City of Geraldton v Cooling
[2000] WASCA 346
•16 NOVEMBER 2000
CITY OF GERALDTON -v- COOLING [2000] WASCA 346
| WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT | Citation No: | [2000] WASCA 346 | |
| Case No: | IAC:4/2000 | 3 OCTOBER 2000 | |
| Coram: | KENNEDY J (Presiding Judge) SCOTT J PARKER J | 16/11/00 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | CITY OF GERALDTON DAVID JOHN COOLING |
Catchwords: | Industrial relations (WA) Unfair dismissal Order made for reinstatement of employee Whether Commission has jurisdiction to order in addition that employer pay the employee compensation for loss or injury caused by the dismissal |
Legislation: | Industrial Relations Act 1979 (WA), s 23A |
Case References: | Association of Draughting, Supervisory and Technical Employees Western Australian Branch v Robe River Iron Associates (1987) 67 WAIG 740 Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 City of Mandurah v Hull (2000) 80 WAIG 4319 Cliffs Western Australia Mining Co Pty Ltd v Association of Architects, Engineers, Surveyors and Draughtsmen (1978) 58 WAIG 10 Kwinana Construction Group Pty Ltd v The Electrical Trades Union of Workers (Western Australian Branch) Perth (1954) 34 WAIG 51 Princess Margaret Hospital for Children v The Hospital Salaried Officers Association of Western Australia (Union of Workers) (1975) 55 WAIG 543 Robe River Iron Associates v The Association of Draughting, Supervisory and Technical Employees of Western Australia (1988) 68 WAIG 11 Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 90 IR 211 The Australian Workers' Union West Australian Branch Industrial Union of Workers v Cockburn Cement Ltd (1999) 79 WAIG 1227 Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8 Bull v Attorney General (NSW) (1913) 17 CLR 370 Capewell v Cadbury Schweppes Australia Ltd (1998) WAIG 299 Christensen v Gwalia Consolidated Ltd (1992) 72 WAIG 2823 The Federated Miscellaneous Workers Union of Australia WA Branch v Boronia Day Care Centre Management Committee (1991) 71 WAIG 2493 Gilmore v Cecil Bros (1996) 76 WAIG 4434 Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, WA Branch (1984) 64 WAIG 852 Liddell v Lembke (1994) 127 ALR 342 Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 Simons v Ismail Holdings Pty Ltd (1998) 78 WAIG 2333 Tranchita v Wavemaster International Pty Ltd (1999) 79 WAIG 1886 Wilson v Wilson Tile Works Pty Ltd (1960) 104 CLR 328 Wylie v Carbide International Pty Ltd (1994) 55 IR 326 |
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : CITY OF GERALDTON -v- COOLING [2000] WASCA 346 CORAM : KENNEDY J (Presiding Judge)
- SCOTT J
PARKER J
- Appellant
AND
DAVID JOHN COOLING
Respondent
Catchwords:
Industrial relations (WA) - Unfair dismissal - Order made for reinstatement of employee - Whether Commission has jurisdiction to order in addition that employer pay the employee compensation for loss or injury caused by the dismissal
Legislation:
Industrial Relations Act 1979 (WA), s 23A
Result:
Appeal allowed
(Page 2)
Representation:
Counsel:
Appellant : Mr S R Edwards
Respondent : Mr A D Gill
Solicitors:
Appellant : Edwards Wallace
Respondent : Dwyer Durack
Case(s) referred to in judgment(s):
Association of Draughting, Supervisory and Technical Employees Western Australian Branch v Robe River Iron Associates (1987) 67 WAIG 740
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
City of Mandurah v Hull (2000) 80 WAIG 4319
Cliffs Western Australia Mining Co Pty Ltd v Association of Architects, Engineers, Surveyors and Draughtsmen (1978) 58 WAIG 10
Kwinana Construction Group Pty Ltd v The Electrical Trades Union of Workers (Western Australian Branch) Perth (1954) 34 WAIG 51
Princess Margaret Hospital for Children v The Hospital Salaried Officers Association of Western Australia (Union of Workers) (1975) 55 WAIG 543
Robe River Iron Associates v The Association of Draughting, Supervisory and Technical Employees of Western Australia (1988) 68 WAIG 11
Case(s) also cited:
Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 90 IR 211
