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
S186/2004ORDER
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.
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.
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."
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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- Case
- [2005] HCA 22
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.