Blood Transfusion Service of the Australian Red Cross Society v Raffoul, Leo

[1997] FCA 1508

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 676 of 1997

ON APPEAL FROM the Federal Court of Australia constituted by Justice Gray

BETWEEN:	BLOOD TRANSFUSION SERVICE OF THE AUSTRALIAN RED CROSS SOCIETY APPELLANT
AND:	LEO RAFFOUL RESPONDENT

JUDGE:	GRAY J
DATE:	10 DECEMBER 1997
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

GRAY J:

The respondent, Leo Raffoul, applied to the Industrial Relations Court of Australia, alleging that his employment with the appellant had been terminated unlawfully on 1 September 1995.  In due course, the application was tried by this Court.  On 10 November 1997, I gave judgment and made orders: requiring the appellant forthwith to reinstate the respondent by appointing him to a position of Medical Scientist Grade 1 of the appellant's choosing on terms and conditions no less favourable than those on which he was employed immediately prior to 1 September 1995; requiring the appellant to treat the respondent in all respects as if he had been employed continuously as a Medical Scientist Grade 1 from the time of the termination of his employment until the date of judgment with one period excepted; and requiring the appellant to pay the respondent the remuneration lost by him because of the termination of employment setting off certain amounts and excepting one period.

The appellant has exercised its right to appeal from that judgment and those orders.  Counsel for the appellant has moved the Court today, pursuant to a notice of motion filed on 2 December 1997, for an order staying the orders which I made on 10 November 1997.

The test to be applied in respect of such a motion is that approved by the Full Court of the Industrial Relations Court of Australia in Norman v Besser Industries (NT) Pty Ltd (1996) 73 IR 375, at 376-377. In that passage, the Full Court took the view that there was no material distinction between the test of showing some good reason for the Court to intervene and the test of whether it is appropriate for the Court to intervene. I therefore apply to the facts of this case the test whether it is appropriate for the Court, in all the circumstances of the case, to intervene by staying the orders made on 10 November.

The motion is supported by an affidavit of the Human Resources Manager of the appellant sworn on 2 December 1997.  I regret to say that this affidavit is deficient in a number of significant respects.  In my reasons for judgment, which were published on 10 November, at p 18, I referred to the fact that the appellant employs fifty or sixty medical scientists at any one time and to the proposition that the burden of carrying the applicant as an extra Medical Scientist Grade 1, until a suitable position becomes vacant, was by no means intolerable for the appellant, even if it were engaged in reducing its staff.  The affidavit starts with the proposition that there have been some of the appellant's units for which the respondent has proved to be unsuitable.  I so found in my reasons for judgment.  The affidavit then refers to the remaining units and to the fact that approximately fifteen equivalent full-time positions as Medical Scientist Grade 1 are employed in those units.  It then refers to a reduction in positions at that level within the past year.  In that respect the affidavit adopts a completely wrong reasoning.   It does not address the possibility of the respondent being employed in a position created especially for him, which was certainly contemplated in my reasons for judgment.  Nor does it address the possibility that persons could be transferred from the units in which the respondent could work to those in which he is less suitable, in order to make room for him to occupy a position.  The affidavit does not deal at all with the availability of laboratory space or laboratory equipment for the possible creation of an extra position, pending the availability of a position within the appellant's establishment.

Notwithstanding these deficiencies, I do take the view that, in the circumstances of the case, it is appropriate for the Court to intervene by way of staying the orders which were made.  I accept that, on any view, the appellant would suffer some difficulty if it had to provide work for the respondent on a temporary basis until the hearing and determination of its appeal.  I am therefore disposed to grant the orders sought by the appellant, but subject to certain conditions. 

It seems to me to be appropriate that the appellant should continue to pay the respondent as if he had been employed.  No suggestion has been made that in the event that the appeal were allowed the appellant would be unable to recover money so paid to the respondent and, indeed, counsel for the appellant has been equivocal as to whether the appellant would require such repayment, in any event.  I prefer to leave that issue to the Full Court and, if the Full Court does not deal with it, then to the appellant.

I recognise that, if the appellant is not required to provide work for the respondent, the respondent's difficulties in being away from a laboratory for a lengthy period of time, and thereby becoming deskilled, are likely to be exacerbated.  As counsel for the appellant points out, however, in due course if the appellant fails in its appeal it will have to bear the cost of any necessary retraining of the respondent.  I am therefore of the view that the prejudice to the respondent from not being provided with further work is of a relatively minor order.

I also propose to accept and make a condition of the stay the proposal of counsel for the appellant that the appellant should pay into an interest-bearing account the amount which it would be obliged to pay to the respondent in respect of lost remuneration between the date of the termination of his employment and the date of the reinstatement required by the orders which I made.

For those reasons, the Court orders as follows:

Subject to the conditions that:

1. on or before 17 December 1997, the appellant pay into an interest-bearing account approved by the solicitors for the respondent the amount which paragraph 3 of the orders made on 10 November 1997 requires the appellant to pay to the respondent, such amount and the interest thereon to abide the order of the Full Court;  and

1. on or before 17 December 1997, and on or before the Wednesday each two weeks thereafter until further order, the appellant pay to the respondent the remuneration to which he would have been entitled if the appellant had complied with paragraph 1 of the orders made on 10 November 1997,

the orders made on 10 November 1997 be stayed until the hearing and determination of the appeal or further order.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray

Associate:

Dated:            

Counsel for the Appellant:	Mr P Burchardt
Solicitor for the Appellant:	Arthur Robinson & Hedderwicks
Counsel for the Respondent:	Mr I Fehring
Solicitor for the Respondent:	Wilson Potter Nicholson
Date of Hearing:	10 December 1997
Date of Judgment:	10 December 1997