The Australian Workers' Union West Australian Branch Industrial Union of Workers v Cockburn Cement Ltd (1999) 79 WAIG 1227
Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8
Bull v Attorney General (NSW) (1913) 17 CLR 370
Capewell v Cadbury Schweppes Australia Ltd (1998) WAIG 299
Christensen v Gwalia Consolidated Ltd (1992) 72 WAIG 2823
(Page 3)
The Federated Miscellaneous Workers Union of Australia WA Branch v Boronia Day Care Centre Management Committee (1991) 71 WAIG 2493
Gilmore v Cecil Bros (1996) 76 WAIG 4434
Hamersley Iron Pty Ltd v Association of Draughting, Supervisory and Technical Employees, WA Branch (1984) 64 WAIG 852
Liddell v Lembke (1994) 127 ALR 342
Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611
Simons v Ismail Holdings Pty Ltd (1998) 78 WAIG 2333
Tranchita v Wavemaster International Pty Ltd (1999) 79 WAIG 1886
Wilson v Wilson Tile Works Pty Ltd (1960) 104 CLR 328
Wylie v Carbide International Pty Ltd (1994) 55 IR 326
(Page 4)
1 KENNEDY J (Presiding Judge): Pursuant to the provisions of s 29(1)(b)(i) of the Industrial Relations Act 1979, the respondent, having been dismissed from his employment with the appellant on 24 October 1997, and claiming that he had been harshly, oppressively or unfairly dismissed, referred the matter to the Western Australian Industrial Relations Commission. The matter came on for hearing before Commissioner S A Cawley, who found that the respondent's dismissal had been unfair. Commissioner Cawley subsequently retired from her office, and the matter then came before Commissioner A R Beech, who ordered that the respondent be reinstated by the appellant in his employment as a litter truck driver and ordered in addition that the appellant pay to the respondent a sum equal to the wages he would have earned had he not been dismissed, less the money he had in fact earned since his dismissal.
2 The appellant appealed to the Full Bench against the decision of Commissioner Cawley on the ground that the Commission had no power to deal with the matter by reason of the fact that the respondent was covered by a federal award. It also appealed against the decision of Commissioner Beech on the ground that there was no power in the Act to make an order for payment of the sum awarded. The Full Bench dismissed the appeal and the appellant has now appealed to this Court against that decision on the following grounds:
(a) The Western Australian Industrial Relations Commission does not have jurisdiction to entertain a claim for relief for unfair dismissal by an employee (in this case, the respondent) whose employment is under an award of the Australian Industrial Relations Commission (in this case, the Municipal Employees (Western Australia) Award 1982).
(b) The Western Australian Industrial Relations Commission does not have jurisdiction to grant relief to an employee (in this case, the respondent) who has been found to have been unfairly dismissed in the form of an order for the reinstatement of the employee's employment together with an order that the employer (in this case, the appellant) pay the employee lost wages caused by the dismissal, they being separate and alternative forms of available relief.
3 Having regard to the subsequent decision of this Court in City of Mandurah v Hull (2000) 80 WAIG 4319, the first ground of appeal was not pursued.
(Page 5)
4 The remaining ground of appeal turns upon the proper construction of s 23A of the Industrial Relations Act. That section presently provides as follows:
"23A(1) 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) subject to subsections (1a) and (4), 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.
(1a) The Commission is not to make an order under subsection (1)(ba) unless -
(a) it is satisfied that reinstatement or re-employment of the claimant is impracticable; or
(b) the employer has agreed to pay the compensation instead of reinstating or re-employing the claimant.
(2) An order under subsection (1) may require that it be complied with within a specified time.
