David Jackson Wylie v Carbide International Pty Ltd Anthony Kenneth Buttling v Carbide International Pty ltd
[1994] IRCA 10
•13 Jul 1994
CATCHWORDS
Unlawful termination - preliminary issue of whether adequate alternative remedy available from W.A. Industrial Relations Commission - power to order compensation dependent upon failure by employer to comply with order for reinstatement - whether alternative remedy must exist at time application filed or at time when Court deciding.
Industrial Relations Act 1988 (Cth), ss.170EB, 170EE
Industrial Relations Act 1979 (W.A.), s.23A
DAVID JACKSON WYLIE v. CARBIDE INTERNATIONAL PTY LTD
WI No. 124 of 1994
- AND -
ANTHONY KENNETH BUTTLING v. CARBIDE INTERNATIONAL PTY LTD
WI No. 125 of 1994
Keely J.
Melbourne (Case heard in Perth)
13 July 1994
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA ) WI No. 124 of 1994
)
WESTERN AUSTRALIA DISTRICT REGISTRY )
B E T W E E N :
DAVID JACKSON WYLIE
Applicant
A N D :
CARBIDE INTERNATIONAL PTY LTD
Respondent
CORAM: Keely J.
PLACE HEARD: Perth
(Judgment delivered in Melbourne)
DATE: 13 July 1994
MINUTE OF ORDER
THE COURT DECLARES THAT:
It is not satisfied that there is available to the applicant under the Industrial Relations Act 1979 (W.A.), as amended, an adequate alternative remedy, in respect of the termination of his employment, under existing machinery that satisfies the requirements of the Termination of Employment Convention.
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA ) WI No. 125 of 1994
)
WESTERN AUSTRALIA DISTRICT REGISTRY )
B E T W E E N :
ANTHONY KENNETH BUTTLING
Applicant
A N D :
CARBIDE INTERNATIONAL PTY LTD
Respondent
CORAM: Keely J.
PLACE HEARD: Perth
(Judgment delivered in Melbourne)
DATE: 13 July 1994
MINUTE OF ORDER
THE COURT DECLARES THAT:
It is not satisfied that there is available to the applicant under the Industrial Relations Act 1979 (W.A.), as amended, an adequate alternative remedy, in respect of the termination of his employment, under existing machinery that satisfies the requirements of the Termination of Employment Convention.
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA ) WI No. 124 of 1994
) and WI No. 125 of 1994
WESTERN AUSTRALIA DISTRICT REGISTRY )
B E T W E E N :
DAVID JACKSON WYLIE
Applicant
A N D :
CARBIDE INTERNATIONAL PTY LTD
Respondent
A N D B E T W E E N :
ANTHONY KENNETH BUTTLING
Applicant
A N D :CARBIDE INTERNATIONAL PTY LTD
Respondent
CORAM: Keely J.
PLACE HEARD: Perth
(Judgment delivered in Melbourne)
DATE: 13 July 1994
REASONS FOR JUDGMENT
In each of these two matters the applicant has claimed:
(a) an order declaring the termination of the employer's employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988 (Cth) (the Commonwealth Act);
(b)an order requiring the respondent to reinstate the employee in employment; and
(c)an order that the respondent pay compensation to the employee.
Such other order or orders as will put the employee in the same position (as nearly as can be done) as if the employment of the employee by the respondent had not been terminated: see section 170EE of the Act.
On 24 June 1994 Lee J. ordered in each matter that the "Preliminary issue on construction of s.170EB or jurisdiction of Court thereunder be determined separately" and that the hearings on that issue be concurrent. The appearances and the submissions were the same in the two matters.
Section 170EB of the Commonwealth Act provides as follows:
"The Court must decline to consider or determine an application under section 170EA if satisfied that there is available to the employee by or on whose behalf the application was made an adequate alternative remedy, in respect of the termination, under existing machinery that satisfies the requirements of the Termination of Employment Convention."
