Brereton, Graeme Edgar v Chubb Security Australia Pty Ltd
[1998] FCA 129
•24 FEBRUARY 1998
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - UNLAWFUL TERMINATION - whether termination of employment relationship - whether redeployment - whether fixed term contract - accrued jurisdiction - ‘remedies’ under Industrial Relations Act 1979 (W.A.)
Industrial Relations Act 1988 (now Workplace Relations Act 1996) ss 170EA, 170CD, 170DB, 170DE, 170DF.
Industrial Relations Act 1979 (WA)
Disability Discrimination Act 1992 (Cth)
Equal Opportunity Act (W.A.)
Security Agents Act 1976.
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20.
Hawkins v Clayton (1988) 78 ALR 69, (1988) 62 ALJR 240.
Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99
Burgundy Royale Investments Pty Ltd & Ors v Westpac Banking Corporation & Ors (1987) 18 FCR 212.
GRAEME EDGAR BRERETON -v- CHUBB SECURITY AUSTRALIA PTY LTD
WI 1073 OF 1997
R.D. FARRELL JR
24 FEBRUARY 1998
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1073 of 1997
BETWEEN:
GRAEME EDGAR BRERETON
APPLICANTAND:
CHUBB SECURITY AUSTRALIA PTY LTD
RESPONDENTCOURT:
RD FARRELL JR
DATE OF ORDER:
24 FEBRUARY 1998
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1073 of 1997
BETWEEN:
GRAEME EDGAR BRERETON
APPLICANTAND:
CHUBB SECURITY AUSTRALIA PTY LTD
RESPONDENT
COURT:
RD FARRELL JR
DATE:
24 FEBRUARY 1998
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 (“the Act”). The application is for reinstatement and compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Graeme Brereton (“Mr Brereton”) by the respondent, Chubb Security Australia Pty Ltd (“Chubb”).
By way of an amended statement of facts, the applicant also sought to invoke the “associated jurisdiction” of the Court to add claims that:
the termination was in breach of a term of the applicant’s contract of employment, for which he seeks damages quantified at 32 months’ normal wages;
the termination was in breach of the Industrial Relations Act 1979 (WA), in that his dismissal was harsh, oppressive and unfair, and he seeks reinstatement or compensation under that statute; and
he was unlawfully discriminated against on the grounds of impairment, contrary to the Disability Discrimination Act 1992 (Cth) and the Equal Opportunity Act (W.A.), and that he suffered loss as a result of that discrimination, similarly quantified as the loss of 32 months’ normal wages, and including unquantified damages for personal distress, for which he seeks compensation under those statutes.
While I had allowed the statement of facts to be amended, I made it clear that in doing so I was not purporting to rule that the Court had jurisdiction to hear those additional claims. I signalled my intention to decide that question, if it be necessary to do so, in my final reasons for decision.
At the commencement of the hearing, the applicant advised that he was no longer pursuing the claims under the Disability Discrimination Act 1992 (Cth) and the Equal Opportunity Act (W.A.).
Contentions
The respondent’s primary contention is that there has been no termination of employment for the purposes of the Act, because there has been no termination of the employment relationship; the applicant is currently employed by the respondent, albeit in a different position and on different terms and conditions. The applicant contends there was a termination to which the Act applies, and that he was later re-employed by the respondent.
The respondent contends in the alternative that if the Court were to find that there was such a termination, then that termination would have been lawful. In terms of Section 170DF, the respondent contends that to the extent that the applicant’s physical disability was a reason for any termination, that reason was based on the inherent requirements of the applicant’s particular position. In terms of Section 170DE of the Act, the respondent contends that any termination was for a valid reason based upon the operational requirements of the respondent’s business, and connected with the capacity of the applicant. The applicant disputes both these contentions.
As for the applicant’s claims in contract and under the Industrial Relations Act 1979 (WA), the respondent contends they are “colourable”, so that the Court should not exercise its discretion to deal with them.
In any event, the respondent disputes the applicant’s contention that his contract of employment was for a three year term, and disputes that the respondent breached the contract.
The Respondent also submits that the better view is that this Court cannot deal with claims under the Industrial Relations Act 1979 (WA).
Findings of Fact
The Western Australian Government Railways Commission (“Westrail”) is a statutory authority wholly-owned by the Western Australian Government it is responsible for, among other things, the operation of Perth’s metropolitan railway system. Westrail implemented a plan to “contract-out” much of its requirement for security services for that railway system to a private company. Tenders were called. Mayne Nickless Limited, trading as M.S.S. Security (“M.S.S.”), were granted preferred tenderer status in early November 1995. A three-year contract (“the Westrail Contract”) was concluded between Westrail and M.S.S. in January 1996.
M.S.S. immediately began to provide general security guards to Westrail. These guards assisted Westrail’s own force of Special Constables to provide increased security to passengers and for Westrail’s property by, among other things, travelling on the trains at night.
M.S.S. also began to design a special-purpose ten-week training course for those who were selected to ultimately become its Service and Security Officers on the rail system. The course was intended to ensure that M.S.S.’s Service and Security Officers were as well trained and skilled in all relevant respects as Westrail’s own Special Constables. Much of the content of the course was taken from the training course developed for the Western Australian Police Force.
Mr Brereton has an army background, and has also had prior experience in the security industry, having worked for another security company for some time. He eventually resigned from that company after becoming dissatisfied with the casual, undependable nature of the employment usually available in the security industry.
He was attracted to the proposition of obtaining permanent, stable employment as a Service and Security Officer on the railways. He therefore applied for employment with M.S.S. soon after it gained preferred tenderer status.
It appears he was given a pre-employment medical examination on 22 November 1995, conducted by the Newcastle Medical Centre. A proforma medical report was sent to M.S.S. The medical history recorded for Mr Brereton on that form noted, among other things, that he had incurred head injuries in 1981, had damaged corneal nerves in the right eye, and that he wore glasses for vision. There is also reference in the notes of his physical examination of a right “tarsorrhaphy” (laterally). Clearly this note is not in layman’s terms, but I understand it to be a reference to the fact that Mr Brereton has had his right eyelid partially sutured closed, a matter which was raised in the expert evidence.
With respect to Mr Brereton’s far vision, the report was as follows:
RIGHT LEFT BOTH Without Glasses 6 / 24 6 / 5 6 / 6 With Glasses or Contacts 6 / 36 6 / 5 6 / 5
The meaning of reports in this form was also explained in the evidence of Dr McGeorge, an Ophthalmic Surgeon called by Mr Brereton as an expert witness. The scores refer to Mr Brereton’s visual acuity as measured by a Snellen Chart. A Snellen Chart is a chart, familiar to most, comprising rows of capital letters of decreasing size from top to bottom. The person taking the test stands six metres from the chart. The top letter on the chart could be distinguished by a person with “normal” vision from a distance of 60 metres. A lower line of letters could be distinguished by a person with “normal” vision from a distance of 24 metres. The lowest line able to be distinguished by a person with “normal” vision from a distance of six metres represents a 6/6 reading. The other two lines would be represented as 6/60 and 6/24 respectively.
