Cox v South Australian Meat Corporation

[1995] IRCA 245

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - REVIEW OF DECISION OF JUDICIAL REGISTRAR - factual finding based on Judicial Registrar's impression of witnesses - agreement by parties that the review be treated as an appeal by way of rehearing - whether termination HARSH, UNJUST OR UNREASONABLE - whether REINSTATEMENT IMPRACTICABLE - MEASURE OF COMPENSATION.

Industrial Relations Act 1988, ss 170EE and 377

Matter No. SI 226 of 1994

PETER COX  v  SOUTH AUSTRALIAN MEAT CORPORATION

VON DOUSSA J

ADELAIDE

13 JUNE 1995

IN THE INDUSTRIAL COURT     )
  )
OF AUSTRALIA SOUTH          )    No. SI 226 of 1994
  )
AUSTRALIAN DISTRICT REGISTRY )

On review from Judicial Registrar Farrell

BETWEEN:  PETER COX

Applicant

AND:     SOUTH AUSTRALIAN
  MEAT CORPORATION

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER          :    VON DOUSSA J.

WHERE MADE                  :    ADELAIDE

DATE OF ORDER               :    13 JUNE 1995

THE COURT:

1. Declares that the termination of the applicant's employment on 14 October 1994 contravened s.170DE of the Act.

2. Orders that the respondent pay to the applicant $12,740.

Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL COURT     )
  )
OF AUSTRALIA SOUTH          )    No. SI 226 of 1994
  )
AUSTRALIAN DISTRICT REGISTRY )

On review from Judicial Registrar Farrell

BETWEEN:  PETER COX

Applicant

AND:     SOUTH AUSTRALIAN
  MEAT CORPORATION

Respondent

Coram: von Doussa J
Place: Adelaide
Date : 13 June 1995

REASONS FOR JUDGMENT

On an application made under s.170EA of the Industrial Relations Act 1988 (Cth) ("the Act") a Judicial Registrar found that the termination of the employment of the applicant on 14 October 1994 was harsh, unjust and unreasonable; that reinstatement was impracticable; and that the applicant should be awarded $8,500 by way of compensation. Both the applicant and the respondent now seek a review of that decision under s.377 of the Act.

A review under s.377 is a hearing de novo: Association of Professional Engineers, Scientists and Managers Australia v Deniliquin Council (Moore J, 10 March 1995, as yet unreported) and Gibson v Bosmac Pty Ltd (Wilcox CJ, 5 May 1995, as yet unreported).  In the latter decision the learned Chief Justice observed at p.4:

"The term 'hearing de novo' is perhaps ambiguous.  It may be understood to mean a hearing conducted as if there never had been a hearing before the Judicial Registrar; everything concerning that hearing being completely ignored.  Alternatively, it may be understood to mean no more than a hearing at which the parties are not bound by the course they took before the Judicial Registrar, where they have the right to adduce such further evidence as they wish, perhaps to adopt positions and put contentions different from those adopted before, and put to, the Judicial Registrar; and, of course, where the Judge is not bound by the Judicial Registrar's findings of fact.  Like Moore J, I think a review hearing is a 'hearing de novo' in the latter sense."

In the present matter counsel for both parties informed the Court that they did not wish to adduce further evidence, and in particular did not wish to recall the principal participants in the events which gave rise to the termination of the applicant's employment.  This intimation was given after the Court had drawn to the attention of the parties that in her reasons for judgment the Judicial Registrar had expressly stated that her conclusions on two questions, namely whether the reinstatement of the applicant was impracticable, and whether the applicant had made  reasonable attempts to mitigate his loss by seeking alternative employment, were in part based on her observations of the applicant as a witness.  The parties informed the Court that as neither side desired to recall witnesses, they consented to the Court treating the review as if it were an appeal by way of rehearing.  In Warren v Coombes & Another (1979) 142 CLR 531 it was held that the duty of an appellate court hearing an appeal by way of rehearing is to decide the case - the facts as well as the law - for itself. In so doing it would recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal considered that in the circumstances the trial judge was in no better position to decide the particular questions than they are themselves, or if, after giving full weight to the trial judge's decision, they considered that it was wrong, they must discharge their duty and give effect to their own judgment. The Court held that there was no reason in logic or policy to regard inferences drawn from primary fact as matters peculiarly within the province of the trial judge who enjoys no significant advantage in drawing such inferences.

