HotCopper Australia Ltd v SAAB
[2002] WASCA 190
•18 JULY 2002
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION: HOTCOPPER AUSTRALIA LTD -v- SAAB [2002] WASCA 190
CORAM: ANDERSON J (Presiding Judge)
PARKER J
HASLUCK J
HEARD: 2 APRIL 2002
DELIVERED : 18 JULY 2002
FILE NO/S: IAC 6 of 2001
BETWEEN: HOTCOPPER AUSTRALIA LTD
Appellant
AND
DAVID SAAB
Respondent
Catchwords:
Contractual benefits - Claim for - "Industrial matter" - Jurisdiction - Clause in employment contract obliging an employer corporation to issue shares and options to chief executive - Failure to do so - Claim by chief executive for damages - Whether claim for damages is a claim for denied contractual benefits - Jurisdiction of Commission to award damages - Limits on scope of definition of industrial matter - Test to be applied
Legislation:
Industrial Relations Act 1979, s 6, s 7, s 9(2), s 23(1), s 23A(1)(a), s 26, s 27(1)(s), s 29
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant: Mr M H Zilko SC & Mr P Redding
Respondent: Mr M W Odes QC
Solicitors:
Appellant: Williams & Hughes
Respondent: David Heldsinger
Case(s) referred to in judgment(s):
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Belo Fisheries v Froggett (1983) 63 WAIG 2394
Coles Myer Ltd v Coppin & Ors (1993) 73 WAIG 1754; (1993) 11 WAR 20
Kounis Metal Industries Pty Ltd v Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 73 WAIG 14
Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444
Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307
Photo Production Ltd v Securicor Transport Ltd [1980] AC 827
Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11
Sakal v T O'Connor & Sons Pty Ltd (1995) 75 WAIG 1509
Slonin v Fellows (1984) 154 CLR 505
The Federated Miscellaneous Workers Union of Australia (WA Branch) v Nappy Happy Hire Pty Ltd t/a Nappy Happy Service (1994) 74 WAIG 1493
Welsh v Hills (1982) 62 WAIG 2708
White and Carter (Councils) Ltd v McGregor [1962] AC 413
Case(s) also cited:
Elmslie v Federal Commissioner of Taxation (1993) 118 ALR 357
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
RGC Mineral Sands Ltd v Constructions, Mining, Energy, Timberyards, Sawmills, Woodworkers Union (WA) (2000) 80 WAIG 2437
Waroona Contracting v Usher (1984) 64 WAIG 1500
ANDERSON J (Presiding Judge): This is an appeal from a decision of the Full Bench of the Western Australia Industrial Relations Commission given on 21 September 2001 dismissing an appeal from a decision of a single Commissioner on a question of jurisdiction.
The respondent employee's claim
The matter began with a notice of application in which the present respondent, Mr David Saab, made an allegation against HotCopper Australia Ltd, his former employer, of unfair dismissal. In the notice of application, the respondent avers that he was employed by the appellant commencing on 17 February 1999 as chief executive officer responsible for the management and operations of the appellant's business. The contract of service provided that his commencing salary was $100,000 per annum and, subject to the happening of certain events, this was to rise eventually to $250,000 per annum. There was a clause relating to motor vehicle entitlements and superannuation. The contract of employment also contained the following clause:
"4.Share and share options
On commencement of your employment, you will be issued with 3,500,000 fully paid ordinary shares in the capital of HotCopper at an issue price of $0.0001 per share. These shares will be the subject of a call option in favour of Mr Ron Gully. The option will expire 16 February 2003. The option may only be exercised if there is a unanimous resolution of the Board that, in the reasonable opinion of the Board, you have been negligent and incompetent in your employment as Chief Executive Officer of HotCopper.
Within 5 business days of your acceptance of the terms and conditions of this letter you will also be issued with the following options to purchase fully paid ordinary shares in the capital of HotCopper.
Number of Options
Exercise Price
Exercise Period
1,000,000
$0.75
4 years
1,000,000
$0.75
4 years
1,000,000
$1.50
4 years
1,000,000
$1.50
4 years
1,000,000
$2.00
4 years
1,000,000
$2.00
4 years"
The respondent was dismissed from his employment on about 14 May 1999 without receiving the shares or options. On 8 June 1999, the respondent, by solicitors, filed the initiating application as a single application "for Unfair Dismissal and Denied Contractual Benefits" (AB 137). The application was given the number 774 of 1999. The "Denied Contractual Benefits" were particularised as salary of $600,000, fully maintained motor vehicle, superannuation contributions of $42,000 and unpaid expenses (AB 149 ‑ 150).