Thus, the above report to M.S.S. was to the effect that Mr Brereton’s uncorrected vision in his left eye and binocularly was normal or slightly better than normal, and that his uncorrected vision in his right eye was less than normal.
I did not hear evidence from the person who conducted the tests and I make no finding as to the accuracy of the report.
Mr Brereton’s application for employment led to Mr Brereton obtaining casual employment with M.S.S. as a guard from late 1995. Before beginning work, he undertook a general M.S.S. induction course.
Mr Brereton sought and quickly obtained work with M.S.S. as a general guard on the trains. Before beginning that work he had to complete an “electrification safety awareness” course run by Westrail, which emphasised health and safety aspects of working on the electrified metropolitan railway system. He spent about two thirds of his working hours on the trains, which was his preference. He was happy to work long hours and estimates that he spent about 40 hours per week as a security guard on the railway, while performing additional work for other M.S.S. clients, unconnected with Westrail.
Mr Brereton was keen to gain experience on the railway, and wished to be included in the first intake of guards to undertake the proposed training course for Service and Security Officers. He believed his performance as a general guard on the railways would be vetted to that end. He arranged to see Mr Graham Drury, the Guards Manager for M.S.S., to express his interest in undertaking the Service and Security Officer training course. He received an assurance from Mr Drury that he would participate on the first course.
The first course was scheduled to begin on 26 February 1996.
Mr Brereton was asked by M.S.S. to undergo another medical examination at the West Perth Occupational Medical Centre in Newcastle Street. He and the other potential course participants were also required to undergo various physical tests, psychological tests and tests of their literacy and numeracy.
Under Schedule 4 of the Westrail Contract, standards were set for Medical Examinations for Service and Security Officers. The contract prescribed the following with regard to “Eyes”:
“Standard:
· there must be no uncorrectable ocular abnormality.
· uncorrected vision must be 6/12 or better each eye.
· where visual aids are used the uncorrected vision must be 6/12 or better in each eye and the corrected vision must be 6/6 or better in each eye or 6/6 binocularly.
Near vision for reading must be satisfactory (but not necessarily N5).
Squint must have been satisfactorily operated upon.
Diseases of the retina or eye structures are not acceptable.
Colour vision will be tested by Ishihara plates and, if failed, the applicant must pass the D-15 Hue Test.
Policy:
Where visual acuity does not meet the standard, applicants may be advised that a further examination is required by an ophthalmic specialist.
Should an applicant be shown to be colour defective on the Ishihara plates, further testing using D-15 Hue Test must be passed.
Any eye condition that would prohibit an applicant from performing his/her duties to the required standard will be cause for rejection.”
On 22 February 1996, the Medical Centre issued a certificate to M.S.S. certifying that Mr Brereton had been examined and that the doctor considered him “fit to perform the required duties”. The certificate noted that the full report had been retained by the clinic, and might be subsequently required by M.S.S.
Mr Brereton was then invited by M.S.S. to participate in the first Service and Security Officer course.
On 1 April 1996, after the course had been in progress for about a month, Mr Paul Price was appointed by M.S.S. as its “Branch Manager - Westrail”.
Mr Price addressed the course participants to introduce himself, and later made a point of spending some time with them during meal-breaks and group exercise activities. In these formal and informal contexts, Mr Price congratulated the participants on making what he considered to be a good choice for a secure career. He pointed out to them that M.S.S. had a three year contract with Westrail, so that they could expect stable employment during that time. He also pointed out that if M.S.S. were unsuccessful in winning the tender for the next contract, then it was likely that any successful tenderer would view it as most cost-effective to re-employ them, given the investment that had been made by M.S.S. in their training. In addition, their training and experience as Service and Security Officers would stand them in good stead if and when they decided to return to the general security industry, so that they could expect to qualify for supervisor’s positions.
On 24 April 1996, Mr Brereton and the other course participants were given a letter by Mr Price offering them a full time position within M.S.S. as a Service and Security Officer, and setting out the terms and conditions of that offer.
It included the following paragraphs regarding “Termination”:
“Your employment may be terminated by yourself by giving two (2) week’s notice, or by the Company by giving notice in accordance with the relevant Industrial legislation, or without notice on the basis of payment in lieu thereof.
As stated in the M.S.S. Security - Westrail, W.A. Enterprise Agreement (Clause 5.13 Restriction on Turnover) any employee who leaves the company of their own accord within the first three years immediately following the completion of the ten week Service and Security Officers course, will be required to reimburse the company an amount of;
a. $5,000 - if the employee terminates his/her employment within the first 12 months,
b. $3,000 - if the employee terminates his/her employment within the second 12 months, and
c. $1,000 - if the employee terminates his/her employment with the third 12 months.We reserve the right of immediate dismissal in cases of misconduct or breach of your terms and conditions of employment.”
The Westrail - M.S.S. Security, W.A. Enterprise Agreement, which applied to employees providing security services for Westrail, has the following provisions concerning termination:
“5.2 Termination of Employment
The rights and responsibilities for termination of employment are subject to the following provisions:
5.2.1Notice of termination by the company:-
a)Except in the case of summary dismissal, the company will give the following notice of termination to Full-Time employees.
Period of Continuous Service Period of Notice
Less than 3 years 2 weeks
3 years but less than 5 years 3 weeks
5 years and over 4 weeks
b)Provided that where an employee has had greater than two (2) years continuous service with the company and is over 45 years of age an additional one (1) weeks notice will be provided.
c)Part-Time employees are entitled to the same period of notice outlined in a) above on a pro-rata basis.
d)Payment in lieu of all or part of the notice prescribed in provisions a) and b) above may be made.
5.2.2.Notice of termination by an employee:
Where an employee terminates his/her employment at his/her own discretion, the employee is required to provide the company with two (2) week’s notice of termination.
5.2.3All employees upon cessation of employment are required to return to the company’s office, all company issued uniforms, badges, keys and equipment issued to them by the client or the company. Final payment of termination entitlements will only be made once the above property has been returned. Company property which is found to be damaged or is not returned will result in the value of the property being deducted from final termination payment (excluding fair wear and tear).
5.2.4The company reserves the right to terminate any employee without notice (summary dismissal) for, serious breach of company policy and other forms of serious and wilful misconduct, as defined.
5.2.5All other provisions pertaining to termination of employment will be carried out in accordance with the requirements of the Industrial Relations Act 1988.”