(3) If an employer fails to comply with an order under subsection (1)(b), the Commission may, upon further application, revoke that order and, subject to subsection (4) make an order for the payment of compensation for loss or injury caused by the dismissal.
(4) The amount ordered to be paid under subsection (1)(ba) or (3) is not to exceed 6 months' remuneration of the claimant, and for the purposes of this subsection the Commission may calculate the amount on the basis of an
(Page 6)
- average rate received during any relevant period of employment.
- (5) For avoidance of doubt, an order under subsection (1)(ba) may permit the employer concerned to pay the compensation required in instalments specified in the order."
- This section must be read with s 23(3)(h), which provides that the only orders which may be made on a referral of a claim of harsh, oppressive or unfair dismissal are those authorised by s 23A.
5 Section 23A, which was inserted in the Act in 1993, has a significant history. The Industrial Arbitration Act 1912, by s 61, conferred jurisdiction on the then Court of Arbitration to settle and determine industrial matters and disputes. The expression "industrial matters" was defined in s 6 to include "all matters relating to "…. the dismissal of or refusal to employ any person or class of persons" in any industry. In Kwinana Construction Group Pty Ltd v The Electrical Trades Union of Workers (Western Australian Branch) Perth (1954) 34 WAIG 51, Jackson P, with whom Mr Davies agreed, affirmed the Court's jurisdiction to order reinstatement "and such other incidental matters, including payment of wages from the time of dismissal as the Court considers just and equitable".
6 In 1963, s 61 of the Act was repealed and replaced by a new section. Section 61(2)(d) clearly was designed to prohibit the Commission from ordering any employer to employ or to continue to employ or to re-employ any worker, other than in certain very limited circumstances. Ten years later, s 61(2)(d) was deleted from the section.
7 In 1975, in Princess Margaret Hospital for Children v The Hospital Salaried Officers Association of Western Australia (Union of Workers) (1975) 55 WAIG 543, Burt J, with whom Wickham and Wallace JJ agreed, affirmed the jurisdiction of the Commission to make an order requiring the appellant hospital to re-employ a worker, but his Honour questioned the power of the Commission to "reinstate" a worker. He accepted that there was jurisdiction under the former Act to order payment of a money sum representing lost wages, subject to taking into account any wages received by the worker in other employment since his dismissal.
8 In Cliffs Western Australia Mining Co Pty Ltd v Association of Architects, Engineers, Surveyors and Draughtsmen (1978) 58 WAIG
(Page 7)
- 1067, the Commission in Court Session determined that, in the absence of an order for the reinstatement of a worker who had been harshly and unjustly treated, the Commission had power to order compensation to that worker for the loss of his job. What the compensation should be, it was said, would "depend upon the circumstances of the individual case but the nature and salary of the position, together with the likelihood of gaining similar employment elsewhere, housing and related matters, disruption to family life are factors which come readily to mind".
9 The present Act was enacted in 1979. In 1982, s 96I was inserted, conferring upon the Commission, upon the transmission to it of the matter by an Industrial Magistrate who had convicted an employer of an offence under s 96B or s 96F, the power to order the employer -
(i) to reinstate the complainant in his employment;
(ii) to pay to the complainant such sum of money as the Commission considers adequate as compensation for loss of employment or loss of earnings; or
(iii) both to reinstate the complainant in his employment and to pay him the sum of money referred to in subparagraph (ii),
as is appropriate in the circumstances, and as the Commission considers just. Sections 96B and 96F related to conduct by employers and others prejudicing employees and others by reason of membership, or non-membership, of employee organisations, and to discriminatory and other action against persons by reason of non-membership of employee organisations.
10 The manner in which the Commission's powers were expressed in s 96I may be of some significance. That section made it abundantly clear that the Commission could order both reinstatement and compensation if it considers it to be appropriate for it to do so.
