecessary for me to repeat the facts set out in that judgment.
The Applicant was employed as a Mechanical Fitter in the Outfitting Department at the time his employment was terminated. The Applicant claims reinstatement. He is now the only Applicant seeking reinstatement.
I heard evidence of the reason that the Applicant’s position was made redundant. That evidence can be best summarised by saying that the Applicant’s perfomance had declined in1994 and he was inclined to take matters up with his Union Delegate which the Respondent’s Officers regarded as petty. Most importantly ,it was clear from the evidence of the Respondent’s witnesses that the Applicant’s employment would not have been terminated except for the Redundancy situation having arisen in late 1994.
The concession by the Respondent that the termination was unlawful, pursuant to Section 170DC renders it unnecessary to test the validity of the reason for the termination of the Applicant, except in so far as it can impinge on the practicability and appropriateness of reinstatement.
In my view the evidence of the existing situation must be given considerable weight by comparison to evidence regarding the Applicant’s performance or conduct in 1994 prior to his dismissal or some future circumstance.
A number of factors must be weighed here. Some of them are more crucial to the issue of reinstatement than others. The factors I have had regard to are as follows.
The Applicant is keen to return to work for the Respondent. There is no doubt that he was initially a dedicated, enthusiastic and very able worker. In the absence of evidence of the Respondent’s actual inability to reinstate the Applicant , this evidence must be given considerable weight.
The Respondent has a large workforce. Work is currently available for which the Applicant is suitably skilled. I gained no picture that any significant disharmony amongst the workforce would arise if the Applicant was reinstated.
The totality of the evidence regarding the economic factors affecting the Respondent and which could affect the reinstatement of the Applicant in my view favours reinstatement of the Applicant. I have no doubt that the Respondent can afford to reinstate the Applicant. I have had particular regard to the high level of overtime currently being worked at the Respondent’s workplace and the Respondent’s intention to maintain a level (albeit a lower level than currently being worked) of overtime into the future.
It is important to recognise the different kinds of redundancy situations that arise in determining whether or not reinstatement is practicable and approriate . Where economic necessity is the immediate reason for redundancies then in most circumstances reinstatement cannot be ordered. But many redundancies now arise because of a decision by an employer to introduce perceived efficencies, technological change or restruturing of it’s workforce. Respondents in this jurisdiction must present convincing evidence as to why reinstatement is impracticable and inappropriate.
There is some likelihood of redundancies in 1997. The details in relation to redundancies in 1997 is dependant on some factors that are not yet known. The fact that the Applicant may well be included in those redundancies is not an overwhelming reason for not reinstating him now. Many of the Respondent’s employees face the same uncertainty.
The Applicant’s performance and conduct in 1994 when he was selected for redundancy are not matters that in my view should be given great weight because .without a redundancy situation existing at the time the Applicant’s employment would not have been terminated. In addition some of the causes for the changed conduct and performance of the Applicant in 1994.may well have now dissipated. It is also important to note the lack of evidence of an objective comparison of workers here in the Respondent’s assessment of the Applicant’s conduct and performance. .
The Applicant is the only person who still seeks the remedy of reinstatement of those who were retrenched in December 1994.
In my view the evidence before the Court supports the finding that reinstatement of this Applicant is both practicable and appropriate. I will therefore make the appropriate orders.
I certify that this and the preceding # pages are a true copy of the reasons for my judgment.
DATE OF HEARING : 3 & 4 OCTOBER 1996
FOR THE APPLICANT : MR S BLEWETT
FOR THE RESPONDENT : MR C KOURAKIS
