H & H Security Pty Ltd v Toliopoulos

[1997] IRCA 306

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - review of a judicial registrar’s decision - whether respondent was an “employee” for the purposes of the Act or an independent contractor - VALID REASON - redundancy - misconduct - whether employer had a valid reason for termination even though misconduct discovered after termination - whether relief “appropriate” - exercise of court’s discretion to grant relief - principles of assessing compensation - any entitlement to compensation de minimis

Workplace Relations Act 1996 (Cth), s 170DB, s 170DC, s 170DE, s 170EE

Boston Deep Sea Fishing & Ice Co v Ansell (1888) 39 Ch. D. 339
Briginshaw v Briginshaw (1938) 60 CLR 336
Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144
Byrne v Australian Airlines Ltd (1995) 61 IR 32
Finch v Sayers (1976) 2 NSWLR 540
Gregory v Philip Morris (1988) 80 ALR 455
Kenefick v Australian Submarine Corporation (No. 2) (1996) 65 IR 366
Kenefick v Australian Submarine Corporation (No. 3) (IRCA, Full Court, 8 July 1997)
Lane v Arrowcrest Group Pty Ltd (1990) 43 IR 210
Liddell v Lembke (1994) 56 IR 447
Nikoloska v Sterling Ethnic Aged Community Hospital (1996) 68 IR 165
Victoria v The Commonwealth (1996) 66 IR 392, (1996) 138 ALR 129
Ward v Williams (1955) 92 CLR 496
Westen v Union des Assurances de Paris (IRCA, Madgwick J, 17 December 1996)

H & H SECURITY PTY LTD v JAMES TOLIOPOULOS

NI 665R of 1994

Madgwick J
Sydney
25 July 1997

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

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)   NI 0665R of 1994

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NEW SOUTH WALES DISTRICT REGISTRY

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)

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BETWEEN:	H & H SECURITY PTY LTD Applicant
AND:	JAMES TOLIOPOULOS Respondent

JUDGE(S):	MADGWICK
PLACE:	SYDNEY
DATED:	25 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The orders made by the judicial registrar are quashed.

2. The original application is otherwise dismissed.

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

)
)

)  NI 0665R of 1994

)

NEW SOUTH WALES DISTRICT REGISTRY

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)

)

BETWEEN:	H & H SECURITY PTY LTD Applicant
AND:	JAMES TOLIOPOULOS Respondent

JUDGE(S):	MADGWICK
PLACE:	SYDNEY
DATED:	25 JULY 1997

REASONS FOR JUDGMENT

HIS HONOUR: This is an application for review of a judicial registrar's decision to award $15,000 by way of compensation to an alleged employee for allegedly unlawful termination of his employment. The decision was based upon s 170DE(2) of what was then known as the Industrial Relations Act 1988 (Cth) (now called the Workplace Relations Act 1996 (Cth)) which was of course subsequently held to be invalid in Victoria v The Commonwealth (1996) 66 IR 392, (1996) 138 ALR 129.

Introduction

Mr Hornyak, the de facto controller of the applicant company, had founded the company some years before the events in question.  He had been a director of the company and was quite open about his continuing controlling role in relation to it, notwithstanding that, in 1992, Mr Hornyak had been convicted by a Local Court of receiving property stolen from another company whose premises his company was to guard.  He appealed against the conviction but it was confirmed on or about 17 September 1993.  By early September 1993, the company had some contracts to provide security services in connection with the Sydney suburban rail network operated by a statutory corporation known as CityRail.  Mr Hornyak had tendered for much more work and it is clear that he believed he would have a good chance of securing it.  One infers that CityRail could hardly look with favour upon a tenderer whose true controller was a recently convicted receiver.  One also infers that, in a competitive sphere, other would-be providers of security services would not be slow to bring Mr Hornyak's misdeeds, if they should know of them, to the attention of a public body.  Mr Hornyak was therefore keen to disguise his connection with the company.

The company's probable forthcoming success with CityRail would also create the need for a considerable enlargement of a mostly casual labour force, with the associated necessity for increased supervision of the expanded force of security guards and close liaison with relevant CityRail officers.  As de facto manager of the company, what Mr Hornyak needed was a person to carry out the tasks of what is often called an operations manager.

Mr Toliopoulos had some years’ experience in the security industry and had been recommended to Mr Hornyak.  On 13 September 1993, after some preliminary telephone discussions, a meeting between Mr Toliopoulos and Mr Hornyak occurred, and on 20 September Mr Toliopoulos began work with the company.

