Australian Postal Corporation v Stephens

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FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Stephens

[2011] FCA 947

Citation: Australian Postal Corporation v Stephens [2011] FCA 947
Parties: AUSTRALIAN POSTAL CORPORATION  v LARRY STEPHENS
File number: NSD 1248 of 2011
Judge: RARES J
Date of judgment: 11 August 2011
Catchwords: INDUSTRIAL LAW – STATUTORY INTERPRETATION – Federal Magistrates Court order that employee be reinstated under s 545(2)(c) of the Fair Work Act 2009 (Cth) – whether reinstatement order operated to reinstate person on previous fixed-term contract for the unexpired term duration – whether reinstatement was for a particular or indeterminate term in absence of any specification in the order – purpose of power in s 545(2)(c) to order reinstatement is to put person back in the position he or she would have been in but for wrongful act of employer – reinstatement ordered was limited to period of time remaining under previous fixed-term contract – application for stay refused
Legislation:

Fair Work Act 2009 (Cth) ss 545(1) and (2), 545(2)(c)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Workplace Relations Act 1996 (Cth) s 170CH(3)

Cases cited:

Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 considered

Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited (2008) 167 FCR 372 followed
Quinn v Overland (2010) 199 IR 40 considered

Date of hearing: 11 August 2011
Place: Sydney
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 20
Counsel for the Applicant: Mr SR Meehan
Solicitor for the Applicant: Blake Dawson
Counsel for the Respondent: Ms J Keys

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 1248 of 2011

BETWEEN:

AUSTRALIAN POSTAL CORPORATION
Applicant

AND:

LARRY STEPHENS
Respondent

JUDGE:

RARES J

DATE OF ORDER:

11 AUGUST 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The interlocutory application filed on 4 August 2011 be dismissed.

2.The application for leave to appeal filed on 29 July 2011 be fixed for hearing on 19 August 2011 at 10:15am.

THE COURT DIRECTS THAT:

3.The applicant serve and provide a copy to the associate to Rares J any further written submissions in support of its application for leave to appeal on or before 15 August 2011.

4.The respondent serve and provide a copy to the associate to Rares J any further written submissions in support of his application for leave to appeal on or before noon on 18 August 2011.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 1248 of 2011

BETWEEN:

AUSTRALIAN POSTAL CORPORATION
Applicant

AND:

LARRY STEPHENS
Respondent

JUDGE:

RARES J

DATE:

11 AUGUST 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

  1. On 8 July 2011, the Federal Magistrates Court ordered that Australian Postal Corporation, known as Australia Post, reinstate Larry Stephens as an employee.  It also ordered that the parties had liberty to apply by application in a case for further orders in relation to…

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Details
Case
[2011] FCA 947
Decision Date

CaseChat Overview and Summary

In the matter of Australian Postal Corporation v Stephens, the Federal Magistrates Court considered whether an order for reinstatement under section 545(2)(c) of the Fair Work Act 2009 (Cth) should be limited to the duration of a previous fixed-term contract or whether it should be for an indeterminate term. The dispute arose from an earlier decision to order the reinstatement of Mr Stephens, and the current application sought a stay of that order pending the determination of an appeal. The legal issues before the Court included the interpretation of the statutory reinstatement power and whether the order was for a particular or an indeterminate term.

The Court examined the purpose of the reinstatement power under section 545(2)(c) of the Fair Work Act, which is to put the person back in the position they would have been in but for the wrongful act of the employer. The Court found that the order was intended to reinstate Mr Stephens for the period remaining under his previous fixed-term contract, and that no further explanation or specification was necessary. The Court rejected the argument that the order should be for an indeterminate term, as this was not aligned with the purpose of the reinstatement power. Furthermore, the Court held that the application for a stay was misconceived because the time for compliance with the reinstatement order had already expired.

Consequently, the Court dismissed the interlocutory application filed on 4 August 2011 and fixed the application for leave to appeal for hearing on 19 August 2011. The Court directed that further written submissions in support of the application for leave to appeal be served by the applicant by 15 August 2011 and by the respondent by noon on 18 August 2011. The Court's decision clarified the scope of the reinstatement order and emphasised the importance of adhering to the timelines set by the Court.