11 In Association of Draughting, Supervisory and Technical Employees Western Australian Branch v Robe River Iron Associates (1987) 67 WAIG 740, at 744, Olney J said: "When a dismissed employee seeks an order for re-employment following a claimed unfair dismissal it must be assumed that if offered re-employment same will be accepted", and, he added, it followed that any award of a money sum representing wages lost in the period between dismissal and re-employment is payable only upon re-employment. In the same year, in Robe River Iron Associates v The Association of Draughting, Supervisory and Technical Employees of Western Australia (1988) 68 WAIG 11, which has come to
(Page 8)
- be known as Peplar's case, this Court determined that the Commission had no jurisdiction to award a dismissed employee compensation or any other money payment except as an incident to an order for reinstatement or re-employment. Olney J noted in that case his having some difficulty with the passage quoted above in the Cliffs Western Australia Mining Co Pty Ltd case. Peplar's case, although challenged from time to time, has never been overruled.
12 In 1993, s 23A was inserted in the Act and the former s 96I was repealed. At the same time, par (h) was inserted in s 23(3). The new paragraph prohibited the Commission, in the exercise of the jurisdiction conferred upon it by Pt 2 of the Act, which is concerned with the jurisdiction and powers of the Commission, from making any order "on a referral of a claim of harsh, oppressive or unfair dismissal except an order that is authorised by s 23A". In 1995, a new s 23(3)(h) was substituted. For the present purposes, it did not differ significantly from the original s 23(3)(h). Section 23A(1) was also amended by adding par (ba), which is the provision which, subject to subsections (1a) and (4), confers on the Commission the power to pay compensation to a claimant for loss or injury caused by a dismissal. The new subsection (1a) prohibited the Commission from making an order under par (ba) unless it was satisfied that reinstatement or re-employment of the complainant was impracticable. Certain consequential amendments were also made. In 1997, subsection (1a) of s 23A was replaced by the present subsection, and subsection (5) was added to the section.
13 In his Second Reading Speech in the Legislative Assembly on 20 March 1997, referring to the 1997 amendments, the Minister for Labour Relations explained that the Bill provided greater choice for employers in dealing with employees who have had unfair dismissal claims resolved in their favour - "employers can now decide whether they wish to compensate employees for loss or injury caused by the dismissal instead of reinstatement or re-employment". (my emphasis). That is the language of s 23A(1a).
14 In my opinion, no general power has been conferred upon the Commission to award compensation for damage or injury caused by a harsh, oppressive or unfair dismissal. Having regard to the terms of s 23(3)(h), as already indicated, the only orders which may be made by the Commission on a referral of a claim of harsh, oppressive or unfair dismissal are those authorised by s 23A. Within that section, on its proper construction, the power to order compensation can only be derived from s 23A(1)(ba), which is subject to subsections (1a) and (4). By
(Page 9)
- subsection (1a), the Commission is prohibited from making such an order unless it is satisfied that reinstatement or re-employment of the claimant is impracticable, or the employer has agreed to pay the compensation instead of reinstating or re-employing the claimant. Section 23A(3) also carries the implication that an order for reinstatement cannot coexist with an order for compensation.
15 The order of the Commission at first instance which the Full Bench upheld was for the payment to the respondent of "a sum of money equal to the wages he would have earned had he not been dismissed, less the moneys earned by him since his dismissal". In upholding that decision, in my respectful opinion, the Full Bench failed to have sufficient regard to the nature of the respondent's claim, which was in reality a claim for unliquidated damages for wrongful dismissal and quite clearly a claim for compensation for loss or injury caused by the respondent's dismissal within the meaning of s 23A(1)(ba). The nature of such a claim was discussed in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, in which the High Court was concerned with the effect of the National Security (Man Power) Regulations upon a purported dismissal of an employee covered by those regulations. At 465, Dixon J said:
"A contract for the establishment of the relation of master and servant falls into the same general category of agreements to pay in respect of the consideration when and so often as it is executed, and is, therefore, commonly understood as involving no liability for wages or salary unless earned by service, even though the failure to serve is a consequence of the master's wrongful act."
