Domenico Del Monaco and Wilson Transformer Company Pty Ltd

[1994] IRCA 97

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - possible dismissal to avoid contravention of S108 Accident Compensation Act 1985 (Victoria) - act of employer constituting termination - whether termination an act of employer prior to date of operation of statute.

PRACTICE AND PROCEDURE - Submission of no case to answer - whether party making submission should be put to election or not.

Industrial Relations Act 1988, S170DA, 170EA S170EE
Section 108 and Section 122 Accident Compensation Act 1983 (Victoria).

Protean (Holdings) Limited (Receivers and Managers appointed) and Others v American Home Assurance Company [1985] VR 187.
Stevenson v Barham 136 CLR 190 at 202 per Mason and Jacobs JJ
Siagian v Sanel, 122 ALR 333
APESMA and others v Skilled Engineering and others, 122 ALR 471
Automatic Fire Sprinklers Pty Limited and another v Watson, 72 CLR 435

DOMENICO DEL MONACO AND WILSON TRANSFORMER COMPANY PTY LTD

No. VI 300/94

Before:              Ryan JR

Place:                 Melbourne

Dates                 10 & 11 OCTOBER 1994

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 300/94

B E T W E E N:                 DOMENICO DEL MONACO

AND:    

WILSON TRANSFORMER COMPANY PTY LIMITED

COURT:              RYAN JR

PLACE:               MELBOURNE

DATE:                  11 OCTOBER 1994

JUDGMENTS EX TEMPORE

NOTE : There are really two judgments.  One on election, the other on jurisdiction.

ELECTION

The respondent, via counsel, submits that there is no case to answer.  It is not a submission that there is no case to answer because the opposing party has relied on defences which were unsustainable on the evidence presented.  That was the kind of no case submission which was the subject, at least in part, of Protean (Holdings) Limited (Receivers and Managers appointed) and Others v American Home Assurance Company [1985] VR 187.

I have read Protean in its entirety and I can say with feeling that it constituted four separate judgments, two densely and thoroughly and fully argued, being Marks J at first instance and Fullagher J, the leading judgment of a Full Court of three.  In terms of the issue in Protean possibly relevant to this court's practice and procedure and possibly relevant to what both counsel in this case have at times called a “no case submission”, it is easier to go to the two supporting Full Court judgments, namely the judgments of the Chief Justice and Tadgell J.  To the extent that it might be necessary to rely, or if not necessary to rely, helpful to refer, to Protean, I shall concentrate on the judgment of Tadgell J.

However, before going to Protean, I want to return to a distinction which I would make, and do make, between a no case submission as in Protean and what has been categorised in this case as “a no case submission”.  In Protean the trial judge and all three judges, separately on appeal, held that there was no case to answer because certain defences were unsustainable on the evidence presented in respect of those defences. 

This is a different kind of no case submission.  It is really, if allowed to be made at this stage, a submission on behalf of the respondent that this court has no jurisdiction.  Unlike Protean, it is not an argument that there is no case on a particular evidentiary basis, although of course this proposed submission of no jurisdiction must rely on an evidentiary base of its own.

I need hardly add that in the pursuit of this particular application for remedy for unlawful termination, this is the respondent's third challenge to jurisdiction.  The first (by notice of motion) was dismissed by Keely J on 4 July.  I rejected the second challenge as in effect premature on 28 September, having concluded that the only reasonable construction to put on the dismissal of the motion for dismissal, was that the jurisdiction argument was inexplicably bound up with disputes on facts which could only be resolved by the testing of evidence in the usual way at trial.

I also indicated on 28 September that this was a conclusion I had reached in any event separately from the dismissal of the motion by Keely J.  In ruling on 28 September that the trial should proceed and so ruling again again yesterday on 10 October at the commencement of the trial, I indicated that if during the trial the court concluded that an act of the employer constituting termination took place before 30 March 1994, that was likely to be fatal to the application.  In such circumstances it is always open to the respondent to renew the submission of no jurisdiction especially after counsel for the applicant has closed his case.

If I understand the position now put by Mr Desmond for the applicant, it is that if Mr Flower for the respondent makes a submission of no case, albeit no case because there is claimed to be no jurisdiction, Mr Flower should be put to his election and only allowed to make his submission if, before making it, he elects to call no further evidence (having at this stage called but one witness).

