CATCHWORDS
INDUSTRIAL
LAW - TERMINATION OF EMPLOYMENT - NO VALID
REASON - Applicant’s employment terminated without notice, and, in part, for
the reason that he had acted as a representative of employees - The decision to
terminate his employment cannot, therefore, be justified, and was not,
therefore, for a VALID REASON - Breach of section 170DF(1) (d) of the Workplace
Relations Act, 1996 - Summary dismissal - NO OPPORTUNITY TO RESPOND TO
ALLEGATIONS - Section 170DC of the Act not complied with - REINSTATEMENT
ordered - REINSTATEMENT is the primary remedy for an unlawful termination of
employment, and should be ordered, unless it is IMPRACTICABLE so to do -
Discussion of the meaning of “IMPRACTICABLE”
Workplace Relations Act, 1996: sections 170DC, 170DE(1), 170DF(1), 170EE (1) and (2), 170EHA.
APESMA v Deniliguin Council, Industrial Relations Court of
Australia, Moore J, 14 December 1995, unreported.
Mitchell Collins v La Trobe Council (1995) 60 IR 480.
Carydias v The Greek Othodox Community, Industrial Relations Court of Australia, North J, 20 February 1997, unreported.
Cox v Australian Meat Corporation Pty Ltd, Industrial Relations Court of Australia, von Doussa J, 14 June 1995, unreported.
Ferry v Minister for Health, Western Australia Industrial Relations Court of Australia, Marshall J, 25 August 1995, unreported.
Johns v Gunns Ltd, 1995, 60 IR 258.
Abbott Hetherington v Houghton Motors Industrial Relations Court of Australia, Marshall J, 28 September 1995, unreported.
Kenefick v Australian Submarine Corporation Ltd (No.2) (1996) 65 IR 366.
Kozelj v Kellogg (Aust) Pty Ltd, Industrial Relations Court of Australia, Wilcox CJ, 26 July 1996, unreported.
Nettlefold v Kym Smoker Pty Ltd, Industrial Relations Court of Australia, Lee J, 4 October 1996, unreported.
Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199.
Patterson v Newcrest Mining Ltd, Industrial Relations Court of Australia, Marshall J, 21 December 1995, unreported.
Thomas v Ralph Lynch t/as Bellingen Grocery, Industrial Relations Court of Australia, Wilcox CJ, 20 December 1996, unreported.
Gerard Westen v Union des Assurances de Paris, Industrial Relations Court of Australia, Madgwick J, 17 December 1996, unreported.
Wilson v IPC Corporation Industrial Relations Court of Australia, Moore J, 8 December 1995, unreported.
GREGORY v G. JAMES AUSTRALIA PTY LTD
Before: PATCH JR
Place: SYDNEY (Heard in Brisbane)
Date/s of hearing: 21 & 22 AUGUST 1996,
3 & 4 DECEMBER 1996,
13
& 14 JANUARY 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QI 1042 of 1996
BETWEEN:
|
JAMES LEGGET GREGORY |
AND
|
G. JAMES AUSTRALIA PTY LTD |
BEFORE: PATCH JR
PLACE: SYDNEY (Heard in Brisbane)
DATES: 21 & 22 AUGUST 1996,
3 & 4 DECEMBER 1996,
13 & 14 JANUARY 1997
MINUTES OF ORDERS
THE COURT ORDERS AND DECLARES THAT:
1. The respondent shall forthwith reinstate the applicant by reappointing him to the position in which he was employed immediately before the termination of his employment by the respondent.
2. The employment of the applicant is, for all purposes, deemed to have been continuous in the position in which he was employed immediately before the termination of his employment.
3. The respondent is to pay the applicant the amount of remuneration lost by the applicant as a result of the termination of his employment, in accordance with the principles set out in the reasons for judgment herein.
4. Any monies paid to the applicant upon the termination of his employment (apart from monies for work done) are to be offset against the amount to be paid to the applicant for remuneration lost.
5. If an agreement is reached between the parties within 21 days of the date of this judgment on the questions of the gross amount of remuneration lost and the amount of tax to be deducted, consent orders may be filed pursuant to Order 35 Rule 10.