The Termination of Employment Convention (the Convention) is set out in Schedule 10 to the Commonwealth Act and includes the following provisions:
"PART II STANDARDS OF GENERAL APPLICATION
DIVISION A JUSTIFICATION FOR TERMINATION
Article 4
The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.
. . .
DIVISION C PROCEDURE OF APPEAL AGAINST TERMINATION
Article 8
1 A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.
. . .
Article 9
1 The bodies referred to in Article 8 of this Convention shall be empowered to examine the reasons given for the termination and the other circumstances relating to the case and to render a decision on whether the termination was justified.
2 In order for the worker not to have to bear alone the burden of proving that the termination was not justified, the methods of implementation referred to in Article 1 of this Convention shall provide for one or the other or both of the following possibilities:
(a)the burden of proving the existence of a valid reason for the termination as defined in Article 4 of this Convention shall rest on the employer;
. . .
Article 10
If the bodies referred to in Article 8 of this Convention find that termination is unjustified and if they are not empowered or do not find it practicable, in accordance with national law and practice, to declare the termination invalid and/or order or propose reinstatement of the worker, they shall be empowered to order payment of adequate compensation or such other relief as may be deemed appropriate."
Section 29 of the Industrial Relations Act 1979 (W.A.), as amended, (the WA Act) provides that a claim by an employee that he has been harshly, oppressively or unfairly dismissed from his employment may be referred to the Western Australian Industrial Relations Commission (the W.A. Commission).
Section 23A of the W.A. Act provides as follows:
"23A. (1) On a referral to the Commission of a claim of harsh, oppressive or unfair dismissal under section 29 (b)(i), 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; and
(c)make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this subsection.
(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 (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 average rate received during any relevant period of employment."
The respondent employer has submitted that:
". . . there is available to the employee an adequate alternative remedy in respect of the termination under the existing machinery that satisfies the requirement of the Termination of Employment Convention, namely the Western Australian Industrial Relations Act 1979, in sections 29(1)(b)(i) and 23A."
It is convenient to refer briefly to one matter which the respondent employer's submission:
". . . that the appropriate time for determining whether an adequate alternative remedy exists for the purposes of section 170EB is the time at which the application under section 170EA is brought, otherwise the provisions of section 170EB will be rendered nugatory."
As a matter of construction, I am inclined to the view that that submission is not correct and that the court is to decide whether an adequate alternative remedy exists at the date when the court is so deciding - not whether it existed at the date when the application was filed in the court. However, that question has not been fully argued and it is not necessary to decide it because of the conclusion that I have reached on the preliminary issue.
The powers of the W.A. Commission at the conclusion of the hearing are expressly limited by s.23A(1) to those set out in that sub-section. They include a power to order the employer to reinstate or re-employ a claimant, which order "may require that it be complied with within a specified time" and the making of certain ancillary or incidental orders. It was accepted by the respondent employer that, in s.23A(1)(a), the words "any amount to which the claimant is entitled" are not referring to compensation for the future.
The respondent employer also accepted that, at the conclusion of the hearing of a claim that a dismissal was harsh, oppressive or unfair, the W.A. Commission has no power to "make an order for the payment of compensation for loss or injury caused by the dismissal" and that its only power to order payment of compensation for loss or injury is the power conferred by s.23A(3) of the W.A. Act. The respondent employer has argued that the power under that sub-section is sufficient to make the remedy under the W.A. Act "an adequate alternative remedy". I am unable to uphold that submission. The claimant can only invoke the power conferred by that sub-section if four pre-conditions exist. They are (1) the W.A. Commission, after hearing the case, has made an order under sub-section 23A(1)(b) ["to reinstate or re-employ a claimant"] (2) the employer has failed to comply with that order (3) the claimant has made a "further application" to the W.A. Commission and (4) the W.A. Commission has decided to exercise its power to "revoke that order".