Mr Brereton accepted the offer of a full time position within M.S.S. as a Service and Security Officer, counter-signing the letter of offer on 7 May 1996. He had discussed some questions he had about the contract with Mr Price. Mr Price had been concerned to ensure that all the contracts were signed before the course concluded. He had reminded Mr Brereton that the contract offered secure full-time employment.
Mr Brereton graduated from the training course on 9 May 1996. Only fourteen of the original twenty two participants in the course graduated. He commenced working on the railways as a Service and Security Officer on 15 May 1996.
His performance in the position was at least satisfactory. There was no evidence of any complaint on the part of Westrail or M.S.S. concerning his employment, and the manager to whom he reported, Mr Price, appears to have held a high opinion of his abilities.
Service and Security Officers worked on three shifts: dayshift, afternoon shift or night shift.
Mr Brereton very rarely worked on day shifts. He usually worked on afternoon shift, from 5.00pm to 1.00am, and sometimes on night shift, from 7.00pm to 4.00am.
Night shift was staffed by only two or three officers, in one vehicle. The trains stopped running after 1.00am, and the officers would patrol the Westrail lines in their vehicle, following up on any calls received and any problems detected by surveillance cameras.
During afternoon shifts, the Service and Security Officers would work as mobile patrol officers in Westrail vehicles. Each vehicle would be responsible for one of the four metropolitan lines, or part thereof, and would usually be staffed by a Westrail Special Constable and one or two Service and Security Officers. The vehicles would patrol up and down the lines, regularly checking the stations. When the opportunity arose, they would also check trains while travelling alongside to see that nothing untoward was happening abroad the train.
After 6.00pm, each of the trains would have general security guards rostered aboard them. It was ultimately intended that this function would also be performed by trained Service and Security Officers, but there were not yet enough Service and Security Officers available for that purpose. Mr Brereton sometimes worked in this role, but not often.
The mobile vehicle patrols would receive calls from the guards asking them to check suspicious matters or requesting assistance. They would also receive calls from the central control area, presumably in relation to matters detected on surveillance cameras.
Mr Brereton estimated that he would spend most of his time in the patrol car, but would spend 10 to 15 percent of his time on the station platforms, and a similar proportion of his time on the trains on any given night. He said it would have been unusual for him not to have stepped onto a train in the course of each shift.
Much of the work on the trains and the stations involved checking that passengers held valid tickets and dealing with any misbehaviour, such as drinking, smoking, swearing or “skylarking”.
Mr Brereton gave evidence of frequently having to deal with antisocial behaviour on the trains. It was sometimes necessary to deal with aggressive individuals, and to intervene in fights. He estimates that he was exposed to these more serious incidents on an average of 5 to 10 times each week. He told the Court that he had on one occasion been threatened with a knife, and that on another occasion a passenger had tried to attack him with a pick-handle. He notes that he was never injured working on the trains, and that part of the Service and Security Officers’ training equipped them to defuse aggressive situations.
Most offending passengers would simply be put off the train. If it were considered necessary to arrest a passenger, they would be taken to Central Station to be interviewed by the Service and Security Officer, and then to the East Perth Police Station to be charged and left in custody.
After the railway maintenance staff had finished for the night, it was also the Service and Security Officers’ role to deal with any breakdowns, fixing boon gates and other tasks dealt with in their training. Mr Brereton says he had had to operate boon gates, and to guide passengers along the track when they had to disembark from the train for unforeseen reasons.
Part of the service component of the position was helping passengers with wheel chairs to get on the train, with it often being necessary to ride with the passengers to their destination to help them alight.
Service and Security Officers were also trained and available to administer first aid to passengers, should it be required for any reason.
Mr Brereton had thus had considerable exposure to the duties which were then required of him in his role as a Service and Security Officer. In his time previously as a casual general guard travelling on the trains, he was also exposed for some months to that aspect of the role, which was expected to be increasingly required of Service and Security Officers in future. Even so, I accept that it is possible that Mr Brereton could have been exposed to situations in future which he had not yet had to deal with.
In about July the Service and Security Officers, including Mr Brereton, were also sworn in as Special Constables.
The case proceeded on the basis that it was agreed between the parties that, effective at midnight on 2 June 1996, the business of “M.S.S. Security” was purchased from Mayne Nickless Limited by various entities within a group of companies which I can conveniently refer to as the Chubb Group. As part of those arrangements, the Westrail contract was also assigned to Chubb Security Australia Pty Ltd (“Chubb”) also effective at midnight on 2 June 1996.
The transitional arrangements for the transmission of the business were complex, and led to understandable confusion on the part of Mr Brereton as to the identity of his employer.
It suffices for these purposes to note that from 1 July 1996, Mr Brereton and the other Service and Security Officers were employed by Chubb.
For all practical purposes, little changed for those working under the Westrail Contract. Mr Price and Mr Drury were employed by Chubb in equivalent positions. They now answered to a Chubb employee, Mr Michael McKinnon, who was State Manager - W.A. with responsibility for the Westrail Contract. During a hand-over period until mid-August 1996, the former M.S.S. State Manager also remained in place. After 14 August 1996, Mr McKinnon took on his responsibilities.
Service and Security Officers are sometimes required in the course of their duties to enter onto the railway track, this exposed them to special risks to their personal safety. It was therefore necessary for the Service and Security Officers to be accredited by Westrail with a Track Access Permit. An information circular concerning Track Access Permits was tendered into evidence. It was apparently current as at 20 August 1996. Schedules to that circular set out the minimum vision, hearing and medical standards which Westrail required applicants for Track Access Permits to meet. The standards were ongoing, and regular retesting was required.
Schedule M3, the schedule nominated for Service and Security Officers, prescribes the following standards concerning vision:
“COLOUR SENSE: Normal (see page 19), - VISUAL ACUITY: Must have vision of not less than 6/9 with both eyes open, neither eye to be less than 6/12. Near visual acuity must meet: both eyes - N5 at 30 centimetres, both eyes N14 at 1 metre. Visual fields must meet: both eyes - normal horizontal visual fields to confrontation testing. The eyesight standard can be met with corrected or uncorrected vision. Where it is met by corrected vision, the continuous wearing of spectacles/contact lenses used to achieved the standard will be required at all times whilst on the Government railway reserve.(my emphasis)”
I note that there seems to have been a widespread misconception among the relevant officers that the visual acuity required for the track access permit was 6/18. This was so only for those job categories for which schedules M1 or M2, which prescribe a lower standard, were nominated.
In about June 1996, it was realised that the Service and Security Officers had not been accredited by Westrail for Track Access Permits. Applications were duly made on behalf of the Service and Security Officers, but the relevant Westrail officer needed to check that the applicants met the prescribed medical standards. The certifications of fitness obtained by M.S.S. in February prior to the training course were not sufficiently detailed. It was necessary, therefore, for Mr Price to make arrangements to obtain from the medical centre the full medical reports upon which the certificates had been based. Once obtained, these reports were forwarded by Mr Price to Westrail in about early July 1996.
