Downey v Trans Waste Pty Ltd - [1990] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Melbourne No MlO of 1990
B e t w e e n -
PATRICK CORNELIUS DOWNEY

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and
TRANS WASTE PTY LTD

R.e s :)L:-'..~c~-=

Application for special
leave to appeal
DEANE J
GAUDRON J
McHUGH J

Downey
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 8 JUNE 1990, AT 10.34 AM
Copyright in the High Court of Australia

MlTS/1/PLC 1 8/6/90
MR M. E. J. BLACK, QC: May it please the Court, I appear with ::-iy
learned friend, MR L. KAUFMAN, for tne applicant
in this matter. (instructed by Phillips Fox)

MR K. HAYNE, QC: If the Court pleases, I appear with my learned
friend, DR I. HARDINGHAM,on behalf of the respondent.
( instructed by Arthur Robinson & Hedderwicks)

MR BLACK: May it please the Court, this case raises not one
but two issues of fundamental importance to industrial
relations in Victoria, particularly as those relations
affect individuals at the worst time of their lives,
that is to say, when they have been sacked in
circumstances that they consider to be hash,
unreasonable or unjust.
Now, in Victoria, under the INDUSTRIAL RELATIO:~S

ACT, two things are undoubted and the first is that
if a person who claims that he or she has been
unfairly dismissed is a member of a trade for which
a conciliation and arbitration board has been established -
and "trade" is very widely defined for those ourooses -
and if there is some outward manifestation, some-
industrial agitation, surrounding that dismissal, for
example, union agitation or certainly a stoppage,
then that person has an entitlement to go before the
commission and seek reinstatement and possibly
compensation as well. There are hundreds of such
cases a year in Victoria.
The result of the Full Court's decision in this

case is that there is no redress outside the corrmon la,,,-
for large numbers of employees for whom there happens
to be no conciliation and arbitration board appointed -
and these are not just managerial employees - and for
people who have not been able to provoke some industrial
unrest or threatened industrial unrest consequent upon
their dismissal or threatened dismissal.
Now, if one accepts, as we submit it should be

accepted, that claims for reinstatement consequent upon

unfair dismissal are an accepted part of the industrial relations process - not only in Victoria but now more
widely - and if one accepts that the aim of any
INDUSTRIAL RELATIONS ACT including the Victorian one
is to avoid and settle industrial disputes rather than
to promote them, then a result that excludes substantial
classes of persons from relief on grounds that have
nothing to do with the harshness, unreasonableness

and so forth of their dismissal, is surprising. Now,
we say that - first, of course, the matter is one of
great practical importance but we say, as a matter of
statutory construction, that surprising result is, in
fact, a wrong result. The Act does not compel such

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1990] HCATrans 135
Decision Date

CaseChat Overview and Summary

The case of Downey v Trans Waste Pty Ltd concerned an application for special leave to appeal to the High Court of Australia. The applicant, Mr. Downey, sought to challenge a decision of the Full Court of the Supreme Court of Victoria concerning his dismissal from employment. The dispute centred on whether Mr. Downey, as a managerial employee, was entitled to seek reinstatement and compensation for an allegedly unfair dismissal under Victorian industrial relations legislation, particularly when his dismissal did not result in any industrial agitation or dispute.

The primary legal issues before the High Court were whether the Industrial Relations Act in Victoria excluded managerial employees from seeking relief for unfair dismissal, and whether the absence of industrial unrest or threatened unrest consequent upon a dismissal precluded an employee from accessing such relief. The applicant argued that the Full Court's interpretation of the Act led to a surprising and unjust outcome, excluding substantial classes of employees from redress for harsh, unreasonable, or unjust dismissals on grounds unrelated to the merits of their claims.

The applicant's counsel contended that the Act did not warrant the exclusion of managerial employees, as the relevant conciliation and arbitration boards could and did include such individuals. Furthermore, it was argued that the absence of industrial agitation was not a bar to relief, citing evidence from a solicitor experienced in industrial relations that applications for reinstatement frequently occurred without any actual or threatened industrial action. The applicant submitted that the primary judge, Mr Justice Cummins, had correctly interpreted the Act to allow for such claims, contrary to the Full Court's decision.

Orders