In addition, the following claim was made:
"5.3In addition, the Applicant seeks an order that the respondent:
(a)issue and transfer to the Applicant of 3.5 million fully paid ordinary shares in the share capital of the Respondent at an issue price of $0.0001 per share; and
(b)issue and transfer to the Applicant of options over 6 million fully paid ordinary shares in the share capital of the Respondent."
This claim was really for the issue rather than the transfer of the shares and options. The shares and options were to be new shares and options not shares and options to be transferred from someone else's ownership.
The proceedings before Commissioner Gregor
On 15 June 2000 Gregor C declared that the respondent had been unfairly dismissed and ordered that he should be reinstated as from 6 June 2000, without loss of earnings and benefits, "as if he had not been dismissed". This order left unresolved the claim for the accrued entitlement to the shares and options. It is common ground that the Commission could not order the appellant to fulfil its obligation to issue the shares and options because the company could not lawfully do so without shareholder approval and shareholder approval had not been obtained and probably would not be obtained. It would therefore have been pointless to make the order. The Commissioner decided that, nevertheless, the respondent was "entitled to the benefit of his contract" by which it is apparent that the Commissioner meant that the respondent was entitled to the money value of the shares and options. As to this, however, he observed that "nothing has been put which would enable me to assess what that benefit should be, nor have I received any argument about whether the Commission has power to make an award of damages if the specific terms of a contract cannot be ordered as in a case like this".
By s 27(1)(s), the Commission has the power to "consolidate or divide … all or any matters before the Commission" and the Commissioner exercised that power to divide the respondent's application in order, as he said, to "enable the application [respecting the shares and options] to remain alive … ". He ordered that the divided application be identified as No 774(A) of 1999.
It seems that Matter No 774(A) of 1999 thereafter proceeded as a discrete and separate claim for "contractual benefits", not as part of the unfair dismissal matter. Pursuant to the terms of the contract, the entitlement to the shares and options had accrued long before the respondent was dismissed and the claim in respect of them was therefore unrelated in time or circumstance to that dismissal.
In the divided Matter No 774(A) of 1999, the respondent filed fresh particulars of claim in which he no longer sought performance in specie of cl 4, accepting that this was impossible. Instead, he put forward a claim as follows:
"Specific Performance
3.1The Applicant concedes that the Commission is unable to order specific performance of the Shares and the Options.
3.2The Applicant's claim is for a benefit denied to him namely a sum of money equal to the value of the Shares and the Options as set out in paragraphs 4 and 5 … "
The primary claim in respect of the shares was for $2.24 million (in the alternative, various lesser sums down to $840,000, depending on how the shares should be valued) and, in addition, "a sum of money equal to the lost opportunity to him of entering into the market, exercising his options and realising their value during the exercise period (from 9 March 1999 to 9 March 2003), further particulars of which will be provided by way of expert evidence prior to and at the hearing of the matter" (AB 117 ‑ 118).
The formal order which the respondent sought was "an order for the benefit denied to him namely a sum of money equal to the value of the benefit of the Shares and the Options as set out … above".
Claims for denied contractual entitlements may be referred to the Commission by employees personally under s 29(1)(b)(ii) which provides:
"29. By whom matters may be referred
(1)An industrial matter may be referred to the Commission -
(a)…
(b)in the case of a claim by an employee —
(i)…
(ii)that he has not been allowed by his employer a benefit … to which he is entitled under his contract of service,
by the employee."
By its answer, the appellant contended, inter alia, that the respondent's claim was not an industrial matter and was beyond the jurisdiction of the Commission on that account.
By a decision handed down on 12 March 2001, Gregor C determined that the matter was an industrial matter and that he had the power to make an award of a monetary sum equivalent to the value of the shares and options. This was decided as a preliminary issue and no assessment of the monetary value of the shares was embarked upon.