The report concerning Mr Brereton’s medical examination on 22 February 1996 includes notes in its medical history that Mr Brereton :
suffered head injuries in 1981 as a result of a motorcycle accident while in the army;
wears glasses; and
is nearly totally deaf in the left ear.
The doctor’s examination notes that his eyes are “abnormal”, due to “reduced vision left eye”. His colour vision is also noted as “abnormal”. The examining doctor’s comments were:
“A remarkable recovery from serious head injury in 1981. Any residual disabilities are minor and would not restrict him from doing proposed duties.”
With respect to Mr Brereton’s far vision, the report was as follows:
RIGHT LEFT BOTH Without Glasses 6 / 60 6 / 6 With Glasses or Contacts 6 / 60 6 / 6
In the course of Mr Price’s evidence, he expressed the belief that Mr Brereton had been required to attend a further medical examination with the Newcastle Medical Centre in about June or July 1996. Mr Brereton gave no evidence of such an examination, though the proposition was not put to him. No record of such an examination was tendered into evidence. On the evidence before me I therefore find that no such additional medical examination occurred.
I should note at this point that a Track Access Permit was eventually issued by Westrail to Mr Brereton on 23 August 1996, on the condition that “eye correction must be worn when working on or about the Railway to ensure correct vision standard is met.”
No explanation was offered in the course of the hearing as to why the permit was issued, when the medical reports indicated that visual acuity in Mr Brereton’s left eye did not meet the required standard (which was that neither eye be less than 6/12), whether or not his vision was corrected. Arguably the permit was of no use to Mr Brereton, because it was subject to a condition which he could never meet given that no eye correction was available which would ensure that the correct vision standard for his right eye was met.
The letter from Westrail advising Mr Brereton of the approval of his Track Access Permit notes that the permit:
“...does not in any way establish that an accredited person has the experience, knowledge and or qualification necessary to perform the duties or functions associated with the positions covered under each category of accreditation.”
In early August, Westrail raised with Chubb the fact that twenty one of the Service and Security Officers did not appear to meet the medical standards specified within the Westrail Contract for visual acuity, colour vision or lung function.
At that time, only four groups of Service and Security Officers had undergone training, with the fourth group yet to graduate. Chubb and Westrail were still some way short of their goal of having at least eighty trained Service and Security Officers available to work on the railway. The training for each Service and Security Officer cost Chubb approximately $10,000. This cost was ultimately to be borne by Westrail, given the “cost-plus” nature of the Westrail Contract. However, Chubb anticipated that Westrail would seek to recover from Chubb the costs of training those employees who did not meet the necessary standards and possibly even any wages that had been paid to them.
In the course of the ensuing discussions between the relevant officers of Westrail and Chubb, some agreements were reached concerning the standards prescribed by the Westrail Contract and their application.
It was effectively agreed that strict compliance with the prescribed lung function test would be waived on the basis that the employees who had not reached the required lung function standard had subsequently been able to meet the requirements of the physical component of the training course.
The original “respiratory” standard prescribed in the Westrail Contract was as follows:
“Standard:
Applicants with Respiratory Function Test results less than 80% of normal for FEV or FVC, or 705 FEV/FVC ration should be referred to a respiratory physician to assess the applicant’s respiratory function further.
Policy:
Any respiratory condition that would prohibit an applicant from performing his/her duties to the required standard will be a cause for rejection.”
It might fairly be argued, therefore, that the respiratory standard contained greater inherent flexibility than that prescribed for visual acuity.
By 23 August 1996, it had also been agreed that the visual acuity standard under the Westrail Contract would be relaxed to a requirement that uncorrected vision for each eye be 6/18 or better, rather than 6/12.
As well as reviewing the relevant standards, Chubb also arranged for the Service and Security Officers who had not met the original standards to be retested. By 23 August 1996, many of the Service and Security Officers were judged to have met the required standards, either because the relevant standard had been relaxed, or because retesting had resulted in an improved measure of their capacity.
Mr Brereton was approached by Mr Price on 29 August 1996 and told to attend an appointment with Dr Andrew Marsden the following day for a medical examination. Mr Brereton was told that his earlier eyesight test had not been adequate, as it was only marked “pass or fail”, and that Westrail wanted more details about the Service and Security Officers’ eyesight.
Mr Brereton attended the appointment on Friday, 30 August 1996, which was a rostered day off for him. Dr Marsden conducted some tests of his vision. Dr Marsden’s notes of those tests were as follows:
VISION
UNCORRECTED
CORRECTED
NEAR
L N5
N5
R > N24
N18
FAR
L 6/5
6/5
R 6/24
6/24
Peripheral:
L: >45o
Yes
R: >45o
Yes
Colour Vision Normal (Ishihara)
No
Definitely Colour Blind Passed the Lantern Test
Spectacles or Contact Lens used at work
Yes
COMMENTS:
Right eye partial tarsorrhaphy
Dr Marsden gave no indication to Mr Brereton at the conclusion of the examination that there was any problem with the results. Dr Marsden then reported his results to Mr Price, probably that evening by telephone. He confirmed that Mr Brereton’s results for his right eye failed to meet the required standard that uncorrected vision for each eye be 6/18 or better.
Mr Price telephoned Mr Brereton on the same evening or on Saturday, which was also a rostered day off. He told Mr Brereton that there was a problem with his eyesight, and that he should not attend his usual work on Sunday 1 September 1996, when he was next rostered, but should instead report for work at Mr Price’s office within the Central Railway Station. Mr Brereton did so.
Mr Price was under the misapprehension that the immediate reason why Mr Brereton could not work on the trains was a failure on his part to qualify for a Track Access Permit. In fact such a permit had been issued, as I have noted. I do not regard this misapprehension as significant, given the terms of the Track Access Permit.
Mr Brereton reported for office duties on Sunday, as instructed. Mr Price returned to work on Monday morning.
It had been clear to Chubb by the end of August that there remained only three Service and Security Officers who did not meet the medical standards. One of them was Mr Brereton. In each case, the difficulty was visual acuity. By then, Chubb were of the view that there was no further scope for review with Westrail of the relevant visual acuity standards. Thus, management at Chubb were proceeding on the basis that, unless further testing of the employees showed that they could meet the relevant standards, then they would no longer be able to work under the Westrail Contract.
The prospect that Chubb would be left with some Service and Security Officers who were no longer be able to work under the Westrail Contract had been looming for some time. Various options for these employees were canvassed by Chubb’s Western Australian management in internal memoranda to senior management in Sydney from mid to late August 1996.
Mr Drury, in a memorandum dated 15 August 1996, observed that:
“...we may be looking at relocating between two and eleven staff and until all results/recommendations have been made clear to us we should be planning on offering alternative employment rather than dismissal.”