6. Within 10 days of today, the applicant is to provide the respondent with copies of all documents in his possession or control concerning any remuneration earned by him since the termination of his employment, together with the names, addresses and telephone numbers of all persons who have provided that remuneration.
7. Liberty to apply on seven (7) days notice.
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
QUEENSLAND DISTRICT REGISTRY
QI 1042 of 1996
BETWEEN:
|
JAMES LEGGET GREGORY |
AND
|
G. JAMES AUSTRALIA PTY LTD |
BEFORE: PATCH JR
PLACE: SYDNEY (Heard in Brisbane)
DATES: 21 & 22 AUGUST 1996,
3 & 4 DECEMBER 1996,
13 & 14 JANUARY 1997
REASONS FOR DECISION
The applicant claims that the termination of his employment was unlawful, and seeks reinstatement. In lieu of reinstatement he seeks compensation.
BACKGROUND FACTS
The applicant is a mechanic. He was employed as a maintenance mechanic by the respondent in October 1994. His employment was terminated, by letter dated 7 March 1996, on 8 March 1996. That was the last date he worked for the respondent.
The respondent is a large company, with its headquarters in Eagle Farm, a suburb of Brisbane. It has a very large fleet of motor vehicles, and, at all relevant times, had a workplace, with mechanics, and other persons, to maintain the motor vehicles. The applicant was one of two persons employed as mechanics in the workshop.
WAS THERE A VALID REASON FOR THE TERMINATION OF APPLICANT’S EMPLOYMENT?
The respondent’s case is, in essence, very simple - the only reason for the termination of the applicant’s employment was that, due to a downturn in the construction industry, resulting in less demand being made for the vehicles in its fleet, a decision was made that one of the two mechanics positions would be abolished. As a result, the applicant’s position (together with another position - not a mechanic -in the vehicle maintenance workshop) became redundant. As a further result, his employment was terminated.
It can readily be seen that the respondent asserts that the termination of the applicant’s employment was necessary, to use the terminology of section 170DE(1) of the Workplace Relations Act 1996 (“the Act”), for the “operational requirements” of its undertaking. In particular, the respondent asserts that the reason for the termination of the applicant’s employment was in no way connected with the applicant’s “capacity or conduct”.
The applicant disputes the respondent’s assertion that the operational requirements of the respondent’s undertaking justified the decision that one of the two mechanic’s positions in the respondent’s company would become redundant.
The respondent points to exhibit 12, which is a document setting out the vehicle maintenance sales from October 1994 (the month the applicant commenced employment with the respondent) until June 1996. The respondent had a system whereby the running costs in respect of its fleet, including maintenance costs and petrol and diesel costs, were invoiced internally. Hence the expression “vehicle maintenance sales” appearing at the top of the columns of figures in exhibit 12.
The respondent argues that exhibit 12 establishes that the simple fact of the matter was that, in the months leading up to the termination of the applicant’s employment, there had been a significant downturn in demand for the services of the vehicle maintenance workshop.
Exhibit 12 shows that, in the 6 months to the end of March 1995, the total “vehicle maintenance sales” from the workshop was in the sum $363,619.00, a monthly average of $60,603.17.
In the 6 months until the end of September 1995, the total was $246,163.00, a monthly average of $41,027.00.
In the 6 months until the end of March 1996, the total was $235,432.00, a monthly average of $39,238.67.
The total for the 21 month period set out in exhibit 12 is $985,548.00 - a monthly average of $46,930.00.
It is apparent from these figures that the decline in the demand for the services of the vehicle maintenance workshop did not occur (contrary to the submission of the respondent) in the period of a few months prior to the termination of the applicant’s employment. In fact, the trend had set in from about April 1995.
Whether or not this “trend” was an established thing is difficult to say - when one looks at the figures for the 3 months following the termination of the applicant’s employment, in which the average monthly sum was $46,778.00 (for practical purposes, the same as the average for the entire 21 month period), considerable doubts arise.
However, the decision to abolish one of the mechanics positions had to do not only with the supposed downturn in vehicle maintenance sales, but also with the desire of the management of the workshop to reduce costs by the more efficient use of personnel.