- His Honour went on, at 465 - 466, to say:
"It is, of course, possible for the parties to make a contract for the payment of periodical sums by the master to the servant independently of his service. Indeed that is, in effect, what the Duke of Westminster persuaded the majority of the House of Lords he had done in Inland Revenue Commissioners v Duke of Westminster [1936] AC 1. But, to say the least, it is not usual. The common understanding of a contract of employment at wages or salary periodically payable is that it is the service that earns the remuneration and even a wrongful discharge from the service means that wages or salary cannot be earned however ready and willing the employee may be to serve and however much he stand by his contract and decline to treat it as discharged by breach [references omitted].
(Page 10)
- His only remedy is in unliquidated damages for wrongful dismissal. By keeping his contract open, he may be able to resume his service without a new contract, if his employer is induced to retract the discharge ….
Some difficulty has been felt in saying what is the service which carries wages. The wages are incident to the subsisting relationship of master and servant. A master who sends his servant upon a holiday upon full pay can be sued for wages under the contract, although not on a common count for work and labour done. They also serve who only stand and wait. Difficulties, too, arise from the fact that a refusal to work on the part of a servant, who neither leaves his master's service nor is discharged, may disentitle him to wages for the period of the refusal. That is for non-fulfilment of the conditions by which wages are earned. But, broadly speaking, it is enough to say that wages are for the service reasonably demanded under a subsisting relationship of master and servant. That relationship may be ended by the servant forsaking the master or the master discharging the servant, although the act of the one or of the other amounts to a breach of contract."
- See also Latham CJ at 455, Starke J at 461 - 462, and Williams J at 476.
16 The Full Bench found the power to award "lost wages" in s 23A(1)(a) or, in the alternative, in s 23A(1)(c), despite the fact that s 23A(1a) makes it abundantly clear that an order for compensation for loss or injury caused by a harsh, oppressive or unfair dismissal cannot be made unless either the Commission is satisfied that reinstatement or re employment of the claimant is impracticable - which obviously it was not in this case - or the employer has agreed to pay the compensation instead of reinstating or re-employing the claimant - which was never suggested as having occurred.
17 Furthermore, there is a limit of six months' remuneration of the claimant imposed upon orders for the payment of compensation for loss or injury caused by a dismissal. It would, in my view, be an anomalous result if a claimant who has been harshly, oppressively or unfairly dismissed, but with respect to whom reinstatement or re-employment is impracticable, is caught by the limitation, but that a claimant who is reinstated is not caught by it. However, if the opinion of the Full Bench is correct, this would be the result.
(Page 11)
18 In my opinion, a claim under s 23A(1)(a) is not an alternative to a claim under s 23A(1)(ba). The former paragraph, in my view, is intended to relate to a claimant's accrued rights at the time of dismissal, although a question does arise regarding entitlements under an award, industrial agreement or certain orders, having regard to s 83(1)(1a) of the Act which gives exclusive jurisdiction in such claims to the Industrial Magistrates Court.
19 In my opinion, there can be no basis for arguing that an order for compensation for loss or injury caused by a dismissal may be made as an "ancillary or incidental order" "for giving effect to any order made under [s 23A(1)]". Although in the Kwinana Construction Group Pty Ltd case (supra), Jackson P referred to lost wages as an incidental matter, he was dealing with quite different legislative provisions. The powers of the court in that case were extremely broad and the order was made pursuant to the general power to determine industrial matters and disputes. It was not made under an "incidental power" in the legislation.
20 Section 23A(1)(ba) is a specific provision covering claims for compensation for loss or injury caused by the dismissal. Claims for compensation for wages lost following a dismissal come within that provision and are subject to the restrictions imposed by s 23A. Those restrictions cannot be avoided by resorting to the more general provisions in s 23A(1).
21 In the circumstances, I would allow this appeal and quash the order for compensation.
22 SCOTT J: I have had the opportunity of reading in draft the reasons to be published by the Presiding Judge. I agree with those reasons and the orders which his Honour proposes.
23 PARKER J: I agree with the reasons and orders proposed by Kennedy J.
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