Where however an attack is mounted upon findings of primary fact where those findings may depend in part upon questions of credibility, upon an appeal by way of rehearing an appellate court "cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusions...'", Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178.

The agreement by parties that the review is to be conducted as if it were an appeal by way of rehearing must considerably restrict the scope of the review process.  In Association of Professional Engineers, Scientists and Managers Australia v Deniliquin Council Moore J considered that the mere fact that a Judicial Registrar had observed that the applicant impressed him as a witness, and that the evidence of several of the respondent's members was "unsatisfactory", did not necessarily mean that witnesses should be recalled upon a review to give their evidence orally even where the scope of the review was not restricted by some agreement between the parties.  His Honour, at 17-18 observed that the Judicial Registrar's views were, in a sense, immaterial.  What was pertinent was whether there was any conflict in material evidence that would need to be resolved in deciding the application in the review where the demeanour of the witnesses might be relevant to its resolution.  In the present case on the question whether it would be impracticable to reinstate the applicant, there was conflicting evidence from both sides.  On the other question, whether the applicant had made serious attempts to mitigate his loss, there was only the evidence of the applicant but the Judicial Registrar was required to decide whether, and to what extent she would accept that evidence, and in my opinion the same principles would apply in that situation to one where there was an express conflict.  The significance of the agreement by the parties that this review be conducted as if it were an appeal by way of rehearing becomes significant when considering each of these questions.

The applicant had been employed by the respondent as a maintenance fitter for a period of approximately 8½ years when his employment was terminated.  At relevant times in 1994 the applicant was an elected shop steward of the Automotive, Food, Metals and Engineering Union (AFMEU).  On 14 September 1994 a meeting of the respondent's maintenance employees had been held at the respondent's abattoirs.  The purpose of the meeting was to put forward matters which would assist them in obtaining a pay rise under an enterprise bargaining agreement.  For some months the respondent had been concerned about the lack of flexibility on the part of its tradespeople at the work site, and there had been discussions between employees and management directed at increasing the range of skills which tradesmen engaged under particular job descriptions would undertake, subject to them having the necessary skills and qualifications.  The tradespeople concerned had expressed a willingness to pursue "multi-skilling" subject to reaching agreement as to their remuneration for performing additional skills.  Against that background the maintenance employees voted in favour of certain proposals that were incorporated in a document provided to the general manager of the respondent which read as follows:

"14th September 1994

Mr D. Lilley (S.A.M.C.O.R. General Manager)

The maintenance employees meeting held at 9.30 a.m. on the 14th September 1994 moved and passed the following points.

(1)Staff and Production Personnel will not engage in maintenance duties.

(2)No multi skilling by maintenance employees to be performed until a satisfactory enterprise bargaining agreement is reached.

(3)Members believe that some pay classifications are under the award rates and want this discrepancy corrected.

(4)Maintenance employees ask management that the maintenance amenities building (i.e. lunch room, ablutions and locker room) be serviced.

(5)Maintenance employees are concerned that Production Personnel passing through the workshop is a safety hazard and a health hazard to both themselves and maintenance employees.  Could this be rectified.

The meeting asked for an undertaking by management be given, by 9.30 a.m. Friday 16th September 1994, that these points will be addressed.

(Signed) P Cox

Shop Steward

AFMEU"

That document was provided to Mr Lilley, and came to the attention of Mr Barton, the Chief Engineer of the respondent who, through supervisors, was the staff member responsible for the maintenance employees.  By letter dated 16 September 1994 Mr Lilley offered to meet with representatives of the maintenance employees to discuss the matters outlined in the above document, but the evidence led before the Judicial Registrar does not disclose the outcome of that meeting or the state of further negotiations, if any, that had taken place between the respondent and the maintenance employees on enterprise bargaining.