Even if there had been no downturn in the maintenance sales, the desire to make a particular workplace more efficient by a reduction in personnel is one upon which management can legitimately (validly) base a decision to make a particular position, or positions, redundant.
As it turned out, following the termination of the applicant’s employment, the Assistant Fleet Manager (Mr Ian Malmstedt) who had, prior to that event, had a role which principally involved administration and supervision, took on a far greater proportion of the vehicle maintenance work. He was a mechanic, and thus able to do that. The manager, Mr Ian Cornick, also, to a lesser extent, took on some maintenance work.
This was, from the respondent’s point of view, no doubt a more effective use of resources - less money was being spent on administration, and more on directly productive activities.
In my opinion, it is this aspect of the rationale behind the decision to make a mechanic’s position redundant upon which the respondent has successfully argued that there was, on an objective analysis of the facts, a reasonable or rational basis for that decision.
However, the question of whether or not there was a valid reason to terminate the applicant’s employment is not to be answered simplistically by an analysis of whether or not there was justification for the decision to make a position redundant.
It must always be borne in mind that the legislation requires that there be a valid reason for the particular termination of employment in question.
Kenefick v Australian Submarine Corporation (No.2) (1996) 65 IR 366, was a case in which the employment of a number of employees had been terminated.
In that particular case the employees did not contest their employers need to reduce its workforce, but argued that their employer carried the onus of establishing that there was a valid reason for the selection of each employee.
In respect of that argument, the Full Court ruled at follows:
“Section 170DE(1) is concerned with the termination of employment of an individual employee. As was said in relation to section 170DC, the terminations in this case were for two reasons. Both were based on the operational requirements of the respondent. One reason was the need to reduce the workforce, the other was to retain some rather than other employees of the existing workforce. Without those steps, no individual would have been terminated. The decision to reduce the overall numbers of welders in the hole shop did not of itself lead to the termination of the individual appellant, and the process of selection was only commenced after the decision to reduce overall numbers had been taken. Consequently, the respondent carried the onus of showing that there was a valid reason for the selection of each appellant.
This conclusion is consistent with the scheme of ss 170DE and 170EDA(1). The scheme of the sections provides for the employer to carry the onus on matters peculiarly within the knowledge of the employer, and for the employee to carry the onus on matters peculiarly within the knowledge of the employee. Thus, in the present case, the respondent made the decision concerning the selections of each particular appellant, and determined the basis on which the selection was to be made. The respondent should justify those decisions.”
In this particular case, the respondent has to justify the decision to terminate, in particular, the employment of Mr Gregory. It is not enough to demonstrate that there was, on an objective analysis of the facts, justification for the decision that one of Mr Gregory or Mr Barker (the other mechanic) would be dismissed.
In Gerard Westen v Union des Assurances de Paris, Industrial Relations Court of Australia, Madgwick J, 17 December 1996, unreported, his Honour said, at page 14:
“.....the first task is to focus on the relevant inquiry. This is not whether some change in the functioning of the undertaking, which change companies or immediately preceded or follows the employees’ termination, is made for a valid reason based on the operational requirements of the undertaking. The inquiry is whether there is a valid reason for the actual termination in question. This was brought up by the Full Court judgment in Kenefick.
In this case, one of the reasons for the selection of the applicant, instead of Mr Barker, was that in the opinion of Mr Cornick, Mr Barker was “a better mechanic” . In my view, the respondent has not proved this assertion.
Furthermore, for the reasons set out below, in my opinion, one of the reasons for the termination of the applicant’s employment was the unlawful reason (in breach of section 170DF(1)(d) of the Act) that he had acted in the capacity of a representative of employees.
In Carydias v The Greek Othodox Community, Industrial Relations Court of Australia, North J, 20 February 1997, unreported, his Honour said this:
“It may be argued that, in the context of the Convention,” (i.e. the International Labour Organisation Convention Concerning the Termination of Employment at the Initiative of the Employer - Schedule 10 to the Act), “the expression “valid reason” is used to express the concept of a termination which is justified in all the circumstances: see Nettlefold v Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996); and Thomas v Ralph Lynch t/as Bellingen Grocery (unreported, IRCA, Wilcox CJ, 20 December 1996). On such an argument, a termination which was procedurally unfair, or failed to take account of the personal circumstances of the employee, would not be justified, and would not be for a valid reason. This argument was not raised in this case”.