In a further memorandum dated 16 August 1996, Mr Drury noted that:
“A possible alternative for the staff involved could be for us to offer employment within Chubb as a Guard or Patrol Officer and for us to agree to make up their wages to the level they would have earned for the duration of the contract.”
In a memorandum dated 20 August 1996, Mr McKinnon reported that:
“Initial advice from Ian Hawthorn after discussions with solicitors is as follows.
Redundancy
-not a viable option due to fact position still exists. Employees may seek reinstatement.
-option only if want to offer excessive redundancy payments.
Termination on Medical Grounds
-tackles the problem head on.
-medical standards set must be reasonable given the responsibilities of the position and hold up in court.
-if not could face damages on the basis of discrimination on the grounds of physical impairment.
Relocation to Other Duties
-alternative offers could be made to officers in guards and/or patrols. This would result in a salary cut dependent upon position. We could offer to hold existing salary for a transitional period to encourage transfer.
Probation
-terminate employees within probationary period.
A legal position must be obtained before proceeding in order to establish the following:
a)Agreed best course of action.
b)Agreed positions with Mayne Nickless.
c)Agreed position with medical company insurers.
d)Agreed position with our partners Westrail due to the possible publicity.”
In a further memorandum dated 23 August 1996, Mr McKinnon advised that, as at that date, only three officers were believed to be “unacceptable”. They were Mr Brereton, Mr Sydney Knapp and Mr Bernard Downes. He then recast the various options for those employees:
“1)Options
(i)Knapp and Downs are presently under training and both are struggling with the baton training component of the course. If they fail this, then employment would not be offered.
(ii)Knapp and Downs even if they successfully complete the training course could not be offered a position.
(iii)Relocation to Other Duties
Alternative offers could be made to officers in guards and/or patrols. This would result in a salary cut dependent upon position. We could offer to hold existing salary for a transitional period to encourage transfer. Please note Knapp was previously on MSS Guard prior to commencing the course.
(iv)Termination on Medical Grounds
-tackles the problem head on.
-medical standards set must be reasonable given the responsibilities of the position and hold up in court.
-if not could face damages on the basis of discrimination on the grounds of physical impairment.
(v)Redundancy
-not a viable option due to fact position still exists. Employees may seek reinstatement.
-option only if want to offer excessive redundancy payments.
A legal position must be obtained before proceeding in order to establish the following:
-Agreed best course of action.
-Agreed positions with Mayne Nickless.
-Agreed position with medical company insurers.
-Agreed position with our partners Westrail due to the possible publicity.”
Despite these preliminary discussions of the options, no decision had been made by the end of August 1996 concerning the future of Mr Brereton, Mr Knapp and Mr Downes, if they did not meet the standard when retested.
Mr Brereton spoke to Mr Price from time to time on the afternoon of Monday 2 September and during the ensuing days. He was told that Mr Price was attending meetings about the issue and that Mr Price would let him know if he heard anything.
Mr Brereton continued to report for work in the office. There was insufficient work available to keep him fully occupied, so Mr Price usually permitted him to go home early at lunch time each day.
Mr Brereton had a rostered day off on Wednesday 4 September 1996. That afternoon he received a telephone call from Mr Price.
Mr Brereton described the call in an affidavit sworn for the purpose of proceedings in the Australian Industrial Relations Commission on 10 March 1997:
“I received a phone call from Paul Price saying that he had had a meeting with Mr McKinnon, who was the State Manager of Chubb Protective Services. He said there was a problem with my eyesight and they had a letter for me. He inquired whether I wanted the letter read to me. I requested that he do so. He read me the letter...”
The letter to Mr Brereton from Mr McKinnon, dated 4 September 1996, read as follows:
“Dear Mr Brereton ,
EYE SIGHT REQUIREMENTS
We refer to your offer of employment with this company, signed by you on May 7, 1996.
You will recall the medical examination carried out upon you by the West Perth Occupational Medical Clinic on February 22, 1996. This procedure was carried out in order to ensure you were physically fit within the terms of our contract with Westrail. Our contract with Westrail now provides, amongst other things, that your uncorrected vision must be 6 - 18 or better in each eye.
It has recently come to our attention that your uncorrected vision is, in fact, 6 - 24. This does not satisfy Westrail’s requirements and you will therefore be unable to carry out any duties as a Service and Security Officer under this contract. The delay in notifying you of this was not caused by this company, but we apologise to you in any event.
We therefore notify you that we propose to terminate your contract of employment in the immediate future. Should you wish to address the company to make submissions as to why you should not be dismissed, we ask that you contact Michael McKinnon within the following 24 hours. An appointment may then be arranged.
You may also wish to discuss the possibility of re-employment within this company or within the Chubb Group to a different position in which your eye sight capabilities will not prevent your employment.
Yours faithfully,
(signed)
MIKE McKINNON
STATE MANAGER
CHUBB PROTECTIVE SERVICE”
Mr Brereton’s affidavit continues:
“I was shocked when the word “terminated” was used as this was the first indication that my job may be on the line. However Mr Price assured me and told me not to worry and make an appointment to see Mr McKinnon to discuss the matter. I was not led to believe the matter was serious, rather it appeared to me it was a matter that just needed to be sorted out. Accordingly I rang Mr McKinnon immediately and made an appointment to see him the following day.”
Mr Brereton’s evidence in the hearing about this telephone call was somewhat different in flavour.
He recalls asking Mr Price what the letter meant, and that Mr Price responded that he was “basically sacked, gone kaput.” Mr Price denies this. Mr Brereton recalls being distressed and swearing at Mr Price. Mr Price does not recall this; he thought Mr Brereton handled himself well. He says he told Mr Brereton that he was “no longer in the loop” and that Mr Brereton would have to speak to Mr McKinnon. Mr Price recalls that it was Mr McKinnon’s policy to take care of “hiring and firing”.
Mr Brereton explained that the version of the telephone call contained in his affidavit was somewhat condensed and left some things out. However, the tenor of and conclusions reached in the affidavit are more consistent with Mr Price’s version of events.
Mr Brereton collected a copy of the letter from the Armadale station, near his home, that afternoon.
At 8.30am on Thursday 5 September 1996, Mr Brereton met with Mr McKinnon and Mr Drury at Chubb’s head office in Osborne Park.
In making findings about this meeting I have had regard to all the evidence, including:
the oral evidence of Mr Brereton, Mr McKinnon and Mr Drury;
notes made by Mr McKinnon immediately after the meeting (which in turn were based upon notes made during the meeting which, though not tendered, were available to the applicant and not cross-examined on); and
Mr Brereton’s account of the meeting in his affidavit sworn on 10 March 1997.
