Blackadder v Ramsey Butchering Services Pty Ltd

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HIGH COURT OF AUSTRALIA

McHUGH, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

STEPHEN BLACKADDER   APPELLANT

AND

RAMSEY BUTCHERING SERVICES PTY LTD

RESPONDENT

Blackadder v Ramsey Butchering Services Pty Ltd

[2005] HCA 22

27 April 2005
S186/2004

ORDER

1.        Appeal allowed;

2.Set aside the orders of the Full Court of the Federal Court of Australia dated 21 February 2003 and, in their place, order that:

a. the appeal be allowed in part;

b. order 3 of the orders of Madgwick J in the Federal Court of Australia dated 21 May 2002 be varied by deleting therefrom the words "and for a period of 14 days thereafter";

c. order 4 of those orders be set aside; and

d. otherwise the appeal be dismissed.

On appeal from the Federal Court of Australia

Representation:

S C Rothman SC with C T Magee for the appellant (instructed by MRM Solicitors)

G J Hatcher SC with B K B Cross for the respondent (instructed by Hannigans Solicitors)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. McHUGH J. The point of principle involved in this appeal is whether an employer reinstates its employee "to the position in which the employee was employed immediately before the termination" within the meaning of s 170CH(3) of the Workplace Relations Act 1996 (Cth) when it:

    .          gives the employee the title of his former position;

    .pays the employee the amount earned for ordinary time by persons in that position together with the average of the tally or bonus payments paid to employees in that position; but

    .refuses to provide the employee with any duties until he undergoes a medical examination and satisfies the employer that he has the physical capacity to carry out his pre‑termination duties.

  2. The point of principle arises out of proceedings, brought in the Federal Court under that section, to enforce an order made by the Australian Industrial Relations Commission.  In proceedings in the Commission, Commissioner Redmond had ordered:

    "1.      The [employee] shall be reinstated to the position in which he was employed prior to the termination of his employment without loss of continuity of service or entitlements within 21 days from the date of this decision.

    2.        The [employee] is to be reimbursed for all lost salary and entitlements from the date of termination to reinstatement less the salary the parties agree the [employee] received through alternative employment."

  3. In purported compliance with this order, the employer wrote to the employee on 3 May 2000 stating:

    "1.Effective on and from 20 April, 2000 you have been reinstated in the position of Boner in the employ of Ramsey Butchering Services Pty Ltd.

    ...

    3.Until further notice you will not be required to report for work or otherwise perform work in order to be entitled to your wages and other remuneration.

    4.You will be required to undergo a medical assessment by a Company nominated medical practitioner prior to resuming any physical work.  Our reason for…

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Details
Case
[2005] HCA 22
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Full Court of the Federal Court of Australia concerning the interpretation of reinstatement orders made under the *Workplace Relations Act 1996* (Cth). The dispute arose between Mr Stephen Blackadder (the appellant) and his employer, Ramsey Butchering Services Pty Ltd (the respondent), following Mr Blackadder's dismissal. The core of the disagreement centred on whether a reinstatement order required the employer not only to pay the employee's wages but also to provide them with actual work.

The legal issues before the High Court were whether a reinstatement order made under section 170CH of the *Workplace Relations Act 1996* (Cth) necessitates that an employer provide the reinstated employee with work, and whether the employee was effectively reinstated to the position they held prior to dismissal. The Court also considered the Federal Court's power to make orders for the enforcement of such reinstatement orders.

The High Court, by majority, allowed the appeal, finding that the Full Court of the Federal Court had erred in its interpretation of the reinstatement provisions. The Court reasoned that the purpose of a reinstatement order under the Act is to restore the employment relationship to its pre-termination status, which includes the provision of work, not merely payment of wages. This interpretation aligns with the statutory intent to treat a dismissal as ineffective and to reinstate the employee to their former position with all its usual incidents, including the opportunity to perform their duties. The Court's decision varied the orders of the Federal Court, setting aside certain provisions and allowing the appeal in part.

Orders

Orders of the court

1. Appeal allowed;

2. Set aside the orders of the Full Court of the Federal Court of Australia dated 21 February 2003 and, in their place, order that:

a. the appeal be allowed in part;

b. order 3 of the orders of Madgwick J in the Federal Court of Australia dated 21 May 2002 be varied by deleting therefrom the words "and for a period of 14 days thereafter";

c. order 4 of those orders be set aside; and

d. otherwise the appeal be dismissed.