That argument is raised squarely in the facts of this case.
In my view, a termination which was procedurally unfair cannot be “justified”, and would not, therefore, be for a “valid reason”.
In the circumstances of this case, it was never put to the applicant that one of the reasons for the termination of his employment was that Mr Barker was a “better mechanic”. He never had the chance to say anything about that assertion. It is apparent that the termination of his employment was procedurally unfair. This renders the termination “unjustifiable” and therefore it was not for a “valid reason”.
The termination of the applicant’s employment was therefore in breach of section 170DE(1) of the Act, and unlawful.
WAS THE TERMINATION OF THE APPLICANT’S EMPLOYMENT FOR REASONS INCLUDING THE FACT THAT THE APPLICANT HAS ACTED AS A REPRESENTATIVE OF EMPLOYEES, OR BECAUSE OF HIS AGE?
Section 170DF(1) of the Act, as presently relevant, is as follows:
170DF(1) An employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
(a) ........
(b) ........
(c) ........
(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;
(e) ........
(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(g) ........
The respondent disputes that the applicant ever acted as “a representative of employees”.
In my view, that is clearly incorrect. Mr Gregory, on numerous occasions, acted as a representative of the employees in the workshop.
Throughout the course of Mr Gregory’s employment, there were many meetings at the workshop involving Mr Cornick (the Manager) and Mr Malmstedt (the Assistant Manager). These meetings were mostly about occupational health and safety issues.
The applicant, Mr Timothy Barker (who was the other mechanic in the workshop) and Mr Thomas Chapman all gave evidence that, during the entire period of the applicant’s employment, many health and safety issues were raised, both at the meetings and outside the meetings, with management.
It is clear on the evidence that, although all of the employees at the workshop shared these concerns, the two persons who most frequently raised the concerns were the applicant and Mr Barker.
In so doing, the applicant was speaking, not only for himself, but on behalf of the other employees. He was, thus, acting as a representative of the other employees.
Furthermore, on 10 July 1995 the applicant delivered a letter to Mr Cornick which set out, under various headings, the concerns of the workers in the workshop. It was signed by all 6 workers. In delivering that letter, the applicant was acting as the representative of the other employees.
I am satisfied from Mr Barker’s evidence (which was not contradicted in cross-examination) and from Mr Gregory’s evidence that, after Mr Gregory delivered that letter there was a meeting, at which Mr Cornick was clearly very angry.
The letter was, on the face of it, a perfectly reasonable document for employees to give to management. There was no proper reason for Mr Cornick to be angry. In my opinion, he was angry because he believed that his authority was being challenged.
In the modern world, workers are not to be treated as industrial serfs and should not feel afraid to raise concerns with management, on pain of being deprived of their livelihood. They have the right to voice concerns to management. The letter was moderate in tone, and set out legitimate concerns.
As will be seen from the following material, Mr Cornick’s anger was not confined to the receipt of that letter. His anger continued and became focused on the applicant after the delivery of a further letter on 24 August 1995. That letter was delivered by the applicant.
After the applicant delivered the letter dated 24 August 1995 (exhibit 2) to Mr Cornick, Mr Cornick delivered a letter to the applicant, by leaving it at his workbench. That letter (exhibit 3) was dated 24/8/95, and read as follows:
“When each employee joined this company, they were aware of the conditions that applied. Should any employee not agree with those conditions, I will accept their resignation with reluctance.
Derrick Cornick
Fleet Manager.”
No other employee received such a letter - it was clearly directed, in a very personal sense, against the applicant.
The letter was, in my opinion, a threat to the applicant from Mr Cornick, in which Mr Cornick made it clear that the applicant’s continued employment would be in jeopardy if he continued to agitate on behalf of the employees.
The expression of concerns by the applicant, on behalf of the employees, continued up to shortly before the termination of his employment.
There were several incidents over the period of the applicant’s employment with the respondent in which Mr Cornick and or Mr Malmstedt became angry with the applicant.
For example, on one occasion the applicant, whilst driving a vehicle in the workshop, clumsily collided with something, and damaged the vehicle.