I am by no means convinced that a submission of no jurisdiction brings into play the principles on election outlined in Protean.  I have already indicated how I distinguish the circumstances in this case from those in Protean.  However, if I am wrong in making that distinction or in holding that the distinction removes this case from the election principles outlined in Protean, I would find in applying the principles that the submission of no jurisdiction can be entertained at this stage without requiring an election to be made.

As indicated earlier, I would support that position by referring to Tadgell J at 237 where he agreed that the appeal should be dismissed for the reasons advanced by Fullagher J.  His Honour addressed his remarks only to the submission of the appellant in that court that the learned trial judge misconceived his function in dealing with the submission of no case.  In finding that the trial judge had in no way misconceived his function, he stated at 237 (lines 23 to 50) as follows:

When in the course of a trial by a judge sitting alone, a party indicates that he desires to submit that he has no case to answer upon a contested issue, he is really inviting the judge to rule that he should not have to adduce evidence or further evidence on that issue in order to have it finally decided in his favour. 

Usually, but not inevitably, the invitation will be issued at the end of the evidence called against the party desiring to make the submission (whom I shall call the moving party) and before that party calls any evidence on the relevant issue in answer to that of the other party (whom I shall call the respondent party).  It might be issued after the moving party has called some but not all of his evidence. 

The judge is entitled for reasons that seem appropriate to him to decline out and out to entertain such a submission at the stage at which he is asked to do so.  Normally however, the judge would not feel justified in refusing outright to hear a submission of no case if to hear it would carry the prospect of justly facilitating the disposition of the litigation.  Usually there will be three courses open to him short of refusing all together to entertain the submission;  namely

(1)he might decline to entertain the submission at that stage unless the moving party were to elect before making it not to call any evidence either generally or on the issue on which the ruling was sought or

(2)he might allow the submission to be made without putting the moving party to any election at that stage but leaving until he had heard it, the question whether or not he would rule on it without requiring an election to be made and having heard the submission and any answer to it by the respondent party he could either rule on it or not, perhaps requiring and election to be made as a pre-requisite to his doing so or

(3)he might indicate that he would both entertain the submission and rule on it without requiring an election to be made by the moving party.

The trial judge adopted the third of these possible courses and in this case I do too although I doubt that it is necessary for me to follow or apply Protean to do so.

Mr Flower also drew my attention to the case of Stevenson v Barham 136 CLR 190 at 202 per Mason and Jacobs JJ and I quote:

We have been told that the Commission follows the practice of permitting questions of jurisdiction to be argued without requiring a party to elect not to call evidence.  There is much to commend this approach.

As a general rule it is desirable that an objection to jurisdiction be determined as early as circumstances will conveniently admit so that the tribunal does not embark on a hearing which it lacks authority to conduct. 

We would not apply to objections to jurisdiction the general rule that a defendant should be called upon to elect whether or not to call evidence before being permitted to submit that there is no case to answer.

FINDING

Mr Flower, you may make your submission.  I do not require you to make an election.  I will, of course, hear Mr Desmond in reply to your submission.  My primary motivation in allowing what is the third submission of no jurisdiction is, to use Tadgell Js words:

The prospect of justly facilitating the disposition of the litigation.

However, before you make your submission, can I just say that it does not follow that the litigation will be expedited by such a submission.  There are three possible results: 

1.I might find no jurisdiction;  and that presumably means both facilitation and expedition. 

2.I might find jurisdiction;  and that will hardly lead to expedition, although perhaps facilitation, if facilitation includes clarification. 

3.I might decline to rule on jurisdiction and leave you to decide whether to call further evidence or I might express reluctance to rule without further evidence from you and leave you to determine whether or not you propose to call further evidence before you close. 

But having said that, the submission is open.

(Note:  At this stage the submission on jurisdiction was made).

JURISDICTION

The respondent has founded a submission that the court has no jurisdiction on what counsel describes as notional acceptance of evidence led on behalf of the applicant. The submission on jurisdiction is predicated on two aspects categorised by the respondent as favourable to the applicant. First, it is said that for the purposes of the submission the events of 25 February 1994, which included a notice of termination delivered to the applicant's wife, exhibit R1, did not constitute a termination under Division 3, Part VIA, of the Industrial Relations Act 1988. Second, it is said that for the purposes of the submission, but only for those purposes, it can be accepted that a significant factor in dismissing the employee was to avoid or attempt to avoid any offence under section 108 of the Accident Compensation Act 1985, Victorian Act 10191 of 1985.