Background

Background to the litigation

I agree with the other members of this Court that the majority in the Full Court of the Federal Court of Australia, from whose orders this appeal comes[2], erred in the view that they took of the employment reinstatement provisions of the Workplace Relations Act 1996 (Cth)[3] ("the Act"). The approach of the dissenting judge in the Full Court (Moore J) is to be preferred[4].[2]Ramsey Butchering Services Pty Ltd v Blackadder (2003) 127 FCR 381.[3]Especially s 170CH. See reasons of Callinan and Heydon JJ ("joint reasons") at [72].[4]Ramsey (2003) 127 FCR 381 at 406-410 [44]-[54].The facts surrounding the appellant's termination The facts, described by Callinan and Heydon JJ in their reasons ("the joint reasons")[5], concerning the case between Mr Stephen Blackadder (the appellant) and his employer, Ramsey Butchering Services Pty Ltd (the respondent), reveal a fairly typical instance of breakdown of trust in the employment relationship. This is apparent, to take but one example, in the appellant's refusal (ultimately withdrawn) to undergo a medical examination by a medical practitioner nominated by the respondent except in the presence of his wife – a requirement to which the practitioner would not accede[6].[5]Joint reasons at [49]-[64].[6]Joint reasons at [62]. However, this attitude on the part of the appellant, and indeed the course of the conflict between the parties, must also be considered against the background of the events that preceded this litigation. That background is described in the reasons for decision[7] of a Commissioner of the Australian Industrial Relations Commission ("the Commission"), Redmond C, in resolving the appellant's application to the Commission for relief under the Act[8]. Those reasons were part of the record. They were referred to both by the primary judge (Madgwick J) in the Federal Court[9], and, on appeal, by the Full Court[10].[7]Blackadder v Ramsey Butchering Services Pty Ltd, 29 March 2000 (Redmond C), Prints S4537 and S4542 ("Decision of the Commissioner").[8]s 170CE. [9]Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395 at 399-401 [16] per Madgwick J.[10]Ramsey (2003) 127 FCR 381 at 386 [3], 390-391 [7] per Moore J. In late August 1999, the appellant was given a summons by the respondent to appear as a witness in a case between another employee and the respondent. The case was being heard before the Commission at the Grafton courthouse. The case concerned an allegedly unlawful termination of the employment of the other employee. After giving his evidence on Monday 27 September 1999, the appellant "concluded from the comments of the respondent's solicitor that the evidence given by him ... was not helpful to the respondent and conflicted with the company's submissions in a number of key respects"[11]. Under the Act, as the Commissioner noted, dismissal or discrimination against an employee for giving evidence in a proceeding under industrial law is prohibited[12].[11]Decision of the Commissioner at [9].[12]The Act, ss 298L(j), 298L(k).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HUGH J (dissent) KIRBY J (dissent) HAYNE J CALLINAN AND HEYDON JJ
On 5 April 2001, the appellant underwent a medical examination. From that date, the respondent commenced to pay the appellant an amount being the amount earned by boners in the boning team for ordinary time, plus the average of the tally paid to all other boners, calculated on a piece work basis, but did not allow the appellant to return to work or to contribute to the piece work tally. Decision of the primary judge The primary judge in the Federal Court (Madgwick J) delivered his reasons for judgment on 10 May 2002. His Honour was of the view that reinstatement under s 170CH of the Act involves a return of the employee to the workplace[52]:[52]Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395 at 406-408 [49], [53]-[57]."... I would agree that reinstatement under s 170CH of the Act does implicitly involve a return of the employee to the workplace. The Act contemplates that it is only in circumstances where reinstatement is inappropriate that the suitable alternative is to award payment in lieu of reinstatement (s 170CH(6)). Thus, the apparent statutory purpose of the relief is to treat the dismissal as ineffective and restore the employment situation to its pre-termination status. If a direction to reinstate an employee required no more than that the employee be put back on the payroll, it is difficult to see why reinstatement would even be 'inappropriate'. Further, as Wilcox CJ observed in Perkins v Grace when considering the meaning of 'reinstated' for the purposes of s 170EE, the predecessor of s 170CH, such meaning should be considered in light of its usage in industrial parlance. Such parlance would understand reinstatement to include reinstatement in the sense just mentioned, including all the usual incidents of the employment, such as attendance at the workplace and there being furnished with one's usual productive work. ...In finding that the orders did require that the [appellant] be returned to work, it is important to clarify what the reinstatement order required in a practical and concrete sense. Counsel for the respondent was, in my opinion, correct in saying that reinstatement does not mean that an employee acquires new legal rights but simply restores the employment relationship with all, but only, the rights and entitlements to treatment in good faith which existed between the parties prior to the termination. It is to be remembered also that such obligations of good faith are owed by both parties. Part of the background matrix of facts in this matter showed a need for reasonable flexibility, recognised in the AWA, for the deployment of employees. What the 'position' was to which the [appellant] was to be reinstated by reappointment (cf s 170CH(3)(a)) is a question of fact and, as a matter of fact, a person may hold a position under which certain work is or is not required, whether or not such position has an express classification or description (such as 'boner'): see State Rail Authority (NSW) v Bauer J[53]. Commissioner Redmond was plainly of the view that the [appellant's] s 170CH(3)(a) position was that of a boner required to do chilled boning work in the big boning room. Of particular significance are the Commissioner's findings that:·the [appellant's] pre-existing medical condition probably caused him to be unable to perform work in hot neck boning;·the [appellant] had not been appropriately trained to perform the hot neck boning; and·there was no identifiable need related to the operational requirements of the business for the [appellant] to be selected to perform this work.Taking these findings into account, the order to reinstate the [appellant] plainly intended that he would not only receive his wages and other entitlements but, in the first instance, at least, return to his former position of employment, namely to a position undertaking boning in the big boning room.The evidence before me indicates that the [appellant] would concede that his position requires that occasionally, for bona fide operational purposes of the employer, he should relieve on the hot neck boning work.As I have indicated, the [appellant's] rights are as before. If he then had a legal liability to be transferred to hot neck boning, upon reinstatement he would again have such liability. If he did not, or did not until he was trained, then again he would not be so liable. If he had a liability to undergo medical examinations from time to time, on the existence of a reasonable need for them and on reasonable terms, such liability would continue. Finally, whatever mutual rights and liabilities as to transfer, removal from active work or termination of employment pre-existed his termination, they will exist again after reinstatement. Some of these matters may involve difficult questions and their resolution should await full argument, if, as I hope will not be the case, it should become necessary."[53](1994) 55 IR 263 at 269.