Although the evidence establishes that such accidents were not uncommon in the crowded and untidy workshop, Mr Cornick called the applicant into his office and actually handed him a written warning as a result of that accident. Mr Barker was also present, and after Mr Barker said that he thought that Mr Cornick’s actions to the applicant were unfair (because other employees, and Mr Cornick himself, had been involved in similar accidents and no action had been taken), Mr Cornick withdrew the letter (and, by inference, the warning).
Despite the fact that the warning letter was, ultimately, withdrawn by Mr Cornick, that incident does demonstrate a certain degree of bad feeling flowing from Mr Cornick to the applicant.
The events which occurred after the termination of the applicant’s employment are, in the context of the above matters, persuasive.
The applicant’s employment was terminated on 8 March 1996.
On 15 March 1996, Mr Barker resigned because he had obtained another job.
Shortly after Mr Barker’s resignation, an advertisement appeared in the Courier Mail advertising Mr Barker’s position.
Contrary to the submissions of the applicant, I am satisfied that that advertisement was only for Mr Barker’s position - and had nothing to do with the applicant’s position. Only one position was advertised as being vacant, and the advertisement was not placed until after Mr Barker had resigned.
The advertisement did not state who the prospective employer was, but simply described the position and gave a mobile telephone number. That mobile telephone number was Mr Cornick’s.
Several people, including the applicant, applied for that position. The applicant did not get the job.
That, in itself, does not necessarily reflect adversely on the respondent. An employer who dismisses an employee does not necessarily have to rehire that employee if circumstances change and a position for which the former employee is qualified becomes available.
However, the matter does not end there.
The applicant is in his fifties, and is Scottish. A number of people applied for the position. Mr Barker and Mr Chapman each gave evidence that, after having interviewed one of the (unsuccessful) applicant’s for the job (not the applicant), Mr Cornick came out into the area where Mr Barker and Mr Chapman (and perhaps others) were, and said something like, “Well, that guy was a three-time loser, one, he’s old; two, he’s a know-it-all; three, he’s Scottish.”
Both Mr Barker and Mr Chapman took that reference to “old, Scottish and a know-it-all” to be a reference to the applicant.
Mr Cornick denied saying any such thing.
On balance, I accept the evidence of Mr Barker and Mr Chapman.
I found Mr Barker, in particular, to be an impressive witness. He had no reason to give evidence favourable to the applicant, or, for that matter, favourable to the respondent. He has had no contact, apart from this case, with the applicant. He is now working at Weipa, in the far North of Queensland. In this particular respect, his evidence was corroborated by Mr Chapman.
In my opinion, the reference to Mr Gregory being a “know-it all” was, at least in significant part, a reference to his activities in having acted as a representative of the employees, as set out above.
Although the reference to Mr Gregory being a “know-it-all” was something said by Mr Cornick during the interview process for Mr Barker’s replacement, it, in my opinion, did reflect Mr Cornick’s attitude prior to the termination of the applicant’s employment.
Furthermore, both Mr Barker and Mr Chapman gave evidence (which I accept) that both Mr Cornick and Mr Malmstedt did not want the applicant informed of the vacancy arising from Mr Barker’s resignation.
If they had had no ulterior motives for terminating the applicant’s employment, then they would, of course, have been quite happy for the applicant to know about the vacancy.
Mr Barker and Mr Chapman also gave evidence that Mr Malmstedt threatened to resign if the applicant returned to work at the workshop. Although I do not accept that Mr Malmstedt would, in fact, resign if that had occurred, it does show a certain degree of bad feeling flowing from Mr Malmstedt to the applicant.
In view of the history of the animosity shown by Mr Cornick to the applicant, clearly, at least in significant part, directly as a result of the applicant having acted as a representative of the employees in the workshop, and in view of the remarks made by Mr Cornick during the interview process for Mr Barker’s replacement, and in view of the fact that the applicant was unsuccessful in his application for that position, in my opinion, the evidence has established that one of the reasons for the termination of the applicant’s employment was that he had acted as a representative of the employees in the workshop.
The termination of the applicant’s employment was therefore in breach of section 170DF(1) (d) of the Act and unlawful.