The solicitor for the respondent employer accepted that, before the 1993 amending Act inserted s.23A into the W.A. Act, "compensation was not an alternative to reinstatement". He said:
"So if [the Commission in a case heard before the amending Act] felt that for whatever reason reinstatement was not appropriate, . . . there would be no point at all in ordering reinstatement, thereby leaving the applicant without a remedy. The situation now is that there is a provision for compensation subsequent to a failure to comply with reinstatement. And so [the Commission] now, faced with that situation could order reinstatement and subsequently to that, in the event of a failure to comply with the order, order compensation. And my submission is that . . . [it] would be inclined to do that given the dicta in those cases about providing a just and equitable remedy for an employee."
When the court sought clarification of his submission, he replied "Yes" to a question asking whether he was submitting that:
". . . [even if the W.A. Commission,] on an objective analysis of the facts and circumstances, considered that reinstatement ought not to be ordered, [it] would nonetheless, contrary to that opinion, order it, believing that it will not be complied with [and would do so] just to give itself the power which the statute has not otherwise conferred on it, [namely] to deal with the question of compensation".
I reject that submission. In my opinion it is quite extraordinary to suggest that the W.A. Commission, if, on the material before it, it considered at the conclusion of the hearing that an order for reinstatement should not be made, would nonetheless make an order for reinstatement with the intention that if, as the Commission expected, the employer refused to comply with it and a further application was made by the employee, it would revoke that order and make an order for the payment of compensation for loss or injury caused by the dismissal (s.23A(3)).
The respondent employer submitted that:
" . . . the only real difference that comes in is this question of practicability of ordering reinstatement. That's perhaps the only difference, real difference, between the present provisions under state law and the proposed amendments under the Federal Act. And, as my friend has said . . . , the Federal Act gives the power to the court to award compensation first up instead of awarding reinstatement. And the difference with that is that the state court would require a 2-step process and in exceptional circumstances it may be the case that there will be no order at all."
In my opinion the fact that the W.A. Act requires "a 2-step process" and would involve the applicants in the expenditure of additional time - and of money if they engaged legal practitioners - itself supports the applicants' contention that there is no "adequate alternative remedy" within the meaning of s.170EB of the Commonwealth Act.
I accept the submission by the applicants' solicitor that, before the court declines to consider the application, it must be satisfied that (1) there is available to the employee an adequate alternative remedy i.e. adequate when compared with the remedy available under s.170EE of the Commonwealth Act as amended by Act No. 97 of 1994 (2) that alternative remedy is available under existing machinery and (3) that existing machinery satisfies the requirements of the Convention. Section 170EE (1) and (2), as amended by Act No. 97 of 1994, provides that:
"(1) In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may make the following orders:
(a)an order requiring the employer to reinstate the employee by:
(i)reappointing the employee to the position in which the employee was employed immediately before the termination;
or
(ii)appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination;
and
(b)if the Court makes an order under paragraph (a):
(i)any order that it thinks necessary to maintain the continuity of the employee's employment;
and
(ii)an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination.
(2) If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate."
In my opinion there is not "available to the employee . . . an adequate alternative remedy, in respect of the termination . . . ". The absence of any power in the W.A. Commission to order, at the conclusion of the hearing of a claim by an employee, the payment of compensation by the employer to the employee is sufficient in itself to show that the alternative remedy under the W.A. Act is not an adequate remedy.
It may be added that I accept the submission advanced by the applicants' solicitor as to the meaning of the word "adequate" in s.170EB of the Commonwealth Act. He relied upon the Oxford English Dictionary (second edition) which defines "adequate" as:
"1. Equal in magnitude or extent; commensurate; neither more nor less. Obs.
. . .
2. a.Commensurate in fitness; equal or amounting to what is required; fully sufficient, suitable, or fitting."
In my opinion on the material before the court there is no adequate alternative remedy and the preliminary question must be so determined.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Keely.
Associate:
Date: 13 July 1994
Solicitor for the applicants : Mr D. H. Schapper
Solicitor appearing for the applicants : Mr D. H. Schapper
Solicitor for the respondent : Corrs Chambers Westgarth
Solicitor appearing for the respondent : Mr I. F. Tait
Date of hearing : 30 June 1994
Date of judgment : 13 July 1994
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