On the same day, the company began providing CityRail with security services for its Chullora operations - a fairly large commitment.  On 1 September 1993 work on the north-west suburb lines had commenced.  On 21 December 1993 work on the northern suburban line began.

The north-west line work ceased on 31 January 1994.  During 1994 CityRail decided to close its Chullora operations.  This was well-known to the parties.  On 26 May 1994 there was an auction of the Chullora equipment and materials.  On 5 June 1994 the northern line work came to an end.

On 12 June 1994, Mr Toliopoulos broke a leg, in a comparatively serious way, in an accident unrelated to his work.  Soon after, he told Mr Hornyak that he would be off work for 2-3 months.  Later in June 1994, Mr Toliopoulos indicated he would need to be off work for much longer.  Mr Toliopoulos raised the question of remuneration on account of his sickness.  Mr Hornyak replied that Mr Toliopoulos would have to see the Department of Social Security.

On 30 July 1994 Mr Toliopoulos was given written notice which expired on 15 August 1994 that his services were no longer required.  On 15 August 1994 all CityRail work of the company at Chullora ceased.

Credit problems

The resolution of the case, which in any event has its difficulties, has not been made the easier by the fact that both the alleged employee, Mr Toliopoulos, and Mr Hornyak, the self-described "principal" of the applicant company, are people whom I would believe in this matter only when they are speaking against what they conceive to be their interests, or when there is quite independent corroborative evidence to support what each might be saying.  Some of the reasons for my dim view of the credit of each of them will appear in passing, but the evidence is replete with such reasons.  Neither was the demeanour of either of them impressive.

Employee or an independent contractor?

The first question is the nature of the relationship between Mr Toliopoulos and the company.

The Hornyak version is that he was intending to engage Mr Toliopoulos as an employee and was intending - I infer, on account of Mr Hornyak's receiving conviction - to call him the General Manager.  He was actually to be no such thing.  After a preliminary discussion of the level of remuneration, Mr Toliopoulos indicated that, after tax deductions, he would be unable to live on the $40,000 per annum which Mr Hornyak was offering, at least as a starting salary (there was a dispute about whether Mr Hornyak offered incremental increases), and he asked that Mr Hornyak therefore pay him as if he were engaged not as an employee but as an independent consultant.  Mr Hornyak agreed.  Mr Toliopoulos presented invoices against which he was paid.

The Toliopoulos version is that, after he had started, the company was late in paying him, and Mr Hornyak then indicated that he was going to pay Mr Toliopoulos as a consultant, explaining that there were good reasons for this and that Mr Toliopoulos should trust him about it.  Mr Toliopoulos says he agreed and that Ms Grech, Mr Hornyak's wife, prepared invoices on the company's computer, with which invoices the pretence that he was an independent consultant was carried out.  Invoices were in fact presented.

The assertions of both parties to the contract, except where they were against perceived interest must be put aside.  Mr Hornyak and the company had possible savings, in relation to workers compensation premiums and other employee on-costs, to gain by calling Mr Toliopoulos something other than an employee.  For his part, Mr Toliopoulos could defer the payment of income tax and might have an opportunity for income-splitting, if he were paid as though conducting a business.  However, the material is not all one way.  For example, when Mr Toliopoulos broke his leg, he did not press for payment of sick pay as one might have expected if he had believed that he was an employee.  Moreover, for an assertive character he offered remarkably little demur when, as he alleges, Mr Hornyak invented the fiction that he should be treated as if a consultant, after he had begun work.

Nevertheless, I think the balance of the more objective factors favours the view that, whoever was the inventor of the scheme, both saw some advantages in it but that it was a sham.  Mr Toliopoulos was to be integrally a part of the business.  He was to work full-time for the company for an indefinite period.  He was to serve the company in a role in which it would be very unusual for somebody to be engaged other than as an employee.  He was to be held out as performing a more exalted role than he actually did and in which it would be even more unusual that the person concerned would not be engaged as an employee.  Mr Hornyak's admission that he had originally intended that Mr Toliopoulos should be engaged as an employee cannot be put aside. 

It is true that Mr Toliopoulos told lies to the licensing authorities in order to obtain and/or maintain various security and related licences that he held.  Among these lies was that he was conducting a business known as James Toliopoulos & Associates, a business name he had registered in early 1993.  He had a cavalier attitude to his obligation to tell the licensing authorities the truth.  In some of these misrepresentations, however, it is likely that he was actively supported by Mr Hornyak.  While Mr Toliopoulos had lied, he seems never, after the registration of the business name, to have actually traded as a business operator or partner, despite occasional indicators which (absent the explanation he gave that he was lying to protect his licence-holding) might be thought to show the contrary.