The only reference to “age” possibly being a factor in the termination of the applicant’s employment was what Mr Cornick had said in relation to one of the other applicant’s for Mr Barker’s position being a “three time loser”.
In my view, that does not establish that the applicant’s age was a reason for termination of his employment - rather, that reference was part of a description of, and a reference to, the applicant.
DID THE TERMINATION OF THE APPLICANT’S EMPLOYMENT COMPLY WITH SECTION 170DC OF THE ACT?
Section 170DC of the Act is as follows:
Section 170DC - Employee to have opportunity to respond to allegations
170DC An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:
a) the employee has been given the opportunity to defend himself or herself against the allegations made; or
b) the employer could not reasonably be expected to give the employee that opportunity.
Contrary to the opening remarks of the respondent’s representative, it became clear during the course of Mr Cornick’s evidence that the process by which the applicant was selected for termination involved a comparison of his skills and value compared with those of Mr Barker, the other mechanic in the workshop.
Mr Cornick agreed in his testimony that there had been a process of selection between the applicant and Mr Barker, and that he, Mr Cornick, had reached the conclusion that Mr Barker was a better mechanic that Mr Cornick.
Mr Cornick agreed that that was one of the reasons why the applicant was selected.
As I noted above, in Kenefick v Australian Submarine Corporation Pty Ltd (No.2), the Full Court of this Court made it clear that, a termination of employment for reason of redundancy involves a two step process.
The first step in the process is the decision of the employer that the size of the workforce will be reduced.
The second step in the process is the selection of particular employees for dismissal.
If the criteria by which the decision to terminate any particular employee involved an assessment of that employee’s conduct or performance, then, in the process by which that employee’s employment is terminated, the employer must abide by the requirements of section 170DC of the Act.
In this particular case, although clearly the decision of Mr Cornick that Mr Barker was “a better mechanic” than the applicant involved an assessment of the applicant’s performance and/or conduct, the applicant was never informed of this and given the opportunity to respond.
It follows that the termination of the applicant’s employment did not comply with section 170DC of the Act, and was unlawful.
REMEDY
Reinstatement
Section 170EE(1) of the Act reads as follows:
170EE(1) [Orders] In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may, if the Court considers it appropriate in all the circumstances of the case, make the following orders:
(a) an order requiring the employer to reinstate the employee by:
(i) reappointing the employee to the position in which the employee was employed immediately before the termination; or
(ii)appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination; and
(b) if the Court makes an order under paragraph (a):
(i) any order that it thinks necessary to maintain the continuity of the employee’s employment; and
(ii)an order requiring the employer to pay the employee the remuneration lost by the employee because of the termination.
It is only if the Court thinks that the reinstatement of an employee is impracticable, that the Court is given the discretion to make an order requiring the employer to pay the employee compensation (see section 170EE(2)).
Is the reinstatement of the applicant appropriate in all the circumstances of the case?
In my opinion, reinstatement (putting aside for the moment the question of impracticability) would be an appropriate remedy in this case.
The applicant was a loyal, diligent and competent worker - none of the evidence in the case suggests otherwise. He clearly had the respect and confidence of his fellow employees.
Up until the last day of evidence in this case (14 January 1997) the applicant had remained unemployed. He has clearly suffered a great economic loss as a result of the termination of his employment.
As the applicant’s employment was terminated unlawfully through no fault of his own, and as his losses (both directly economic and in terms of the security of a steady income and a long-term, full-time job) can best be remedied by an order for reinstatement, and as the applicant has clearly suffered an injustice, the justice of the case favours an order for reinstatement.
I consider, therefore, that, in all the circumstances of the case, reinstatement is an appropriate remedy.
Is it impracticable to order the reinstatement of the applicant?
Having determined that reinstatement is an appropriate remedy, I then move to the question of the impracticability of the remedy. In Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199, Wilcox CJ said at page 210:
“One of the amendments to Part VIA made in June 1994 was the substitution of a new 170EE. Under the substituted section, the first task of the Court, in considering relief, is to consider reinstatement is practicable. Compensation for loss of the job (as distinct from lost remuneration) made be awarded only if reinstatement is “impracticable”. It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible. The work “impracticable” requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously effect productivity, or harmony within the employer’s business, it may be “impracticable” to order reinstatement, notwithstanding that the job remains available.”