Mr Brereton was agitated at the beginning of the meeting. He believed he was in danger of losing a job he very much wanted to keep, through no fault of his own. Mr McKinnon and Mr Drury did what they could to pacify him. Mr Brereton concedes, in his affidavit, that Mr McKinnon “appeared sympathetic”.
The first part of the meeting dealt with Mr Brereton’s apparent inability to meet the visual acuity standards required to work under the Westrail contract.
Mr Brereton says he was told that he was to be terminated because of the problem with his right eye. Mr McKinnon and Mr Drury say he was told he couldn’t work on the trains because of his eyesight.
Mr Brereton disputed that the visual acuity in his right eye was 6/24. He objected to Chubb relying upon Dr Marsden’s assessment of his visual acuity, because he was unhappy with the manner in which the tests had been administered and because Dr Marsden was not a specialist. Mr McKinnon told Mr Brereton he should get an assessment from his own specialist.
Mr Brereton also pointed out that Dr Marsden had not properly administered a “pinhole test”, whereby a higher visual acuity measurement can sometimes be achieved if the person being tested looks at the Snellen chart through a pinhole. Mr Brereton argued that if the visual acuity in his right eye achieved a measurement of 6/18 with a “pinhole test” then that should qualify as a measurement of “uncorrected” vision. Mr McKinnon agreed to make enquiry as to whether a measurement using the pinhole test would be acceptable as a measurement of uncorrected vision for the purposes of the standards. He undertook to report back to Mr Brereton on that issue.
It was made clear in the course of the meeting that, if Mr Brereton were somehow able to correct his eyesight then he would be able to resume working under the Westrail Contract.
Mr Drury then raised other options for discussion. Mr Drury had been asked by asked by Mr McKinnon in the in the days prior to the meeting to investigate which other positions would be available to Mr Brereton.
He raised the possibility of Mr Brereton working as a patrol officer. Mr Brereton responded that that would be acceptable, but queried how it was that his eyesight was considered adequate for patrol work when it was not adequate to his work on the railway. Mr Drury or Mr McKinnon responded that it was Westrail, not Chubb who had a problem with his eyes. While I note this is not Chubb’s formal position, it is not unlikely that it was a convenient position for them to adopt in the context of this meeting
Mr Drury also raised the possibility of Mr Brereton working as a general “Level 2” security guard. Mr Brereton responded that he regarded himself as a bit beyond that position, in the sense that he was over-qualified, having completed the Service and Security Officer course.
Mr Drury finally raised the Level 3 positions which would soon be available within the Western Australian Art Gallery, where Chubb had recently won a tender to provide security services. The positions were not discussed in detail. Mr Drury says he knew that some positions would definitely be available for Mr Brereton, but he was not sure at that stage how many of the existing security staff at the Art Gallery Chubb would have to employ. Mr McKinnon recalls there was a “fairly certain probability” that Mr Brereton could get a job at the Art Gallery. Mr Brereton agreed to consider the position, but stated his preference for outside work.
Mr Brereton says he asked how he would be paid in the interim. He recalls being told that he was entitled to two weeks’ pay and that he would be all right for those two weeks. He says he understood it to be pay in lieu of notice.
Mr McKinnon believes they gave Mr Brereton a commitment to keep paying him at the Westrail rate until he was redeployed. He concedes he would have assumed they could have placed a limit on this arrangement if it proved difficult to redeploy him. Mr Drury also recalls that Mr Brereton was told that until he got a new position, he would be paid as if he was working on the railways.
The possibility of a supervisory position was raised by Mr Brereton, and while Chubb were not able to offer one immediately, Mr Brereton was left with the impression that there was a good prospect that he would end up as a supervisor in the future, given his merit and abilities.
At the conclusion of the meeting, Mr Brereton was not reconciled to the proposition that he would not be working under the Westrail Contract again. He told Mr McKinnon and Mr Drury that he would be consulting a specialist and a lawyer. Mr Drury believed that Mr Brereton was also considering the possibility of taking an Art Gallery position, and would advise Mr Drury of his decision.
Mr Brereton is adamant that when he left the meeting he believed that his employment had been terminated, and that he would have to apply for alternative positions within Chubb, “if they came up”.
Mr McKinnon and Mr Drury are equally adamant that Mr Brereton remained employed after that meeting, pending:
confirmation that the pinhole test or a specialist’s report did not result in Mr Brereton resuming his position as a Service and Security Officer; and
Mr Brereton accepting an alternative position within Chubb.
On the same day, 5 September 1996, Mr Price completed a “Notification of Engagement, Termination, Change, Transfer” form in relation to Mr Brereton , and forwarded it to Chubb’s payroll office. Mr Price had the task of organising rosters, calculating the hours of work and fortnightly wages of those employees who worked in Chubb’s Westrail Branch, using special software originally designed for the purpose before Chubb took over the business. The wages of the employees in the Westrail Branch were thus calculated separately, on a different and indeed incompatible computer system to that which calculated the wages of the rest of the Chubb workforce. The wage bill paid by Chubb to its employees in the Westrail Branch was ultimately recovered from Westrail, under the Westrail Contract.
The practical purpose of completing the form was to remove Mr Brereton from the Westrail Branch’s wage system and enter him into the central Chubb wage system, given that he was no longer being rostered on the railways.
Mr Price ticked both the “termination” and the “transfer” boxes on the form (notwithstanding the form’s instruction to “tick one”). Additional details were completed by Mr Price as follows:
“IF TERMINATION, give reason and details... ‘MEDICAL REASONS’...
IF TRANSFER, give details: From: W’RAIL & NOW CHUBB EMPLOYEE”
Mrs Maureen Witt, the pay office employee who processed the form, later noted on the form the following instructions (with abbreviations), which she believes she received from Mr Price or, less probably, Mr Drury:
“Fortnight ending 8/9/96. Paid up to date - Westrail. To be paid as normal until given new posting. Roster fortnight ending 22/9/96 84 hours, no overtime.”
On the Payment Advice Form completed by Mrs Witt for the fortnight ending 22 September 1996, she has noted:
“Transferred from W/rail to Guards”
The form completed by Mr Price noted that the change was to be effective from 5 September 1996. However, an examination of the pay records suggests that the change in the pay systems took effect from 22 September 1996. The pay records after that date are in a different format. A Group Certificate was issued for Mr Brereton as at 22 September 1996. Pay records after that date only take into account the earnings after that date when calculating “year to date” amounts.
On 6 September 1996, the day after Mr Brereton’s meeting with Mr McKinnon, Mr Brereton arranged to see an Ophthalmic Surgeon, Dr Phillip McGeorge.
The Snellen test measurements obtained by Dr McGeorge were less favourable than those obtained by Dr Marsden. He found that Mr Brereton had an unaided visual acuity of 6/45 in the right eye and 6/6 on the left, which improved to 6/12+ with correction on the right side and 6/4.5 corrected on the left.