Points 1 and 2 resolved upon by the maintenance employees on 14 September 1994 are alleged by the applicant to be relevant to the events which surrounded the termination of his employment.  He contends that one of the multi-skilling activities comprehended by point 2 was that of forklift driving by maintenance fitters.  The maintenance employees at their meeting on 14 September 1994 apparently took the view that forklift driving was a function to be performed by trades assistants.  Whether the officers of the respondent understood that the issue of multi-skilling raised by the maintenance employees extended to forklift driving by maintenance fitters is not a matter that was explored in the evidence. 

In about October 1993 a number of maintenance fitters had been trained, and obtained the appropriate licences, to drive forklifts.  The applicant was one of them.  He had obtained the licence in the course of his employment, and on occasions he had driven a forklift when a trades assistant was not available.  However he had not done so since the meeting of 14 September 1994, although it is not suggested that any occasion for him to do so had arisen.

On the day of the termination, towards the end of the day shift, a conveyor chain which moved dressed sides of beef to the chiller became dislodged from an overhead sprocket.  Another maintenance fitter, Mr Walker, who also held a licence to drive a forklift, considered that there might be a serious risk of injury if the chain fell.  To inspect the chain and sprocket, and to assess the risk, it was necessary to use a forklift fitted with a safety cage to raise a maintenance fitter to the level of the sprocket.  No trades assistant was available.  Of the two normally on duty, one was on a rostered day off and the other had clocked off sick at midday.  Mr Walker obtained a forklift and drove it to the site.  An inspection revealed that there was no risk of the chain dislodging.  Sides of beef could be, and were being, moved manually into the chiller.  Repairs could not be undertaken until product on the line from the day's kill had been moved into the chiller.  Mr Walker moved the forklift away to await the clearing of the line. 

The applicant became aware that Mr Walker had driven the forklift, and reminded him of the outcome of the meeting of 14 September 1994.

At about 3.30 p.m. the applicant was requested, and then directed to drive the forklift by Mr Barton to enable the conveyer to be repaired.  At this time killing for the day had stopped and presumably carcasses would shortly have moved passed the site.  The inference from the evidence is that killing would not have resumed until the following Monday.  The applicant refused, saying that forklift driving was not his job.  He referred to the meeting on 14 September 1994 and said "we" (the fitters) were not going to work outside the Award.

Mr Barton withdrew and consulted the applicant's supervisor Mr Walkinshaw.  Mr Walkinshaw then directed the applicant to drive the forklift.  Again he refused saying it was not his job.  After refusing to perform the task the applicant informed Mr Walkinshaw that the Award (The South Australian Meat Corporation Award 1992) provided that it was the job of a trades assistant.  Mr Walkinshaw suggested alternatives.  He suggested that a Mr Bowman, who held a forklift driver's licence, would be called in on Saturday morning and that the repairs could be conducted.  The applicant agreed to work overtime for that purpose but refused to work with Mr Bowman as he was a production worker (see point 1 of the resolutions of 14 September 1994).  It was then suggested that a staff member could drive the forklift, and again Mr Cox refused (see point 1).

Messrs Barton and Walkinshaw withdrew and consulted the Award.  They also consulted Mr Lilley.  They informed him that they considered the Award was silent on the question.  Mr Lilley instructed them that they should require the applicant to drive the forklift, and if he refused to perform his duty he should be dismissed.

Messrs Barton and Walkinshaw again spoke with the applicant.  Mr Walkinshaw instructed him that he was required to drive the forklift.  The applicant understood that his employment would be under threat if he refused.  He nevertheless maintained his position that it was not his job.  Upon his refusing three requests to perform the task he was dismissed.

Messrs Barton and Walkinshaw then approached Mr Walker, the only other maintenance fitter on duty who held a licence to drive a forklift.  He was requested to perform the task.  He too declined saying that it was not his job.  There is some dispute as to what Mr Walker said at the time, but it is common ground that he conveyed to Messrs Barton and Walkinshaw that he considered that he was acting in accordance with the position of the Union that it was not the function of a maintenance fitter to drive a forklift.

