Beate Siddons and National Union of Workers' New South Wales Branch

[1994] IRCA 32

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )       No. NI 178 of 1994
  )
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN:              BEATE SIDDONS

Applicant

AND:     NATIONAL UNION OF WORKERS',

NEW SOUTH WALES BRANCH

Respondent

JUDGE:    Moore J

PLACE:    Sydney

DATE:     29 August 1994

REASONS FOR EX TEMPORE JUDGMENT

This is an application under s170EA of the Industrial Relations Act 1988 ("the Act"). Mrs Beate Siddons, the applicant, seeks an order requiring the National Union of Workers', New South Wales Branch, the respondent, to reinstate her and pay her compensation.

The applicant commenced employment with the respondent in October 1988 as a casual research assistant.  She worked, since 1991, from 9.00am to 2.30pm Monday to Friday, maintaining the records of the respondent on industrial matters.  On 14 April 1994, the applicant received a letter from the state secretary of the respondent in the following terms:

"During your leave of absence the organisation has implemented a number of changes which will result in a more efficient operation.  Accordingly, we will not require your services for the time being.  We will let you know when and if we require your services in the future."

The respondent submits that the application should not be considered because there exists an adequate alternative remedy and, by operation of s170EB of the Act, the Court should decline to consider or determine the application. There is agreement between the parties that the question of whether there exists an adequate alternative remedy should be considered as a preliminary matter.

It was common ground that the applicant was employed under the Clerks (State) Award (NSW).  It also appeared to be common ground that the applicant's casual employment was for succeeding periods of one week.  It was asserted by the applicant, and not put in issue, that the applicant was sent the letter of 14 April 1994 whilst she was on leave, though whether it should be properly characterised as leave is something I need not now determine.

Section 170EB requires the Court to decline to exercise jurisdiction if it is satisfied there is available to the employee an adequate alternative remedy. In the course of the helpful submissions of the parties, a range of issues were canvassed as to whether the provisions of ss245 to 255 of the Industrial Relations Act 1991 (NSW) ("NSW Act"), constitute an adequate alternative remedy including whether this is to be determined by the Court at the time the application under s170EA is filed or at the time the Court is called upon to consider the matter. However, this issue in these proceedings can be determined on a narrow basis.

Section 245 of the NSW Act generally defines, for present purposes, the jurisdiction of the Industrial Relations Commission of New South Wales ("the NSW Commission"). Its jurisdiction relates to the dismissal or threatened dismissal of employees. "Employees" is defined in s5 in wide terms and there is no reason to believe it does not comprehend casual employees. However, the jurisdiction of the NSW Commission is relevantly limited by the word "dismissal".

I was referred to two decisions of the NSW Commission concerning its jurisdiction in relation to the alleged dismissal of casuals.  The first in time is a decision of Patterson CC of 15 July 1993 in Killington v News Limited, (1993) 51 IR 307. Patterson CC appears to have adopted an expansive view of what dismissal meant in the context of casual employment. In a later decision of the Full Commission of 12 November 1993 in Pacific Waste Management v Saley (1993) 51 IR 339, further consideration was given to the Commission's jurisdiction in relation to the alleged dismissal of a casual. The Commission decided that Mr Saley, who was a casual employee, had not been dismissed but rather was not offered further casual employment when he proposed to return from a short period of leave. The Commission thus determined it has no jurisdiction to consider his alleged dismissal.

While the facts of that case may be capable of being distinguished from the present, the decision of the Full Commission casts substantial doubt on whether the NSW Commission has or would exercise jurisdiction to deal with the subject matter of this application so as to be able to consider whether the alleged dismissal of the applicant was harsh, unjust or unreasonable and if so, whether reinstatement or compensation should be awarded.

In my opinion, the prohibition found in s170EB on this Court exercising jurisdiction is enlivened when this Court is positively satisfied that an adequate alternative remedy exists. It would be open to me to determine, at least for the purpose of these proceedings, the jurisdiction of the NSW Commission to hear an application concerning the alleged dismissal of the applicant. However, whether that would give rise to any form of estoppel or res judicata as between the parties was not the subject of detailed submissions, nor was the question of the effect of a judgment of this Court on the NSW Commission itself. In my opinion, it is sufficient that it is evident that there is a substantial likelihood that the NSW Commission cannot deal with the alleged dismissal of the applicant or would not because it believed it lacked jurisdiction to do so.

Accordingly, having regard to the doubt arising from the decision of the Full Commission in Pacific Waste Management v Saley, I cannot be positively satisfied there is an adequate alternative remedy. Thus, I am not precluded by s170EB from considering and determining this application.

I am aware that the respondent wishes to argue that the Court has no jurisdiction to deal with this application as it does not concern a "termination" as that expression appears in s170EA. I was, at one stage, concerned that I would be considering the question of adequate alternative remedy without dealing with the issue of the jurisdiction of this Court raising, as they do, issues which are at least similar. However the parties agreed that I should decide this issue at the outset and I have been prepared to do so. It may be that if the applicant was to fail on jurisdictional grounds in the NSW Commission, she would also fail on essentially the same grounds in this Court. But the legislative provisions defining the jurisdiction of the NSW Commission and the Court are materially different and I must, given the procedural agreement of the parties, presently assume I have jurisdiction to determine the application by assuming the application concerns a termination.

I am not presently satisfied there is available to the applicant an adequate alternative remedy in respect of her termination. In describing it as termination I am not, as I just noted, expressing a concluded view that it was a termination for the purposes of the Act.

I certify that this and the preceding five (5) pages are a true copy of the edited Reasons for Judgment herein of his Honour Justice Moore.

Associate:

Date:  14 September 1994

Solicitor for the Applicant:    Mr W. McNally of

W.G. McNally & Co

Counsel for the Respondent:     Mr P. Kite

Solicitor for the Respondent:   Turner Freeman

Date of hearing:  29 August 1994

Date of judgment:  29 August 1994