His Honour’s approach to the question of the impracticability of reinstatement has been adopted by a number of Judges of the Court. See the decision of von Doussa J in Cox v Australian Meat Corporation Pty Ltd, Industrial Relations Court of Australia, 14 June 1995, unreported. See also Johns v Gunns Ltd, 1995 60 IR 258, and Patterson v Newcrest Mining Ltd, Industrial Relations Court of Australia, Marshall J, 21 December 1995, unreported.
The principles I extract from the cases and the legislation are as follows:
1. The Court has a discretion as to the remedies it may grant.
2. That discretion is not absolute, and all the circumstances of the case must be taken into account.
3. In exercising that discretion, the Court has to first determine the question of whether, in all the circumstances of the case, an order for reinstatement is an appropriate order.
4. The Court then has to consider whether in all the circumstances of the case, the reinstatement of the employee would be impracticable.
5. Reinstatement is the primary remedy under the Act. This follows from the necessity to consider the question of impracticability of reinstatement before considering the question of whether compensation is appropriate.
6. Reinstatement should be ordered if the Court considers it an appropriate order, unless the Court finds it to be impracticable so to do.
7. “Impracticable” means something less than impossible, but reinstatement will not be impracticable if it is merely inconvenient, difficult, or disruptive, without causing an unacceptable problem, or unacceptable embarrassment, or seriously effecting productivity, or seriously effecting harmony within the employer’s business.
In this case, the evidence establishes that there was a certain degree of discord within the workplace prior to the termination of the applicant’s employment. However, it is important, in this case, to emphasis that that discord was not the fault of the applicant. Rather, it stemmed from the inability of Mr Cornick and Mr Malmstedt to accept the criticisms that the applicant (and others) were making in respect of occupational health and safety issues.
In my opinion, that degree of discord is not sufficiently serious to ground a finding that it would be impracticable to order the reinstatement of the applicant.
In finding that it would not be impracticable to order the reinstatement of the applicant to his former position, I have not ignored the fact that a genuine decision was made to reduce the number of mechanics working in the workshop from 2 to 1.
However, if the Court were not to order the reinstatement of the applicant, that would result in a clearly unjust situation being perpetuated. In the circumstances of this case, the “fallback” remedy of compensation, which is limited to a sum equal to six months of the applicant’s remuneration at the time of the termination of his employment, is clearly inadequate.
Furthermore, the situation in which the respondent will find itself is entirely of its own making.
It is worthwhile to note that reinstatement has been ordered by the Court in many cases where it was clear that there was no particular position to which to reinstate an employee. These cases include Johns v Gunns (1995) 60 IR 256; Mitchell Collins v La Trobe Council (1995) 60 IR 480; Kozelj v Kellogg (Aust) Pty Ltd, Industrial Relations Court of Australia, Wilcox CJ, 26 July 1996, unreported; Abbott Hetherington v Houghton Motors Industrial Relations Court of Australia, Marshall J, 28 September 1995, unreported; Wilson v IPC Corporation Industrial Relations Court of Australia, Moore J, 8 December 1995, unreported; APESMA v Deniliguin Council, Industrial Relations Court of Australia, Moore J, 14 December 1995, unreported and Ferry v Minister for Health, Western Australia Industrial Relations Court of Australia, Marshall J, 25
August 1995, unreported.
One other factor which I regard as significant in the circumstances of this case on the question of impracticability, is the fact that the respondent company is a large organisation, and is, therefore, able to undergo the necessary reorganisation which would result in the implementation of the order for reinstatement.
The order that the Court will make therefore is one requiring the respondent to, forthwith, reinstate the applicant to his former position.
Orders for continuity of employment and remuneration lost.
The Court will also order that the employment of the applicant is, for all purposes, deemed to have been continuous in the position of which he was employed before the termination of his employment.
As to remuneration lost, the applicant is entitled to have his entire economic loss up to the date of this order, made good.
This would involve a calculation of what, as a practicable matter, the applicant would have earned if he had remained in employment. Such factors as likely overtime and penalty rates (looking back at what he had earned and what his working patterns were in the six months or so prior to the termination of employment and using that as a guide) would have to be taken into account.