The respondent relies on section 170CB of the Industrial Relations Act 1988 which provides that an expression has the same meaning in Division 3, Part VIA as in the termination of employment convention. The convention appears as schedule 10 to the Act. Article 3 provides that for the purpose of the convention the terms “termination” and “termination of employment” mean termination of employment at the initiative of the employer.

Section 170DA provides for proclamation of the Act and it was proclaimed effective from 30 March 1994.

Section 170EE(1) provides for remedies in respect of termination of a provision of Division 3, Part VIA, constituted by termination of employment of an employee by an employer.

There is no power to make an order if there is no contravention of Division 3.  There can be no contravention before the division is in operation and no jurisdiction for this court before 30 March 1994.   Siagian v Sanel, 122 ALR 333 and APESMA and others v Skilled Engineering and others, 122 ALR 471, are both authorities for that undoubted position. The respondent submits that termination within the terms of Division 3 had occurred by 11 March 1994 when exhibit A1, (a statement entitled “911-Domenico Del Monaco, 25.2.94”) was delivered to the applicant and conceded by the applicant to have been so delivered.

Exhibit A1 refers to amounts identified as accrued RDO, tax, termination pay as at 25.2.94, leave, leave loading, pro rata annual leave, long service leave, pro rata long service leave, five weeks in lieu of notice with amounts identified for ordinary time, tax and net payment.  The exhibit concludes with a reference to a total cheque of $7150.60.  The applicant concedes that such an amount was paid directly into a joint bank account in the name of himself and his wife on or about 10 March 1994.  The respondent submits that the payment was a termination payment and delivery of exhibit A1 on 11 March 1994 was an act of termination.

The respondent submits that irrespective of whether those acts were inappropriate, unusual or inadequate and irrespective of whether an offence might have been committed under section 108 of the Victorian Accident Compensation Act and irrespective of whether the termination of employment was defective or ineffective because of section 120 of the Accident Compensation Act or for any other reason, nevertheless the acts of the employer in the payment of $7150.60 on or about 10 March and the delivery of the statement on 11 March, were an act of “termination” in the sense of that word in sections 170EA and section 170EE. Of course, the respondent also argues that while those acts constituted a termination they can never constitute a contravention of Division 3 because the acts took place before Division 3 came into effect.

For this proposition the employer relies on APESMA at 482 and 483 (and I would say, as summarised by Gray J, at 484).  At 482 Gray J held:

Both requirements that expressions in Division 3 of Part VIA be given the same meanings as in the convention and the form of the provisions of Division 3 therefore suggest that termination refers to what is done by an employer attempting to bring about the end of the employment. The legislative intention is to permit applications under section 170EA of the Industrial Relations Act if an employer has done some act terminating or purporting to terminate the employment irrespective of whether the act is effective to bring about the termination without some further act on the part of the employee.

The termination referred to in section 170EA and in section 170EE is the act of the employer.  If the act of the employer is effective to terminate the contract of employment, remedies appropriate to that situation can be granted.  If the contract remains on foot the court still has the power, under section 170EE(1), to make such orders as it thinks appropriate in order to put the employee in the same position as nearly as can be done as if the employment had not been terminated.

Such a remedy might involve declaring that the act of the employer was ineffective to determine the contract and the making of consequential orders requiring the employer to treat the contract as still on foot.  In many cases for practical purposes it will be unnecessary to decide whether the contract remains on foot or not.  The remedy of reinstatement with compensation for any loss during the period prior to judgment will usually be appropriate in either case.

At 484 his Honour stated:

For present purposes the consequence of the construction which I have adopted is that any act of the employer bringing to an end or purporting to bring to an end a contract of employment which occurred prior to 30 March 1994 is not a termination for the purposes of section 170EA of the Industrial Relations Act. No application under that section can therefore be made in respect of such an act.

The respondent submits that there was no act of the employer after 11 March which can be construed as an act of termination.  The respondent categorised the payments of superannuation after 11 March, exhibit R1, as tidying up payments accrued prior to 25 February 1994 and likewise other payments as tidying up in respect of RDO hours, union fees and health insurance accrued prior to 25 February 1994.