Commissioner Gregor's decision
Gregor C considered that he was bound by the judgment of the Full Bench in Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307 to hold, firstly, that s 29(1)(b)(ii) is "the Commission's source of power relating to contractual benefits" (AB 130; 2001 WAIRC 02268 at 8), secondly, that, as long as the Commission determines that a claim "has been properly made under s 29(1)(b)(ii) it has the jurisdiction to decide the claim" and, thirdly, that a claim for money in lieu of the performance by the employer of his contractual obligations is not a claim for damages, but rather a claim "to enforce a benefit under the contract" (AB 131; 2001 WAIRC 02268 at 12).
Gregor C regarded the money claim in this case as "a substituted form of specific performance" (AB 130; 2001 WAIRC 02268 at 8). He held that "[t]he mere fact that the claim could be categorised and could be valued by reference to common law concepts does not mean that it is no longer a contractual benefit under the contract" (AB 131; 2001 WAIRC 02268 at 10). Gregor C considered that from this it followed that the claim in question was within the particular jurisdiction which he believed was conferred by s 29(1)(b)(ii) and, in settling it, the Commission could proceed to act according to the substantial merits of the case and was not confined to the specific claim made or the subject matter of the claim (AB 133 ‑ 134; 2001 WAIRC 02268 at 19).
The appellant appealed to the Full Bench, who dismissed the appeal, and it is from that dismissal that this appeal is brought. There are two grounds of appeal. As they were developed in argument, they were that the matter was not an industrial matter and that, in any event, the Commission did not have the power to make a monetary award in the nature of damages in lieu of ordering that the contract of service be performed in specie because a claim for damages for breach of contract is not within s 29(1)(b)(ii) as a matter that may be referred to the Commission by the employee himself.
Is s 29(1)(b)(ii) a source of power?
It is not altogether clear to me to what degree the decisions below depend on the idea that s 29(1)(b)(ii) is, to use the words of Gregor C, the "source of power" with respect to claims by employees for contractual benefits. The section is a source of power in a very limited sense only in that its purpose is to furnish the Commission with authority in certain cases to entertain a reference to it by an individual employee rather than by a registered organisation. It does so by expressly conferring standing on an employee himself or herself to refer to the Commission a claim of the kind described in the subsection. But that is all it does: Coles Myer Ltd v Coppin & Ors (1993) 73 WAIG 1754; (1993) 11 WAR 20 per Kennedy J at page 24. The section does not otherwise expand the jurisdiction of the Commission or enlarge the definition of industrial matter. It does not confer a separate or particular head of jurisdiction with respect to unfair dismissal and/or disputes over contractual entitlements. Whilst it may be convenient to refer to a reference pursuant to s 29(1)(b)(ii) as a claim "under" s 29(1)(b)(ii), the Commission's authority to deal with such matters is still to be found in s 23(1) and the definition of industrial matter in s 7. The matter which is referred must still be an industrial matter as defined in s 7.
"Industrial matter" - s 7 and s 7(1)(1a)
Prima facie a claim by an employee (as distinct from an ex‑employee) that he has not received a benefit provided for in the employment contract falls within the definition of "industrial matter" in s 7 of the Act. It is a matter "relating to the … rights … of [the] employee" within the general words of the definition and it is a matter relating to "the wages, salaries, allowances or other remuneration of … [the employee] in respect of … [his] employment" within subpar (a) of the definition and is a matter squarely within the matters declared by s 7(1)(1a) to be "an industrial matter for the purposes of this Act … ". Thus, a dispute concerning either the denial of a money entitlement provided for in the contract or the denial of an entitlement in a form other than money would be within the literal ambit of the definition of "industrial matter" in s 7. So much was assumed by this Court in Belo Fisheries v Froggett (1983) 63 WAIG 2394 per Olney J at 2396 at least with respect to money entitlements. It would also plainly be a claim of the kind described in s 29(1)(b)(ii) and so referable to the Commission by the employee himself.
The question whether a dispute is an industrial matter, if it is a dispute between a former employer and an ex‑employee, was answered in the negative by this Court in a series of decisions which may be referred to as the "Pepler" line of cases, they being Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11; Kounis Metal Industries Pty Ltd v Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 73 WAIG 14; Coles Myer Ltd trading as Coles Supermarkets v Coppin & Ors (supra); The Federated Miscellaneous Workers Union of Australia (WA Branch) v Nappy Happy Hire Pty Ltd t/a Nappy Happy Service (1994) 74 WAIG 1493 and Sakal v T O'Connor & Sons Pty Ltd (1995) 75 WAIG 1509. In these cases, it was held, in effect, that a claim for a monetary sum, whether it had accrued due under the contract or whether it was in the nature of a claim for damages for breach of contract, was not an industrial matter if the employment relationship had ended. The effect of these cases was, however, reversed by the enactment in May 1995 of s 7(1)(1a) which provides:
"(1a)A matter relating to —
(a)the dismissal of an employee by an employer; or
(b)the refusal or failure of an employer to allow an employee a benefit under his contract of service,
is and remains an industrial matter for the purposes of this Act even though their relationship as employee and employer has ended."