The Court is not, as the evidence now stands, in a position to calculate the amount of remuneration lost.
In my opinion, the practicable solution would involve the applicant and the respondent reaching an amicable agreement in respect of an order for remuneration lost, and filing consent orders. A timetable will be set for this process.
COSTS
During the course of the hearing, the applicant let it be known that one of the witnesses he was calling, Mr Thomas Chapman, would be giving evidence that Mr Belfield, who, during the opening days of this case, appeared for the respondent, had allegedly gone to Mr Chapman’s workplace at the workshop in company with Mr Keune, the “in-house” solicitor of the respondent, and the Company Secretary, and “intimidated” Mr Chapman, in an attempt to get Mr Chapman to change his evidence.
The seriousness of that allegation required Mr Belfield to withdraw as the representative of the respondent. As a result, the respondent engaged a firm of solicitors, and Mr Longland appeared for the respondent for the rest of the case.
This resulted in the respondent incurring a considerable amount of costs, which it would not have occurred but for the allegation being made.
Section 170EHA of the Act is as follows:
170EHA(1) [Ordered to pay costs] If, in relation to a matter referred to the Court under section 170ED, the Court is satisfied that a party to the proceedings has caused any other party to the proceedings to incur costs because of an unreasonable act or omission of the first-mentioned party in connection with the conduct of the proceeding following the referral, the Court may order the first-mentioned party to pay all or part of the costs incurred by that other party.
170EHA(2) [Power to award costs] This power is in addition to, and not in derogation from, any other power of the Court to award costs.
170EHA(3) [“costs”] In this section:
“costs” includes all legal and professional costs and disbursements and expenses of witnesses.
As it turned out, the evidence of Mr Chapman did not establish at all that Mr Belfield or Mr Keune had attempted to intimidate him. They did speak to him at the workplace, but this was entirely proper. Nothing which either of them said, in any way, could be construed as an attempt to intimidate.
However, I accept that Mr Chapman believed that there had been an attempt to intimidate him.
I also accept that the applicant genuinely believed (because of what Mr Chapman had said to him) that an attempt had been made by Mr Belfield and/or Mr Keune to intimidate Mr Chapman. It must be borne in mind that the applicant is representing himself, and that, although he is, no doubt, a skilled and experienced mechanic, her is not a lawyer.
In view of this, it was quite proper for the applicant to foreshadow that Mr Chapman would be giving evidence of the nature that he (the applicant) thought Mr Chapman would be giving.
It follows that it cannot be said that through any unreasonable act or omission of the applicant, the respondent incurred costs.
No order for costs will therefore be made.
ORDERS
The Court orders and declares as follows:
1. The respondent shall forthwith reinstate the applicant by reappointing him to the position in which he was employed immediately before the termination of his employment by the respondent.
2. The employment of the applicant is, for all purposes, deemed to have been continuous in the position in which he was employed immediately before the termination of his employment.
3. The respondent is to pay the applicant the amount of remuneration lost by the applicant as a result of the termination of his employment, in accordance with the principles set out in the reasons for judgment herein.
4. Any monies paid to the applicant upon the termination of his employment (apart from monies for work done) are to be offset against the amount to be paid to the applicant for remuneration lost.
5. If an agreement is reached between the parties within 21 days of the date of this judgment on the questions of the gross amount of remuneration lost and the amount of tax to be deducted, consent orders may be filed pursuant to Order 35 Rule 10.
6. Within 10 days of today, the applicant is to provide the respondent with copies of all documents in his possession or control concerning any remuneration earned by him since the termination of his employment, together with the names, addresses and telephone numbers of all persons who have provided that remuneration.
7. Liberty to apply on seven (7) days notice.
I certify that
this and the preceding 26 pages
are a true copy of the reasons for decision of
Judicial Registrar Patch.
Associate: Debra Scott
Dated: 23 May 1997
APPEARANCES
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Applicant in person |
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Solicitors for the respondent: |
A. Longland of Freehill Hollingdale & Page. |
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Dates of hearing: |
21 & 22 August 1996, 3 & 4 December 1996, 13 & 14 January 1997 |
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