Mr Brereton orally advised one of the managers at Chubb of these results, which did not lead to any reassessment of his suitability to work under the Westrail Contract.
On about Monday 16 September 1996, Mr Brereton was contacted by an officer of Chubb and told to go to the Art Gallery to “check out” the job there. As a result, Mr Brereton attended a one-day induction course, and began work as a Level 3 security guard with Chubb at the Art Gallery. His first shift was on Monday 23 September 1996. He was paid at the new rate from that date onward, having been paid at the Service and Security Officer rate until then. In the period from 30 August to 22 September 1996 he was paid his wages on his usual pay days. His accrued entitlements, eg Annual Leave, were not paid out.
On 20 September 1996, before beginning in the new position, Mr Brereton arranged to alter his Guard’s Licence, which he was required to hold under the Security Agents Act 1976, so that his employer was identified as “Chubb Security Australia Pty Ltd trading as Chubb Security”. His previous licence, obtained on 28 December 1995, had originally identified his employer as “Mayne Nickless Limited trading as M.S.S. Security”.
The new job at the Art Gallery is sedentary in nature, and is focused on the monitoring of about 50 security cameras by way of five closed-circuit television screens.
The Court heard evidence from Dr McGeorge, the consultant Ophthalmic surgeon, concerning Mr Brereton’s current eyesight.
Mr Brereton has, since the accident in 1981, had no sensation in the cornea of his right eye. As a result, he is susceptible to ulceration of his cornea, due to his inability to know when irritants have lodged in his eye. He wears glasses, not to correct his vision, but to protect his cornea. The tarsorrhaphy was performed for a similar reason.
The loss in vision in his right eye was caused by the scarring remaining after such episodes of ulceration. The scarring causes severe astigmatism - an error of refraction in the eye due to irregularities in the shape of the cornea. The scarring also means that Mr Brereton is unable to wear corrective contact lenses.
On 2 February 1998, Dr McGeorge saw Mr Brereton again and tested his vision. To Dr McGeorge’s surprise, it was much improved since the previous test, and would have met the revised objective visual acuity standards under the Westrail Contract.
Between September 1996 and February 1998, Mr Brereton had suffered a further episode of ulceration. Dr McGeorge hypothesises that the scarring from this episode may have “balanced” the scarring from previous episodes, thus leading to better visual acuity.
However, it is Dr McGeorge’s opinion that Mr Brereton will almost certainly suffer further ulceration in his right eye at some time in the future, which in turn is likely to lead to deterioration in the visual acuity of his right eye.
Whether there was a Termination of Employment for the Purposes of the Act
Chubb contends that Mr Brereton was merely transferred or redeployed from his original position as a Service and Security Officer on the railways with M.S.S. and, later, Chubb to his current position as a Chubb security guard with the Art Gallery. Chubb concedes that this redeployment amounts to the termination of Mr Brereton’s original contract of employment and its replacement with a new contract of employment on different terms and conditions. However, Chubb contends that there was no termination of the employment relationship, because Mr Brereton remained employed at all relevant times by Chubb.
This issue goes to the jurisdiction of the Court to deal with the claims, and thus must be dealt with first. The onus falls upon the applicant to show that Mr Brereton’s redeployment was a termination of employment for the purposes of the Act.
If it were the case that Mr Brereton was given notice of the termination of his employment on 5 September 1996, or indeed if his employment were terminated on that day, so that he was entitled to two weeks’ pay in lieu of notice, then there would have been a break in the employment relationship. Whether the employment ended on 5 September or on 19 September, when the notice period expired, there would be a break until 23 September, when he began his employment at the Art Gallery.
Mr Brereton says he left the meeting on 5 September 1996 believing he had been dismissed. He can point to some factors which support that proposition. They include:
the terminology used in the letter dated 4 September 1996, which refers to the proposed termination of his contract of employment, dismissal and possible re-employment;
the fact that Mr Brereton in fact received exactly two weeks’ pay between the meeting and commencing work at the Art Gallery.
Mr Price’s completion of the pay forms on 5 September is not inconsistent with Chubb’s position given the peculiar arrangements for the calculation of wages which were in place. The manner in which the form was completed may reveal some confusion in his mind as to Mr Brereton’s status, referring as it does to both a “termination” and a “transfer”. In a sense it is accurate, however, given Chubb’s contention that Mr Brereton’s contract was terminated, but his employment wasn’t.
The fact that Mr Brereton took out a new security licence of his own initiative merely reflects confusion on his part as to the identity of his employer, and an understandable perception in his mind that he was only then moving to work for Chubb.
Other factors support Chubb’s contention that Mr Brereton was to remain on the payroll at his usual wage rate, at least for the time being, until he was successfully redeployed. These factors include:
the fact that the option of redeployment had discussed within Chubb since early August 1996;
the fact, as I have found, that Mr McKinnon was left to enquire into the efficacy of a “pinhole test” after the meeting, suggesting that no final decision was made at the meeting concerning employment under the Westrail contract; and, most significantly
the arrangements that were put in place to pay Mr Brereton in the interim, including the instructions to Mrs Witt and the fact that accrued entitlements were carried over into his new position, instead of being paid out.
I am, in the circumstances, satisfied that there was no break in Mr Brereton’s employment relationship.
Chubb relies on the decision of the Full Court of the Industrial Relations Court of Australia in Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99 in support of its contention that Mr Brereton’s redeployment was not a termination of employment for the purposes of the Act.
In that case, the Full Court held that:
“... for the purpose of Division 3 of Part VIA of the Act, the relevant question is not whether there was a termination of the contract of employment but whether the applicant suffered ‘termination of his or her employment’: see s 170EA(1) of the Act. There is a conceptual difference between the two situations: see Siagian v Sanel Pty Ltd (1994) 1 IRCR 1 at 13-20. Ordinarily, the conceptual difference does not matter: dismissal will ordinarily terminate both the particular contract of employment and the employment relationship. In this case, however, Ms Brackenridge continued to be employed by Toyota after 3 February 1995. The employment relationship continued albeit under a new contract of employment.”
The Full Court went on to hold that the demotion of the applicant in that case did not constitute a “termination of employment” within the meaning of Division 3. They noted that the object of the Division is to give effect to the Termination of Employment Convention. Having regard to the preparatory work in relation to the relevant Convention, they found that it was clear that the Convention was not intended to refer to situations where there was no actual loss of employment.
Similarly, Mr Brereton suffered no actual loss of employment. Though the change to his employment is better characterised as a redeployment rather than a demotion, I can find no substantive distinction between the facts of this case and those considered by the Full Court in Brackenridge v Toyota Motor Corporation Australia Ltd.
While I am not technically bound to follow decisions of the Industrial Relations Court of Australia, they are clearly of the highest persuasive authority.