I mention this only in passing, as we are, of course, not here concerned with a claim by an ex‑employee. The order of reinstatement made by Gregor C had the effect that the employer/employee relationship must be taken never to have ended. However, as Gregor C recognised, a jurisdictional difficulty may arise when the claim referred under s 29(1)(b)(ii) is not for the benefit, allowance or entitlement that is set out or implied in the contract, but is for monetary compensation in lieu. Gregor C resolved this difficulty by holding that there was no relevant distinction between an award of specific benefits provided for in the contract and an award of money in lieu of specific benefits. As has been observed, he described the latter form of remedy as "a substituted form of specific performance".
Distinction between award of contractual benefits and award of damages
I would doubt the legal correctness of the proposition that an award of monetary compensation for non‑performance of a contractual obligation is a form of specific performance. A party suing for damages is in no relevant sense suing for enforcement of the contract. Damages is a common law remedy which is not based on any doctrine relating to implied contractual terms or their enforcement. The common law does not specifically enforce executory contracts. An action at law to recover the payment of sums accrued due under a contract (wages earned but not paid, the price of goods sold and delivered, hire instalments, etcetera) is an action in debt, not for specific performance; White and Carter (Councils) Ltd v McGregor [1962] AC 413, especially per Lord Morton at 432 ‑ 433 and Lord Keith at 435 ‑ 439; Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 per Latham CJ at 449 ‑ 451 and Dixon J at 463 ‑ 464.
In Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 849, Lord Diplock advanced his famous theory that the liability to pay damages was a "secondary" obligation, that is, secondary to the "primary" obligation to perform the terms of the contract; and was a liability which had its "source" in the contract; and was a liability "implied by law". However, this statement, to the extent that it has obtained any currency, has never been understood as intending to lay it down that there is implied into every contract as a matter of law a term that if the contract is broken, the contract‑breaker will pay unliquidated damages so that a claim for damages is a claim for enforcement of the contract. The two causes of action (for compensation in damages on the one hand and specific performance on the other) have always been and remain antithetic. Whilst they can coexist in the same suit, they can only do so as alternative claims: Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 per Barwick CJ at 452.
Jurisdiction to award monetary compensation
This does not necessarily mean that the Commission may not entertain a reference under s 29(1)(b)(ii) unless it is in its form and in its terms a claim by an employee to recover in specie the precise benefit expressed or implied in the employment contract. In the context of the exercise of jurisdiction to resolve an industrial dispute of the kind described in s 29(1)(b)(ii), nothing much would seem to turn on the distinction between the two remedies (damages and specific performance) in the general run of cases. It seems to me that if there is a dispute which is an industrial matter, and the subject matter of it is a claim (in the sense of a complaint) of the kind defined in s 29(1)(b)(ii), it is a dispute that may be dealt with by the Commission on a reference by the employee. How it is dealt with will be for the Commission to decide within the powers and discretions conferred on it by those sections of the Act which regulate the manner in which the Commission may exercise its jurisdiction in any particular case. Without intending to express a concluded view, I am inclined to think that this would include making a monetary order for compensation - that is, a damages award - in an appropriate case, as long as its purpose is to do no more than is necessary to "redress the matter by resolving the conflict in relation to the industrial matter" - Welsh v Hills (1982) 62 WAIG 2708 - and as long as its effect is so limited.
