Hatchett v Bowater Tutt Industries Pty Ltd (No 2)

Re: CHRISTINA HATCHETT
And: BOWATER TUTT INDUSTRIES PTY LTD
No. S I6 of 1990
FED No. 188
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
Von Doussa J.(1)

CATCHWORDS

Industrial Law - application for the imposition of a penalty - whether breach of an award - whether termination of employment was harsh, unjust or unreasonable.

Industrial Relations Act 1988, s.178

Metal Industries Award, clause 6(d)(vi)

HEARING

ADELAIDE

#DATE 16:4:1991

Counsel for the applicant: Mr J.R. Rau

Solicitor for the applicant: Johnston Withers

Counsel for the respondent: Mr A.D. Short

Solicitor for the respondent: Baker O'Loughlin

ORDER

The application be dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant, who at material times was a member of the Amalgamated Metalworkers Union, an organisation of employees registered under the Industrial Relations Act 1988 ("the Act") seeks the imposition of penalties upon the respondent pursuant to s.178 of the Act. Further, in the accrued jurisdiction of the court she seeks damages for breach of contracts of employment. In the pleadings the applicant alleges the respondent twice broke the terms of clause 6(d)(vi) of the Federal Metal Industries Award in that it dismissed her from employment in contravention of that clause on 12 July 1989, and after her re-engagement, did so again on 3 November 1989. Clause 6(d)(vi) relevantly provides:

"(vi) Unfair dismissals Termination of employment by an employer shall not be harsh, unjust or unreasonable. For the purposes of this clause, termination of employment shall include terminations with or without notice."

1. The respondent carried on business in several divisions. The applicant was employed through the division known as Delta Electronics. She was first engaged on 27 February 1989 as an electronics technician. It is common ground that the respondent was bound by the Award. Delta Electronics was a small undertaking, employing only 8-11 people during 1989. It specialised in making programmable logic controllers ("plc's") which comprised printed circuit boards to which were affixed a considerable number of small electronic components of various kinds. The electronic components were manually fitted in pre-determined positions on the printed circuit, and soldered into place, by process workers employed by Delta Electronics.

2. The duties of the applicant as an electronics technician required her to test plc's put together by the process workers, and locate and repair faults. As the result of events which occurred on 12 July 1989 the applicant ceased to work as an electronics technician and commenced to work as a process worker assembling plc's. By the pleadings, the applicant alleges that on 12 July 1989 her employment was terminated, and that she was then re-engaged in the different capacity of a process worker which attracted a lower award rate. The respondent denies that there was a termination of employment and says that the applicant was merely reclassified in a lower position because she lacked the technical skills necessary to perform the tasks required of an electronics…