I therefore find that Mr Brereton’s redeployment was not a termination of employment for the purposes of the Act.
The question of whether Westrail’s actions were in breach of Sections 170DE or 170DF of the Act do not therefore arise for determination. Having heard evidence concerning those issues, I have recorded various findings of fact which would be relevant to any such determination. However, it would not be appropriate to go on to offer a view as to how the provisions would have been applied to those facts, had the Act applied.
Whether Mr Brereton’s Additional Claims Are Colourable
My decision that there was no termination of employment for the purposes of the Act turned in part on my findings concerning the effect of the meeting on 5 September 1996.
Had the Court accepted Mr Brereton’s entire version of events concerning that meeting, it may have led to a finding that there was a break in the employment relationship, with Mr Brereton dismissed on 5 September 1996 and then re-employed on 23 September 1996. That the two week’s pay “in lieu of notice” was not received immediately would not necessarily have been inconsistent with such a finding.
In the circumstances, I am satisfied that the claims under the Act were not made for the improper purpose of fabricating jurisdiction: Burgundy Royale Investments Pty Ltd & Ors v Westpac Banking Corporation & Ors (1987) 18 FCR 212. Accordingly I do not find the additional claims colourable.
Whether this Court Can Award “Remedies” under the Industrial Relations Act 1979 (WA)
Section 23 of the Industrial Relations Act 1979 (WA) broadly confers jurisdiction upon the Western Australian Industrial Relations Commission in the following terms:
Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter.
In addition to a general definition of “industrial matter” in Subsection 7 (1), Subsection 7 (1a) provides that:
“A matter relating to -
(a) the dismissal of an employee by an employer...
is and remains an industrial matter for the purposes of this Act even though their relationship as employer and employee has ended”.
Subsection 29 (1) permits an employee to refer his own claim to the Commission, rather than through the agency of an industrial organisation of which he is a member or through the Minister, where it is a claim “that he has been harshly, oppressively or unfairly dismissed from his employment.”
Subsection 23A provides that:
“On a claim of harsh, oppressive or unfair dismissal. the Commission may -
(a)order the payment to the claimant of any amount to which the claimant is entitled;
(b)order the employer to reinstate or re-employ a claimant who has been harshly, oppressively or unfairly dismissed;
(ba)... order the employer to pay compensation to the claimant for loss or injury caused by the dismissal; and
(c)make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this subsection.”
The applicant claims that his termination was in breach of the Industrial Relations Act 1979 (WA), in that his dismissal was harsh, oppressive and unfair, and he seeks from this Court reinstatement or compensation of his loss and injury under that statute.
I am of the view that this Court cannot exercise jurisdiction over claims of harsh, oppressive or unfair dismissal founded on the Industrial Relations Act 1979 (WA).
As is evident from the provisions cited above, the Industrial Relations Act 1979 (WA does not prohibit harsh, oppressive or unfair dismissals. Nor does it purport to create a statutory entitlement to a remedy for employees in the event of their harsh, oppressive or unfair dismissal, which entitlement might have been enforceable by other courts or tribunals.
The Western Australian legislature could have created such prohibition and entitlements if it wished to; it is not restricted by the constitutional restrictions of the Commonwealth Parliament. In my view, however, it has not done so.
Instead, the Industrial Relations Act 1979 (WA) confers upon the Western Australian Industrial Relations Commission a discretion to enquire into and deal with a claim of harsh, oppressive or unfair dismissal by making orders for, among other things, reinstatement or compensation. The only right created by the Industrial Relations Act 1979 (WA) in this regard is the right to bring the claim before the Commission. In enquiring into and dealing with the claim, the Commission is not enforcing an existing entitlement to reinstatement or compensation. Any such entitlement is only created if and when the Commission exercises its discretion to make such an order.
There is thus no entitlement to reinstatement or compensation under the Industrial Relations Act 1979 (WA) for this Court to enforce in its accrued or associated jurisdiction. Nor is there any basis upon which this Court could exercise the discretion vested by the Western Australian Act in the Commission.
Whether Mr Brereton is Entitled to Contractual Damages
Chubb concedes that Mr Brereton’s redeployment amounted to a termination of his contract of employment. Mr Brereton contends that it was also a breach of that contract.
Chubb rely on the provision within the letter of offer to the effect that:
“the employment may be terminated... by the Company by giving notice in accordance with the relevant Industrial legislation, or without notice on the basis of payment in lieu thereof”.
The relevant Industrial legislation, whether it be the Westrail - M.S.S. Security, W.A. Enterprise Agreement or Section 170DB of the Act, prescribes two weeks’ notice, or pay in lieu thereof, for an employee who, like Mr Brereton, has not more than three years continuous service and who is under the age of 45.
Mr Brereton contends that:
the existence of the Westrail Contract; and
Mr Price’s representations to Mr Brereton and the other Service and Security Officers concerning the security of their employment;
gave rise to a term of Mr Brereton’s contract of employment, whether express or implied, that Mr Brereton would be employed under the contract for a minimum term of three years and that he was entitled to notice of the termination of his contract amounting to not less that the remainder of the three year term.
I am satisfied that there was no express term of the contract to that effect. Mr Price’s statements can and should be regarded as relating to his expectations about the career prospects of the Service and Security Officers. I find that those statements were not intended to and could not reasonably have been understood to give rise to contractual obligations, especially given the terms of the written contractual documentation.
I am also satisfied that there was no implied term of the sort contended by Mr Brereton. It does not meet several of the limbs of the test set out by the Privy Council in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20. For example, the proposed term:
contradicts an express term of the contract;
is not necessary to give business efficacy to the contract, given the contract’s express provisions for the reimbursement of training costs; and
is not so obvious that it goes without saying.
Even if one takes the view that this is a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, so that the High Court decision in Hawkins v Clayton (1988) 78 ALR 69, (1988) 62 ALJR 240 has application, I am not satisfied that that the implication of the particular term is necessary for the reasonable or effective operation of the contract in the circumstances.
This leaves a final question concerning the requirement that Chubb give two weeks’ notice.
Certainly, Mr Brereton received two weeks’ pay at his usual rate of pay between the meeting on 5 September 1996 and commencing work at the Art Gallery on his new rate of pay on 23 September 1996.
Conclusion
I will therefore order that the application be dismissed.
I certify that this and the preceding thirty five (35) pages are a true copy of the Reasons for Judgment herein of the Judicial Registrar RD Farrell
Associate:
Dated: 24 February 1998
Counsel for the Applicant: Mr M. Cole Solicitor for the Applicant: Terrace Law Counsel for the Respondent: Mr A.J. Power Solicitor for the Respondent: Jackson McDonald Date of Hearing: 11, 12, 13 & 16 February 1998 Date of Judgment: 24 February 1998
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