On the other hand, because of the limitations on the power of the Commission which are prescribed by s 23(3)(h), a correct analysis of the remedy that is sought by the employee or proposed to be given by the Commission might be critical in the context of the exercise of jurisdiction to resolve an industrial matter of the kind described in s 29(1)(b)(i); that is, a claim of harsh, oppressive or unfair dismissal. By a combination of s 23(3)(h) and s 23A(1) and (4), it would appear that the Commission's powers to make a monetary award in harsh, oppressive and unfair dismissal cases are limited to ordering payment of a sum not exceeding 6 months' remuneration as compensation for loss or injury caused by the harsh, oppressive or unfair dismissal (s 23A(1)(ba)), plus "any amount to which the claimant is entitled" (s 23A(1)(a)). Arguably, on a proper construction of the Act, this latter head of claim is restricted to sums accrued due under an express or implied term of the contract and does not extend to monetary awards in the nature of damages for breach of that term. Hence, a correct analysis of the particular head of claim advanced by an employee in a harsh, oppressive or unfair dismissal case (as to whether it is for payment of an accrued entitlement or for damages for breach of contract) might be required. I say no more about that because this divided matter does not involve an exercise of jurisdiction with respect to a claim of harsh, oppressive or unfair dismissal and we have not had the benefit of argument on the meaning of the phrase "any amount to which the claimant is entitled" in s 23A(1)(a).
Was this claim an industrial matter?
It must be recognised that there is a limit to what is and what is not an industrial matter in the master/servant context for the purposes of the Industrial Relations Act1979 even although the definition of the term in s 7 would appear to be far‑reaching in that context. Parliament cannot be taken to have intended that any matter relating in any way to the duties of employers as regards contractual benefits is a matter that may be dealt with by the Commission as an industrial matter, although it is possible to read the definition of industrial matter as expansively as that. Notwithstanding the enactment of s 7(1)(1a), the definition must be read down by reference to the scope and purpose of the Act as a whole "and so read, must be confined to [matters] of an industrial nature": Slonin v Fellows (1984) 154 CLR 505. Otherwise, as Kennedy J pointed out in Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (Pepler's Case) (supra) at page 18, a vast range of powers would be available to the Commission which it could never have been thought appropriate to confer on it. Take, for example, a reference by an employee of a dispute with respect to a safety matter. The employee may fairly allege that his implied contractual entitlements include providing him with a reasonably safe workplace, and safe and suitable equipment, and that the failure to do so, being a matter relating to a benefit under the contract of service within the general words of the definition of industrial matter in s 7, is an industrial matter. Subject to s 7(3), it would be difficult to deny the employee's standing to refer the matter to the Commission under s 29(1)(b)(ii) and, again subject to s 7(3), it would be difficult to deny the Commission's power to deal with the matter by making appropriate orders in order to settle the dispute. But supposing the employee's reference included a claim that, because he had been denied the benefit of a safe workplace in breach of the implied agreement, he had suffered loss through injury. To my knowledge, it has not been suggested that a claim by an employee for damages for injuries sustained in the course of his employment, in consequence of a breach of the employer's obligation under the contract of employment to provide a safe working environment, is a matter which can be dealt with by the Commission, even although it would be within the reach of the literal words of the definition of industrial matter.
I think it is impossible to attribute to parliament an intention that the Commission should be a tribunal with power to deal with the full range of conflicts and causes of action that might possibly arise between master and servant, including between corporations and their highly‑paid executives and top management. In my opinion, a line must be drawn at some point to mark out the boundary beyond which it was never intended that the Commission's powers to settle disputes should be exercised and I think that the line must be drawn by reference to the intrinsic nature and circumstances of the particular dispute, the question being whether it is or is not really and truly a dispute of an industrial nature, susceptible of just resolution under the Act.
It is to be borne in mind that Commissioners (except the President) are not required to be legally qualified. As can be seen from a reading of Pt II Div 1 of the Act, the Commission is constituted as a specialist industrial relations tribunal comprising Commissioners experienced in industrial relations. The primary qualification of the Chief Commissioner is that he should have "experience at a high level in industrial relations": s 9(2). The principal objects of the Act are, relevantly, to encourage the settling of industrial disputes and to provide means for preventing and settling industrial disputes not resolved by amicable agreement: s 6(b) and (c). Whilst a claim by a highly‑paid executive for damages arising from the breach of a particular term in a sophisticated remuneration package might fall within a literal interpretation of the definition of industrial matter in s 7, it may, in truth, have little or no industrial relations complexion judged by reference to the scope and purpose of the Act.