A valid reason for termination?

The company chose to fight this issue, it might be thought, somewhat artificially.  Mr Hornyak swore that he had little concern, before he gave notice to Mr Toliopoulos, over indications of gross disloyalty and undermining of Mr Hornyak’s authority by Mr Toliopoulos as the de facto general manager of the company.  I have little doubt that, when he gave that evidence, Mr Hornyak was not telling the truth and that his motive lay in a belief that it would suit the company's case better if he averred that its stated reason for terminating Mr Toliopoulos's services was the only matter of concern.  Mr Hornyak is not, of course, the company, but the company was, on account of his evidence, constrained to put to the Court that, in effect, its actual subjective reason for Mr Toliopoulos's termination was that his position became redundant once it was clear that the CityRail work would decline.

By May 1994, it had become reasonably clear that there would be markedly less railway work.  In my view the company, by Mr Hornyak on its behalf, may well have then had legitimate concerns about its continuing staffing levels, including at Mr Toliopoulos's supervisory level.  As indicated above, Mr Toliopoulos had suffered a severe injury, not employment-related, in early June 1994 and it was then thought that he would be unfit for work for a couple of months.  According to the fiction that he was an independent contractor, the company, if not also Mr Toliopoulos, evidently acted on the basis that he had no entitlement to paid sick leave.  That lack of entitlement was a factor that might have largely taken any urgency from a decision as to Mr Toliopoulos's future.

However, what robs the employer's stated actual reason for termination of any validity it might otherwise have possessed was that the reason was arrived at without any discussion of the company's future circumstances with Mr Toliopoulos.  It is evident that he had been sufficiently useful to the company in a moderately senior role for his continued employment not to be under threat on account of any lack of ability on his part.  Mr Toliopoulos had performed some non-railway, as well as railway, work for the company and had reasonably broad, previous experience in the security industry.  He is likely to have been able to offer constructive suggestions of alternatives to his dismissal, whether such suggestions might ultimately have found favour or not.

What I said in Westen v Union des Assurances de Paris (Industrial Relations Court of Australia, 17 December 1996) is relevant:

"The interpretation to be accorded the phrase ‘valid reason’ appears most problematic in relation to the extent to which a bona fide reason for an employee's termination, which reason is not capricious, should be judicially examined as to its merits.  No doubt the Court's approach would proceed on a case-by-case basis, and any effort to re-state the phrase in more concrete form will not soon be essayed.

However, the first task is to focus on the relevant enquiry.  This is not whether some change in the functioning of the undertaking, which change accompanies or immediately precedes or follows the employee's termination, is made for a valid reason based on the operational requirements of the undertaking.  The enquiry is whether there is a valid reason for the actual termination in question.  This was brought out by the Full Court's judgment in Kenefick v Australian Submarine Corporation Pty Ltd (1996) 65 IR 366.

Thus, in this case, the intended reorganisation which would abolish Mr Westen's former post was bona fide and rationally undertaken with a view to having the respondent trade more profitably.  The Court is ill-equipped to enquire further into the actual merits of that decision.  There is in any case no evidence which would enable that to be done.  There is no reason, therefore, to think that there was not a valid reason, in the sense of its being sound, just or well-founded, for the reorganisation.

But there is no acceptable evidence that, consistently with such a reorganisation, there was no reasonably practicable alternative to the termination of Mr Westen's employment or that there was no reasonably practicable and acceptable alternative employment that might have been offered to or arranged  with him.  In particular, he was  not told why there was no such alternative;  nor was he invited to propose one.  In my view, it will often be difficult for an employer to show that there was no such alternative unless the employee has been offered such an explanation and/or opportunity.  It was not a necessary consequence of the staff reorganisation that there would be a termination of any employee's employment which would be unacceptable to the employee:  often enough an employee in such circumstances can be acceptably accommodated by the employer in another job, whether ‘equivalent’ to the last one or not.

Nor was there any offer to Mr Westen of a redundancy payout or package.  That the question of the material consequences of a termination of an employee's employment may be intimately connected with the validity of the reason for termination is, in my view, readily demonstrable.  . . .

In many cases, what, if anything, has been provided to the employee will . . . be a relevant, and in some cases a highly relevant, consideration in determining the validity of the reasons for termination."