That evening a letter was delivered to the applicant at his home confirming that he had been dismissed "because of a serious and wilful misconduct resulting from your refusal to carry out duties, specifically to drive a forklift".

Meat production did not stop because of the breakdown on 14 October 1994.  The chillers were loaded by the sides of beef being manually pushed.  Whilst the evidence established that manual pushing of beef was not an unusual event when breakdowns occurred, there was some potential risk to safety as the sides were heavy, and had been known to fall.  So there was a need to have the conveyor repaired before the next kill commenced, but no urgency to have the task performed there and then.

The Award is silent on whether the duties of a maintenance fitter include driving forklifts. Appendix A to the Award inserted on 22 June 1993 deals specifically with maintenance workers. Clause 3 - contract of employment - provides that employment shall be by the week, and that an employee to become entitled to payment of a week's wages "shall perform such work as the employer shall from time to time require..." Clause 11 of the Appendix provides that trades assistants when directed to use forklifts will be paid 44¢ per hour as an extra rate. Those provisions do not as a matter of interpretation provide that maintenance fitters shall not drive a forklift, or that forklift driving is the exclusive province of trades assistants. The Judicial Registrar, after referring to the Award, said that the applicant's assumption that maintenance fitters were not obliged to drive was wrong. She found that the instruction to the applicant to drive the forklift was a lawful instruction, and one reasonable in the circumstances. The applicant failed to follow that instruction, and, prima facie, the employer had a valid reason to terminate his employment: s.170DE(1).

I agree with that conclusion.  Notwithstanding the careful and well presented arguments of counsel for the applicant, the finding of the Judicial Registrar that forklift driving constituted part of the applicant's duties was correct.  Nothing in the Award supports the argument to the contrary.  Although some maintenance fitters did not have licences to drive forklifts, in the applicant's case he had undertaken the requisite training at the request of the employer and in the employer's time so that he had this skill when required.  In the ordinary course forklift driving was performed by a trades assistant but when emergency situations arose or the exigencies of the job otherwise required, the evidence shows not only that the respondent expected the maintenance fitters to drive forklifts, but that those with licences had done.

The Judicial Registrar then considered whether any aspect of the termination was harsh, unjust or unreasonable so as to render the termination unlawful under s.170DE(2). The Judicial Registrar said:

"He was an employee of eight years standing.  He refused a duty which was not one of his usual duties.  It was an occasional duty.  The background to his refusal related to a dispute about wages and in my view it would have been appropriate for some alternative resolution process to be put in place by the employer.  The Respondent argued that the Applicant (sic - the Union) should have taken steps to resolve the dispute following its correspondence dated 16 September 1994.  The employer, in my view, also had obligations in that regard.

It is to be noted that the events surrounding Mr Cox's dismissal took place in less than an hour and a half.  In my view his refusal to perform duties did not go to the heart of the contract because the duty he refused to perform was something only occasionally required of him and did no more than inconvenience the employer on the day in question.  I am of the view that the termination of this Applicant by the Respondent was harsh, unjust and unreasonable."

The respondent contends that in reaching this conclusion by the process of reasoning adopted the Judicial Registrar erred.  Whilst the length of service of the applicant is conceded as a relevant factor it is contended that it was only of marginal relevance in the circumstances.  Whether or not the duty refused to be performed was a usual duty, it is said, is irrelevant; it formed part of the applicant's contract of employment and the employer was entitled to require performance.  That the refusal was related to a wages claim is similarly said to be irrelevant as was the observation that the respondent should have used an alternative resolution process.  It is argued that it was not harsh, unjust or unreasonable to terminate the applicant's employment following his repeated refusals when requested to perform a duty which, it is contended, constituted a fundamental breach of contract.  In any event it is said that the respondent did attempt to resolve the matter before terminating the applicant's employment by offering the alternatives of using Mr Bowman or a staff member to drive the forklift.