Orders

Orders of the court

1. The interlocutory application filed on 4 August 2011 be dismissed.

2. The application for leave to appeal filed on 29 July 2011 be fixed for hearing on 19 August 2011 at 10:15am.

THE COURT DIRECTS THAT:

3. The applicant serve and provide a copy to the associate to Rares J any further written submissions in support of its application for leave to appeal on or before 15 August 2011.

4. The respondent serve and provide a copy to the associate to Rares J any further written submissions in support of his application for leave to appeal on or before noon on 18 August 2011.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Because Australia Post was obliged from 8 July 2011 to reinstate Mr Stephens and has breached that obligation, no purpose would be served by ordering a stay. On one view, the order is spent. If it is not spent and Australia Post wishes to remedy its breach of the order by offering Mr Stephens employment, it can choose to do so now. It is not appropriate for the Court to grant relief retrospectively to stay an order in circumstances where the time for compliance with the order has already, in practical terms, expired. The consequences that flow from any breach of the order is another matter. But neither party explained why, despite persisting in their disagreement about the terms of the reinstatement that had been ordered, neither sought to use the liberty his Honour granted to them to apply. Nor did Australia Post explain its delay in applying for a stay.CONCLUSION It follows that the application for a stay was misconceived and should be refused. During the course of today the parties have sought to mediate their differences with the assistance of the Registrar, having consented to me making an order for mediation. Regrettably, they failed to achieve a resolution. They have both agreed that, in the interests of expedition and since I am now familiar with the issues, it is suitable that I hear the application for leave to appeal next Friday.

Ratio Decidendi

Legal Principle Established

Australia Post has given no evidence or explanation as to why it has not complied with his Honour’s order to reinstate Mr Stephens, even on its own terms. I infer that the existence of this dispute between the parties may have formed a basis for his Honour’s order granting liberty to the parties to apply to deal with any issues in relation to implementation or operation of that order. Neither side has chosen to take advantage of that order.CONSIDERATION The power to order reinstatement under s 545(2)(c) of the Fair Work Act is different from that under the terms of s 170CH(3) of the Workplace Relations Act set out in McHugh J’s reasons in Blackadder 221 CLR at 543 [8]. Relevantly, s 545(1) and (2) of the Fair Work Act provides:“(1)The Federal Court or Federal Magistrates Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.(2)Without limiting subsection (1), orders the Federal Court or Federal Magistrates Court may make include the following:…(c) an order for reinstatement of a person.” The ordinary English meaning of the word “reinstate” is to put back or establish again as in a former position or state (the Macquarie Dictionary online), or to reinstall or re-establish a person or thing in a former position or condition (the Oxford English Dictionary online). In essence, Blackadder 221 CLR 539 held that the power to reinstate under s 170CH(3) of the Workplace Relations Act was not confined to restoring only the contractual or other legal rights alone of the person who was reinstated. That power extended to putting that person back into his or her place in the employer’s business, so as to offer him or her meaningful employment in his or her position of the kind that he or she had prior to the termination but with such adaptations as were necessary if the employee had been injured, or the circumstances of the employer had sufficiently changed to allow for new circumstances: Blackadder 221 CLR at 544-545 [14]-[16] per McHugh J, 549-550 [33]-[34] per Kirby J, 552-553 [43]-[46] per Hayne J and 564-565 [75] per Callinan and Heydon JJ. Recently, Bromberg J has observed that the considerations leading to the historical reluctance of courts to grant orders for specific performance of employment contracts has now been overtaken by an increasing judicial realisation that those considerations are no longer applicable to modern day employment relations: Quinn v Overland (2010) 199 IR 40 at 59 [97]-[98]. He recognised that statutory unfair dismissal regimes, providing for the reinstatement of dismissed employees as a suitable remedy, have now been in place for over a generation and continued:“Dismissed employees are regularly reinstated into their former employments without apparent consequent difficulties. The long-standing nature of this remedy, and its acceptance as part of the industrial furniture, is a testament to the fact that as a matter of practice, a breakdown in confidence is not necessarily irreconcilable.”