The company’s efforts to show that Mr Toliopoulos’s alleged redundancy was a valid reason for his termination must fail.

Misconduct

However, at trial the company sought to find solace, additionally or alternatively, in the alleged misconduct of Mr Toliopoulos between the time when he was given notice on 30 July and the expiration of that notice on 15 August and/or at earlier times.

Much of what was complained of needs to be considered in the light of three important qualifying circumstances:

(a)Mr Toliopoulos had genuinely felt grievances of an industrial relations character against Mr Hornyak, both on his own account and on account of other employees;

(b)Mr Toliopoulos was, rather transparently, a considerable self-aggrandiser in the work setting;

(c)Mr Hornyak was not, according to the undenied evidence of a witness called by the company, above fraudulent enlargement of his claims as to the quantum of services provided to CityRail. 

It would be wrong, to borrow a phrase from another legal context, to weigh Mr Toliopoulos’s conduct on “golden scales”, or anything like them.

The matters complained of are these:

(a)On or about 18 October 1993, Mr Toliopoulos allegedly forged a letter on the company’s letterhead to assist him to obtain a housing loan.  Making all due allowances against the company’s witnesses for conscious or unconscious bias and closeness to Mr Hornyak, and applying the Briginshaw v Briginshaw (1938) 60 CLR 336 refinement of the civil standard of proof because of the legal seriousness of the allegation, it seems likely to me that Mr Toliopoulos did forge the document. However, serious though this was, if that were all he had done, I am not persuaded that even Mr Hornyak would have had sufficient hypocrisy to dismiss him on account of it. In the context of this particular employment situation, it would not have warranted Mr Toliopoulos’s dismissal.

(b)Mr Toliopoulos was guilty of a series of acts of disloyalty to the company and to Mr Hornyak, its de facto controller and, almost, alter ego;  these occurred from about Easter 1994 through to about mid-June.  Much of the evidence for this depends on the word of Ms Edwards, an unsophisticated, employed dog-handler whom Mr Hornyak had re-invented as a director of the company.  Ms Edwards’ loyalty to Mr Hornyak was great and her distaste for Mr Toliopoulos’s bragging considerable.  It would be a mistake not to keep the proverbial grain of salt near the tip of the tongue when assessing her evidence.  On the other hand, she seemed to have no great power of imagination and some of what she says finds a ready echo in other material which, without much doubt, later emanated from Mr Toliopoulos.  The matters of significance which I think are established are these:

(i)Mr Toliopoulos asserted that Mr Hornyak was “ripping off thousands of dollars every month from the company and putting it into his private St. George account”; and

(ii)that various amounts received for particular named jobs were “black money, going straight into [Mr Hornyak’s] private bank account”.

The difficulty for the company is that Ms Edwards would, as she said she did, undoubtedly have carried these matters straight back to Mr Hornyak, but his evidence was that they were not acted on as a reason to terminate Mr Toliopoulos’s services. Any such misconduct was therefore consciously tolerated, and condoned. Certainly Mr Toliopoulos was not given an opportunity to defend himself in respect of such alleged misconduct: c.f. s 170DC. Further, neither the company nor Mr Hornyak ought lightly be permitted to profit by now being able to assert such alleged misconduct as another allegedly valid reason for termination in the litigation, when Mr Hornyak, the company’s real decision-maker, chose to be much less than frank with the Court in suggesting that he really was not concerned about such misconduct. Mr Hornyak’s lack of frankness, I may say, has troubled me in general about the case, but ultimately, as will be seen, I have come to a conclusion that such turpitude on Mr Hornyak’s part cannot determine the matter.

(c)      Mr Toliopoulos went so far as:

(i)by inference, to cause a letter (Ex. 8R - copy annexed hereto) to be given to a union official by a friend and fellow employee, Mr Johnson, on or about 1 July 1994; and

(ii)to write to Mr Hornyak, after receipt of the notice terminating his services, in very similar terms, seeking to blackmail him into paying large sums of money said to be owing to Mr Toliopoulos as work entitlements (Ex. 1R, Annexure L - copy annexed hereto).

The inference, so plainly arising, that these two letters had one author who saw to the distribution of both of them, should be drawn.  Further, Mr Toliopoulos failed to call his friend, Mr Johnson, who could have given the lie to the inference that Mr Toliopoulos had entrusted him with the letter for the union official.