The words "harsh, unjust or unreasonable" are ordinary, non technical words which are intended to apply to an infinite variety of situations where employment is terminated.  In Bostik (Australia) Pty Ltd v Gorgevski (No.1) (1992) 36 FCR 20 at 28 Sheppard and Heerey JJ said of these words:

"We do not think any redefinition or paraphrase of the expression is desirable.  We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable.  Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer.  Any harsh effect on the individual employee is clearly relevant but of course not conclusive.  Other matters have to be considered such as the gravity of the employee's conduct." 

In Gregory v Philip Morris Limited (1988) 80 ALR 455 at 471 Wilcox and Ryan JJ said in relation to an award provision that required that "termination of employment by an employer should not be harsh, unjust or unreasonable" that it was intended to deal with actual industrial situations, requiring that a termination of a particular individual shall not be harsh, unjust or unreasonable. The application of the clause required consideration of the circumstances of each case as they exist when the decision is taken to terminate the particular employee. It is not decisive that upon traditional common law principles the termination of the contract of employment was lawfully justified on the ground that the employee had been guilty of misconduct warranting summary dismissal. As King CJ observed in R v Industrial Court; ex parte Mount Gunson Mines Pty Ltd (1982) 30 SASR 504 at 506, the mere circumstance that the dismissal was lawful according to the general law of contract is a point in the employer's favour whose cogency will depend upon the circumstances, and not a complete answer to an allegation that the termination was harsh, unjust or unreasonable.

In light of these expressions of principle, the lawfulness or otherwise of the termination of the applicant's employment is not to be resolved on a technical and sterile application of traditional principles of the law of contract to the contract of employment, as the submissions of the respondent urge. Such an approach would exclude from consideration circumstances of the industrial situation which prevailed when the decision to terminate the applicant occurred, and which are important to the objective assessment that must be made having regard to the overall circumstances. The respondent's argument fails to have regard to the developments in the industrial law brought about by the enactment of Division 3 of Part VI of the Act.

In my opinion the various considerations taken into account by the Judicial Registrar in reaching her conclusion were entirely appropriate.  There was no dispute on the evidence that whilst the applicant had as an employee of the respondent obtained his licence to drive a forklift, the requirement for him to do so was only an occasional duty.  That fact assumes particular importance in the context of the enterprise bargaining negotiations that had commenced with the delivery of the points resolved by the maintenance employees on 14 September 1994.  The clear inference from the evidence of the applicant and his witnesses is that they believed that they were acting in pursuit of bona fide industrial action to further negotiations for an enterprise bargain.  This fact should have been apparent to Mr Barton and Mr Wilkinshaw from their discussions with the applicant and Mr Walker.  This is not a case involving a persistent refusal to perform duty by an employee based on his own idiosyncratic view of the Award. 
     As there was no pressing urgency for the immediate repair of the conveyor, and as the carcasses from the day's kill would have been moved manually in any event before the repairs to the conveyor, I think the submissions made on the applicant's behalf that some attempt should have been made by the respondent to pursue some alternative resolution process is entirely justified.  Plainly to dismiss a long standing employee would have harsh consequences on him.  The ultimate sanction of termination could probably have been avoided by the respondent making a more sustained effort to obtain a trades assistant either on the Saturday morning or first thing the following Monday morning to repair the conveyor, a job that was anticipated to take less than one hour.  Alternatively other officers of the Union could have been contacted to explore some interim step to overcome the immediate problem pending further discussion on the enterprise bargaining agreement.

In my opinion the decision of the Judicial Registrar that the termination of the applicant's employment by the respondent was harsh, unjust or unreasonable should be confirmed.  That is a view which I have formed upon a review of the evidence, and it does not depend upon any finding made by the Judicial Registrar which was dependent upon her assessment of the witnesses.