The respondent raised the case of Automatic Fire Sprinklers Pty Limited and another v Watson, 72 CLR 435, in anticipation of an argument that employment continued until about 11 April 1994 and then sought to distinguish the circumstances of protected employment under manpower regulations in the 1940s from any prohibition on termination of employment which might be thought to operate under section 108 of the Victorian Accident Compensation Act 1985 or for that matter under any other provision of that Act such as section 122 which was cited by Mr Desmond for the applicant.

I believe that Watson's case can certainly be distinguished from the circumstances here but I do not find the case of any particular assistance.

Mr Desmond seeks to resist the submission of no jurisdiction by arguing that the payment of 10 March and the statement exhibit A1 do not constitute an act of termination, or in APESMA terms, “an act of the employer purporting to terminate employment” or (again in APESMA terms) “what is done by an employer attempting to bring about the end of the employment”. Mr Desmond referred the Court to section 122 of the Accident Compensation Act 1985 which reads:

1. If within the period referred to in subsection (3) after a worker commences to be entitled to receive weekly payments in respect of an injury arising out of or in the course of employment with an employer,

(a) the worker no longer has an incapacity for work, the employer must provide employment for the worker in a position which is the same as or equivalent to the position which he or she held before the injury, or

(b) the worker has a partial incapacity for work, the employer must provide suitable employment for the worker.

1. Subsection (1) does not apply if the employer can demonstrate to the authority's satisfaction that it is not possible for the employer to provide suitable employment in accordance with that subsection.

1. For the purposes of this section the period for the purposes of subsection (1) after a worker commences to be entitled to receive weekly payments is the period of 12 months or the sum of periods not exceeding in the aggregate of 12 months first occurring after the injury during which the worker has an incapacity for work.

Mr Desmond described section 122 as a cast-iron obligation to provide employment during a 12 month period of entitlement as provided in subsection (3) or until the rejection of that claim. In this case liability was denied on 11 April 1994. That, says Mr Desmond, is the date of termination. That, he says, is the result of section 122 and that also, he submits, is the effect of the tidying up payments which coincide pretty much in terms of time with the rejection of the WorkCover liability on 11 April 1994.

Whatever may be the effect of sections 108 and 122 of the Accident Compensation Act 1985 in terms of Victorian law, I do not believe that those provisions or any tidying up payments to the employee or on behalf of the employee by the employer after 30 March 1994 result in an act of termination within federal jurisdiction. Not without regret I conclude that the employer, Wilson Transformers, brought the employment of Domenico Del Monaco to an end on or about 11 March 1994 within the meaning of termination under section 170CB (and Division 3, Part VIA generally) and that Siagian and APESMA are clear authorities that this court does not have jurisdiction.

It matters not that the termination of a man described by employer representatives as loyal and long serving may have been harsh, unjust and unreasonable.  I make no such finding, nor can I make any finding.  I simply say that in terms of jurisdiction, and the lack of it, it matters not that the termination might have been in objective terms harsh, unjust or unreasonable.  It matters not that Domenico Del Monaco seems to have served the company for 24 years.  If the applicant has any remedy and if there is any cause for remedy, the solution, if there is one, lies elsewhere.  I must dismiss the application under section 170EA for lack of jurisdiction and this I now do.  I simply say now to counsel, to their instructing solicitors and to their clients, if even now at this late stage reconciliation can occur it seems to me to be something to be devoutly wished and encouraged.

COSTS

The discretion to order costs is provided only by way of section 347.  There were some disputes on the facts.  Certainly I think it is fair to say there cannot be any dispute on the law in terms of an act of the employer taking place prior to 30 March 1994.  In terms of being satisfied that the applicant in this case, Domenico Del Monaco, instituted the proceedings vexatiously or without reasonable cause, I am not so satisfied.  I do not propose to order costs.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :              
Date    :              12 October 1994

Appearances:
Counsel for the Applicant                 :              J. Desmond
Solicitor for the Applicant                 :              Galbally and O’Bryan
Counsel for the Respondent             :              Andrew Flower
Solicitor for the Respondent             :              Mallesons Stephen Jaques
Date of Hearing  :              10 and 11 October 1994

Judgment  :              11 October 1994