These matters may be judged as liberally as one may and full rein may be given to the need for  managers, like their employees, to wear no thin skin.  The court should beware of sanctimony.  Nevertheless, even enterprise managers of the stripe of Mr Hornyak do not have to put up with this kind of uncontrolled insult and abuse, any more than any employee would have to tolerate such mistreatment (as to which, see now Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144; see also at first instance Madgwick J, 15 December 1995). Employees too owe a duty of fidelity and good faith to their supervisors who are agents of their employer. That duty does not cease once notice of termination has been given although, especially during such a period, skins should not be thought too thin. It was a matter of considerable aggravation that Mr Toliopoulos sought utterly to damn Mr Hornyak in the eyes of union officials with whom he would be likely to need to deal on a continuing basis. Mr Hornyak and his methods may have been none too attractive, but Mr Toliopoulos was himself hardly fit to turn preacher. This case will not reasonably bear a “charitable” approach: c.f. Finch v Sayers (1976) 2 NSWLR 540 at 545: this was no mere spontaneous outburst, nor a single, closely-confined expression of inappropriately-worded bitterness. No employment relationship, especially involving an employee in a managerial position, could be expected to continue after those letters.

The question arises of how legally to categorise and to give effect to this “misconduct” under the Act.  At common law, misconduct first discovered after termination might retrospectively be relied upon by an employer to justify a summary dismissal:  Boston Deep Sea Fishing & Ice Co v Ansell (1888) 39 Ch. D. 339; see also Lane v Arrowcrest Group Pty Ltd (1990) 43 IR 210 at 237 per von Doussa J and Byrne v Australian Airlines Ltd (1995) 61 IR 32 at 73. While those latter cases dealt with award requirements that termination of employment not be “harsh, unjust or unreasonable”, with respect I agree with von Doussa J’s remarks and regard them as perfectly applicable here. Properly understood, Wilcox and Ryan JJ were not, in my opinion, saying differently in Gregory v Philip Morris (1988) 80 ALR 455 (at 471).

Under s 170DE(1) the right of the employee is that the employment should not be terminated by the employer unless one or more valid reasons connected (so far as is relevant here) with the employee’s conduct, or based on the operational requirements of the undertaking, exist. If such a reason exists, the employer is entitled to terminate the employment. In my view, such a reason may, at least in some cases, exist even though the factual basis for that reason may only arise, or knowledge of it may only come to the employer, after the employer has taken self-executing steps to terminate the employment for another “non-valid” reason.

A (regrettably) fairly common kind of case presented to the Court involves redundancy situations:  an employer has impeccable reasons for reducing the number of employees, but the selection of those actually to go is not self-evident, nor is it otherwise “validly” explained by the employer: see e.g. Kenefick v Australian Submarine Corporation (No. 2) (1996) 65 IR 366, and Westen, supra. If the employer had given notice of termination to employees thus invalidly selected, and during the period of notice some other economic event occurred which would self-evidently justify the termination of the employment of those who had already been given notice, the employer desirous of relying on that second reason for termination would be required under s 170DB to give notice (or compensation in lieu thereof) of a termination based on such second reason as a justification for the termination previously sought to be effected. However, if the notice or compensation given in relation to the termination for the first and invalid reason was sufficient to include what is required to be given for the second, then there is no injustice in permitting the employer to rely on the second, valid reason. To hold otherwise would, in my opinion, not be to apply the Act in the practical and commonsense way that all judges of the Court have always insisted should be done.

Where, as here, an invalid first reason is followed by the occurrence of, or the acquisition of knowledge of the prior occurrence of (in the words of s 170DB(1)(b)) serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period, ex hypothesi the employee would not be entitled to any more notice, either at common law or under s 170DB. It would further offend common sense and reasonably-held, general conceptions of fair play in the community not to permit the employer to rely on such occurrence or knowledge of it to justify the termination already set in train. S 170DE(1) permits a termination where there “is” a valid reason for it. A valid reason does exist for such termination. Although, in one sense, a termination of the employment may be effectuated in a self-executing way by the giving of notice of such termination (and even if that termination be unlawful e.g. Byrne v Ansett Airlines, supra), the employment is, in another sense, only terminated when work and the requirement for it ceases:  notice of termination may be consensually withdrawn.  For present purposes, the termination should be viewed as such cessation, not the initiation of the process which culminates in such cessation.

Is relief “appropriate”?