The next question which follows is that raised by the applicant in his application for review, namely whether upon the evidence it should be held that his reinstatement is impracticable.  Based upon passages from the judgment of Gray J in Liddell v Lembke (1994) 127 ALR 342 at 367 counsel for the applicant argued that "impracticable" in s.170EE should be interpreted to mean practically impossible, and that the evidence did not show practical impossibility. The views of Gray J did not represent the views of all members of the Full Court. Wilcox CJ and Keely J at 360, whilst saying that it was plainly Parliament's intention that the primary remedy for unlawful termination should be reinstatement, and that compensation should be available only where this was impracticable, left open the precise meaning of "impracticable" as that question had not been fully argued in the case. However in Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 244 Wilcox CJ said:

"One of the amendments to Pt VIA made in June 1994 was the substitution of a new s 170EE. Under the substituted section, the first task of the court, in considering relief, is to consider whether reinstatement is practicable. Compensation for loss of the job (as distinct from lost remuneration) may be awarded only if reinstatement is 'impracticable'. It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible. The word 'impracticable' requires and permits the court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business, it may be 'impracticable' to order reinstatement, notwithstanding that the job remains available."

I respectfully agree with the interpretation placed on "impracticable" by Wilcox CJ.

The applicant in his evidence sought reinstatement and, by implication at least, asserted there was no practical reason why he should not resume his former employment.  Mr Walkinshaw, said that whilst on the whole his relationship with the applicant had been good, he considered that SAMCOR would have a problem with him if he were re-employed unless there was an attitude change.  Mr Barton did not question the applicant's skills, but considered that the applicant's angry disposition and attitude would have a negative effect upon the team of maintenance fitters if he were to be reinstated.  If the matter were to be decided de novo upon the papers the decision would be a difficult one to make.  It is in this context that the weight given by the Judicial Registrar to her own assessment of the applicant assumes importance.  As the parties have agreed that the matter should be heard as if it were an appeal by way of rehearing this Court must acknowledge the advantage enjoyed by the Judicial Registrar who saw the witnesses give evidence.  It is not suggested by either counsel that the Judicial Registrar in any way misused the advantage which she had in arriving at her conclusion.  Indeed, the transcript of the respondent's opening at trial (see in particular transcript p.140) lends weight to the fact that there were aspects of the demeanour of the applicant which could justify the conclusion reached by the Judicial Registrar that a satisfactory relationship between the applicant and his supervisors could not be reestablished if he were reinstated.  Upon finding this to be the fact, I consider the Judicial Registrar correctly concluded that as a matter of industrial commonsense, it would be impracticable to reinstate the applicant.  In my opinion it has not been shown that the conclusion of the Judicial Registrar was wrong.

The final matter concerns the amount of compensation ordered.  The respondent contends that it was too high as the Judicial Registrar failed to have due regard to the applicant's failure to mitigate his loss and to the applicant's conduct which led to the termination of the contract of employment; and on the other hand the applicant contends that the compensation was too low.

Both parties are agreed that the maximum compensation that can be awarded pursuant to s.170EE(2) and (3) is $12,740. In discounting the maximum to the amount awarded the Judicial Registrar said:

"In this matter the Applicant gave evidence that he had made some attempts to find alternative employment, however these attempts had not been successful.  He did not impress me as someone who had made serious attempts to mitigate his loss.  In fact he objected to being cross-examined in relation to this issue.  Mr Walker, whose evidence also formed part of these proceedings (as a result of an order made by consent of both parties) was dismissed at the same time.  He gave evidence that he had obtained casual work since the date that both he and the applicant were dismissed...I take into account the Applicant's length of service, his age, the difficulty he faces in obtaining alternative employment but in addition I take into account Mr Walker's evidence of having been able to obtain casual work and that he was similarly qualified to the Applicant."

The applicant was aged 48 years when his employment was terminated. Mr Walker was significantly younger. Counsel for the applicant contends that the age difference alone would be a sufficient reason for giving little weight to the success achieved by Mr Walker in his search for work. Moreover, the evidence of Mr Walker shows that he was out of work more often than he was in work. Counsel for the applicant argues that the prospect of the applicant obtaining another permanent job in the immediate future is grim, and that even if he could establish a pattern of casual part-time work similar to the work obtained by Mr Walker, by the time he was able to obtain another permanent position his losses would substantially exceed $12,740. In the applicant's submission the proper way to apply the maximum provided for in s.170EE(3) is to first make an assessment of compensation for loss of the job, independently of s.170EE(3). Then, if the amount so assessed exceeds the maximum, then that maximum figure should be allowed. Having regard to the compensation actually awarded by the Judicial Registrar counsel for the applicant contended that the Judicial Registrar must have erred in law by taking the maximum sum of $12,740 as the starting point, and then discounted that figure for each of the contingencies that she mentioned. As the Judicial Registrar has not indicated what weighting was given to each of the contingencies it is not possible to tell whether this error occurred, although I am left with the impression that the Judicial Registrar must have assessed the compensation in the way suggested by counsel. I am otherwise unable to explain the award.