Conclusion
In this case, the chief executive of a corporation makes a claim for damages for the breach of a promise by the corporation to issue him with shares and options in the corporation as part of his salary package. In my opinion, in its essential character, this is a private claim of a commercial nature which lacks any ingredient or complexion of industrial relations. If there had never been a claim of unfair dismissal, but simply a claim by the respondent during the continuance of his contract of service for damages for breach of a promise to issue him with 3,500,000 shares and 6,000,000 options allegedly worth many hundreds of thousands, perhaps millions, of dollars, the absence of the industrial relations ingredient in the claim would be more clearly seen. That is how the claim should now in fact be seen. It is not a claim the resolution of which one would expect to be committed to a tribunal created for the purpose of achieving the objects set forth in s 6 of the Act. Neither is it a dispute which parliament could have thought might be justly settled by an industrial relations tribunal acting in conformity with the requirements of s 26; that is to say, by reference only to the substantial merits of the case without regard to technicalities or legal form and without regard for rules of evidence and by taking into consideration the capacity of the defendant/employer to pay. Those criteria, as appropriate as they may be to ensure the fair and just resolution of industrial disputes, are inimical to the proper adjudication of the precise legal rights and obligations of the parties in this case, in the events which have happened.
I would uphold the appellant's contention that, in its present form, the respondent's claim is not an industrial matter.
It was submitted on behalf of the respondent that this construction of the Act "would reward a delinquent employer at the expense of the employee". There is no question of reward. The respondent is at liberty to pursue his claim in the normal manner in the civil courts.
The appeal must be allowed.
PARKER J: I respectfully agree with the reasons for decision now published by Anderson J and with the order proposed.
HASLUCK J: I have had the advantage of reading in draft the reasons to be published by the presiding Judge. I agree that the appeal should be allowed for the reasons given by Anderson J.
The respondent, David Saab, brought an application to the Industrial Relations Commission in which he advanced a claim for unfair dismissal and benefits not allowed under his contract of employment. The benefits he claims not to have been allowed under his contract of employment consisted of certain shares and options to which he was allegedly entitled.
The issue which arises on this appeal is whether the Commission has jurisdiction and power to order an employer to pay a monetary amount in satisfaction of benefits allowable to an employee under a contract of employment.
The matter proceeded to a hearing before Commissioner Gregor at first instance. The Commissioner found that the respondent had been unfairly dismissed. He found further that the respondent had not been allowed benefits under his contract of employment, such benefits being the shares and options mentioned earlier.
In relation to the finding of unfair dismissal, the Commissioner determined that the respondent should be reinstated.
The learned Commissioner went on to deal with the claim for the monetary value of the benefits under the contract in this way. He agreed that the Commission was unable to order that the shares and options allowed for by the contract be issued. He noted that further argument was required as to how the benefits should be assessed and as to whether the
Commission had power to make an award of a monetary sum in these circumstances.
The Commissioner then held that an order would be made providing for liberty to apply in respect of these matters. The proceedings were to be divided pursuant to the powers vested in the Commissioner under s 27(1)(s) of the Industrial Relations Act 1979 to enable the application to remain alive so that the liberty to apply could be exercised if necessary.
The respondent had originally sought an order that the appellant company issue and transfer to him the shares and share options in question. In the divided proceedings the respondent conceded that the Commission was unable to order specific performance in respect of the shares and options. His claim was for a benefit denied to him, namely, a sum of money equal to the value of the shares.
It was against this background that the matter was taken on appeal to the Full Bench of the Industrial Relations Commission. The appellant's case on appeal was that the Commissioner erred in finding that he had jurisdiction to hear the respondent's claim for an order for a sum of money equal to the value of shares and options which the employer had failed to issue. There was said to be no power in the Commission to make the order sought. The Full Bench dismissed the appeal.
I proceed from the premise that the jurisdiction of the Industrial Relations Commission is defined essentially by s 23 of the Act. The Commission has authority to enquire into and deal with any industrial matter. I am of the view that s 29(1)(b)(ii) is a source of power in a very limited sense only in that its purpose is to furnish the Commission with authority to entertain a reference to it by an individual employee rather than by a registered organisation.
I acknowledge that the definition of industrial matter in s 7 of the Act is broad. However, I do not accept that the Commission is thereby empowered to resolve disputes of any kind between employer and employee. I consider that the claim in the present case should be characterised as a claim for damages arising out of a breach of the contract of employment.
For the reasons given by Anderson J, I consider that the claim for damages in the present case is a private claim of a commercial nature which does not fall within the jurisdiction of the Commission. It follows that I would allow the appeal.
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