If that analysis be incorrect, the Court may still approach the matter in a fair, practical and commonsense manner.  If, as the company argued, my decision in Nikoloska v Sterling Ethnic Aged Community Hospital (1996) 68 IR 165 was mistaken, and the broad criterion of “appropriateness” is available, then it would be the height of inappropriateness, in my opinion, for the Court to grant relief in respect of a termination, not validly based on the undertaking’s operational requirements, when termination at the same time might validly have been made for serious misconduct.

However, I am not persuaded by the arguments put to me in this case that Nikoloska was wrongly decided. In that case, I held that the 1995 amendments which introduced an express, “appropriate” criteria for the granting of relief did not apply to cases like the present one where there had been, before the day fixed for the commencement of those amendments, a judgment by a judicial registrar which would have finally disposed of an application for relief under s 170EE, save only that an application for a review by a judge of such decision had been made. The criticism here of my reasoning in Nikoloska is that I confused the nature of a review and an appeal.  A reading of what I said in Nikoloska does not bear this out.  It still seems to me that a judicial registrar’s judgment which would dispose of a matter finally is, for present purposes, as much a “final judgment” as such a judgment given by a judge, even though the judicial registrar’s judgment is subject to a rehearing de novo on a review, whereas that of the judge is subject only to the more confined processes of an appeal.  Nikoloska has been acted upon by many litigants and I am not persuaded that it is wrong, although other arguments do occur to me as to why it might be erroneous.  I intend to follow it.

A discretion to grant relief

Even so, there was a discretion to grant relief before the 1995 amendments, which flowed from the use of the word “may” in s 170EE after the enactment in 1987 of s 33(2A) of the Acts Interpretation Act 1901 (Cth): Liddell v Lembke (1994) 56 IR 447 at 465 and 473. As the Act itself did not specify any criterion for the exercise of that discretion, such criteria:

“are those emerging from ‘the subject matter and the scope and purpose’ of the legislation:  see R v Australian Broadcasting Tribunal: ex parte 2HD Pty Limited (1979) 144 CLR 45 at 49”. (Liddell at 465)

No doubt, as pointed out by Wilcox CJ and Keely J in Liddell, because the discretion concerns whether a court should grant a remedy for a legal wrong, it is right to apply the approach taken by the High Court in Ward v Williams (1955) 92 CLR 496 at 508:

“Prima facie, therefore, proof of the existence of [the legal wrong] should lead a [court] to make an order when a complaint comes before [it]”.

But that approach is the prima facie one.  In my opinion it would be contrary to every indication to be drawn from the “subject matter and the scope and purpose” of the legislation not to acknowledge that the prima facie entitlement of an applicant under s 170EE to relief where a termination is shown to have been instigated for a reason which was not “valid”, may nevertheless be defeated where another valid reason is shown to have existed which would have warranted the employment having been brought to an end no later than it was; at least this is so where such other valid reason is serious misconduct in the sense that I have described it. To say otherwise is, in my opinion, to impute a lack of common sense and concern for fair dealing to Parliament, and to the (tripartite) I.L.O. framers of the Convention which bred the legislation. The legislation was not intended as a charter of protection for pharisaical, rogue employees: so much is even textually clear, for example, from s 170DC(b) (which, on the facts, is well in point here).

Compensation:  de minimis

If that reasoning too be mistaken, Mr Toliopoulos needs to contend with the well-settled doctrine (see e.g. the third round of Kenefick v Australian Submarine Corporation (No 3) (IRCA, Full Court, 8 July 1997) that regard ought be had to the likely prospective length of the employment relationship, had the unlawful termination not occurred.  Such was Mr Toliopoulos’s opinion of Mr Hornyak, in my opinion, that he would have left the company’s employ as soon as he could find other employment.  He was disabled from work by his non-work related injury and would have been so for some considerable time.  He could not have had, on account of the recency of his employ by the company, the right to any significant period of sick leave.  His monetary loss on account of his unlawful termination was likely to be so little that it is proper that the Court treat it as de minimis, and hold that no case for compensation has been made out, c.f. Kenefick (No 3).  Plainly, reinstatement would be impracticable, as both parties recognised.

Conclusions

For these reasons, I quash the orders made by the judicial registrar.  Mr Toliopoulos’s application to the Court for relief should be dismissed.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:            25 July 1997

Counsel for the Applicant:	J. Gallagher
Representative for the Applicant:	Employer's Federation of New South Wales
Counsel for the Respondent:	P. Coleman
Representative for the Respondent:	J. Law
Date of Hearing:	14 & 15 February 1996,  15 & 16 April 1996, 17 September 1996
Date of Judgment:	25 July 1997