Ratio Decidendi

Legal Principle Established

Established by: HAYNE J, CALLINAN AND HEYDON JJ

Having made the orders of reinstatement, Redmond C did not proceed to "decide whether the [appellant] was being victimised for having given evidence"[22]. However, the background to the dispute was not forgotten, being mentioned successively by Redmond C[23], the Full Bench of the Commission[24] and by Madgwick J in the Federal Court[25]. I have referred to the background not because it is legally determinative but because it demonstrates how the case is a fairly typical one, involving stress in the employment relationship on both sides, with strong feelings and a sense of grievance in both parties. [22]Blackadder (2002) 118 FCR 395 at 399 [14] per Madgwick J.[23]Decision of the Commissioner at [8]-[13].[24]Decision of the Full Bench at [3].[25](2002) 118 FCR 395 at 397-398 [5]-[12].The purpose and operation of reinstatement orders The fact that, for a very long time[26], Australian statute law has provided for orders of reinstatement in circumstances such as those in this case[27] illustrates the exceptional but settled character of such orders – intruding as they do into the personal relationship of employer and employee[28]. Such intrusion is deliberate and envisaged by the Act[29].[26]The first recorded reinstatement order in Australia was made by the Industrial Commission of New South Wales in Newcastle Wharf Labourers' Union v Newcastle & Hunter River Steamship Co Ltd [1902] AR (NSW) 1. See Ramsey (2003) 127 FCR 381 at 406 [44] per Moore J.[27]See, for example, O'Donovan, "Reinstatement of Dismissed Employees by the Australian Conciliation and Arbitration Commission: Jurisdiction and Practice", (1976) 50 Australian Law Journal 636; Davidson, "Reinstatement of Employees by State Industrial Tribunals", (1980) 54 Australian Law Journal 706.[28]Byrne v Australian Airlines Ltd (1995) 185 CLR 410.[29]The Act, s 170CH. The power to order reinstatement has been described as "drastic": Slonim v Fellows (1984) 154 CLR 505 at 515. The constitutional validity of the provisions of the Act was not questioned in this appeal[30]. The purpose of the Parliament in providing for such relief is to be given effect by the Commission and the courts. It is not to be frustrated or negatived because it conflicts with common law notions of freedom of contract or with other traditional legal rules respecting the personal character of the employment contract. All such rules must adapt to the statutory provisions which have been enacted for important social and industrial purposes.[30]See Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656; Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311. Part VIA Div 3 of the Act now draws for its validity, additionally, on the external affairs power in the Constitution, s 51(xxix), in fulfilment of ILO Convention (No 158) concerning Termination of Employment at the Initiative of the Employer done at Geneva on 22 June 1982, [1994] Australian Treaty Series No 4; and on the corporations power (the Constitution, s 51(xx)). See the Act, ss 170CA(1)(e), 170CB.