In my opinion the submissions of counsel for the applicant are correct as to the operation of s.170EE(3). I respectfully agree with Moore J in Perrin v Des Taylor Pty Ltd (10 March 1995, as yet unreported) that the statutory limits found in s.170EE(3) and (4) do not provide a range where the statutory limit is to be seen as the maximum amount to be awarded only in the most grievous or serious contravention of a provision of Division 3. The provisions simply provide limits to the jurisdiction of the Court so as to preclude awards of compensation in excess of those amounts. In my opinion the proper approach to assessing compensation is to make the assessment independently of those limits then, if there is a need to do so, to apply the relevant limit to establish the point of cut off. See also Liddell v Lembke at 368 per Gray J.

But for the incident which led to the termination of the applicant's employment, and an earlier incident where he was reported for abusing an officer of the respondent, his attitude to his employment was generally acceptable, and no criticism was made of his skills. Had the dismissal not occurred on 14 October 1994 there is no reason to think that his engagement in a measure of mild industrial action that day would have put his future employment in jeopardy. Moreover he would have continued his employment subject to the protection now available to employees under Division 3 of Part VIA of the Act, although allowance must be made for the possibility that the employment might come to an end for some reason or another that results in a lawful dismissal that was not harsh, unjust or unreasonable: see the discussion of the relevant principles in Nicolson v Heaven & Earth Gallery Pty Ltd at 244-247.

Counsel for the respondent contends that not only should allowance be made in the assessment of compensation for potential earnings from other avenues of employment that have or may become open to the applicant, but also for unemployment benefits and other social service allowances received or available in the future to the applicant.  Apart from a passing reference in the cross-examination of the applicant to the fact that he had been on unemployment benefits and received about $134 less tax per week, particulars of the payments that he has received, and the statutory provisions pursuant to which those payments have been made are not identified in the evidence.  The Court has not been taken to the relevant provisions of the Social Security Act 1991 which govern the entitlement to benefits, and impose conditions under which those benefits are paid, nor has the Court been referred to any authorities that might bear on the question, such as Redding v Lee (1982) 151 CLR 117. It is undesirable that the Court express any view on this argument in the absence of argument upon the relevant statutory provisions and authorities. In the present case, it is sufficient to note that even if the applicant were required to give credit for payments of $134 per week, he would continue to have an ongoing loss of approximately $356 per week, and moreover, if the matter were to be approached on the basis that he could have made a more determined effort to mitigate his loss by working casual part-time work as did Mr Walker, during the periods of such employment he would lose that benefit. In the circumstances of this case, I consider that the compensation to which the applicant would be entitled on the footing that full credit were to be given for the unemployment benefits and/or casual part-time work of the kind found by Mr Walker, would, apart from s.170EE(3), exceed $12,740, and the proper award of compensation would be the statutory limit. In my opinion upon review the Court should increase the amount of compensation accordingly.

For these reasons I consider the finding of the Judicial Registrar that the termination of the applicant's employment on 14 October 1994 was harsh, unjust and unreasonable should be confirmed as should the finding that it is impracticable to reinstate the applicant.  The award of compensation should be increased to $12,740.

I certify that this and the
  preceding pages are a true
  copy of the Reasons for
  Judgment of Justice von Doussa

Associate:
  Dated:

Solicitor for the applicant     : Mr S Blewett

Counsel for the respondent : Mr R Manuel

Solicitor for the respondent    : R J Manuel & Co.

Date of hearing           : 16 May 1995