Howard v Australian Barley Board No. Scgrg-98-568 Judgment No. S329

[1999] SASC 329

HOWARD  V  AUSTRALIAN BARLEY BOARD

[1999] SASC 329

1 JUDGE BURLEY.     By application dated 24 March 1999 the defendant sought the following orders:-

1. That the plaintiff’s action be dismissed and judgment given for the defendant.

1. That in the alternative the proceedings herein be stayed pending the institution and resolution of the plaintiff’s proceedings against the defendant in the Australian Industrial Relations Commission."

2 The application refers to Rules 25.04 and 3.08 of the Supreme Court Rules.  However, at the commencement of the hearing of the application, Mr Stanley, counsel for the defendant, said that his client would not be pursuing the relief sought in paragraph 1 of the application.  In addition, during the course of his submissions, Mr Stanley agreed that the application for a stay as set out in paragraph 2 of the application was interlocutory in nature.  Consequently, the defendant does not rely upon the provisions of SCR 25.04 which permits a defendant to apply for summary judgment.  As far as I can see there is no SCR 3.08 but SCR 3.01(b) confirms the power of the Court to grant a stay of proceedings where the justice of the case so requires.
3 The fact that this is an interlocutory application for a stay has an important bearing upon the application itself.  On an interlocutory application it is not the function of the Court to make final decisions about the rights and liabilities of parties.  It was not disputed that the Court has power to grant a stay on an interlocutory application.  The nature of this case is such that careful consideration has to be given as to the respective contentions advanced by the parties on the application before deciding whether or not to grant or refuse the application.  This is a somewhat trite observation but it needs to be emphasised because both the defendant and the plaintiff have advanced arguable cases.
4 It is common ground that on 22 August 1995 the plaintiff entered into a contract of employment with the defendant, the terms of which were set out in the letter of appointment dated 22 August 1995, a copy of which is Exhibit "BJD2" to the affidavit of Mr Duggan sworn on 24 March 1999.  The letter provides for the appointment of the plaintiff as the domestic marketing manager of the defendant.  A base salary of $69,000.00 per annum is provided for.  There are also terms in relation to superannuation, the provision of a motor vehicle and reimbursement of telephone expenses.  Paragraph 6 of the letter is as follows:-

1. General

All other terms and conditions will be as per the Australian Barley Board (Interim) Award of the Australian Industrial Relations Commission, but excluding clauses 9 Salaries, 14 Higher Duties, 13 Overtime and subclause 21(k) Leave Loading."

5 In paragraph 4 of the statement of claim the plaintiff alleges that it was an express term of the employment contract that "the termination of the employment of the plaintiff by the defendant shall not be harsh, unjust or unreasonable".  It is further alleged that on 11 November 1997 the defendant wrongfully and in breach of the contract of employment purported to dismiss the plaintiff with immediate effect.  The plaintiff seeks an order for specific performance of the contract of employment and damages.
6 The defendant denies that the plaintiff is entitled to the relief sought in the statement of claim.  On this application, it is argued that because of the inclusion of certain provisions of the Award, the plaintiff must, before he is entitled to sue for wrongful dismissal in the ordinary Courts, follow the relevant provisions in the Award relating to the resolution of grievances.
7 The relevant parts of Clause 8(m) of the Award, which are said by the defendant to be incorporated into the contract of employment, are as follows:-
"Unfair dismissals

(m)   (i)     Termination of employment by the employer shall not be harsh, unjust or unreasonable ...

1. Subject to the relevant provisions of the Industrial Relations Act 1988, any dispute or claim arising under subclause (m) hereof shall be dealt with in the manner prescribed in clause 36 - Grievance and disputes procedure, of this award."

8 Clause 36 of the Award is as follows:-
"36 - GRIEVANCE AND DISPUTES PROCEDURE

Any grievance, industrial dispute or matter likely to create a dispute shall be dealt with in the following manner:

(a)     The matter shall first be discussed by the employee with the supervisor (if appropriate).

(b)     If not settled the matter shall then be discussed between the workplace representative and an appropriate representative of the employer.

(c)     If not settled the matter shall be further discussed between the appropriate union official and the appropriate representative of the employer.

(d)     By agreement between the parties, the matter may be referred to a disputes committee which shall be chaired by a mutually acceptable independent person.

(e)     If the matter is still not settled in accordance with these procedures either party may refer the matter to the Australian Industrial Relations Commission for determination and such decision, subject to the parties’ right of appeal, will be accepted.

(f)     Without prejudice to either party and except where a bona fide health and safety issue is involved, work shall continue while matters in dispute are being dealt with in accordance with these procedures."

9 It is common ground that the procedures set out in Clause 36 of the Award have not been followed by either party. The defendant argued that the plaintiff, by resorting to proceedings in this Court, has breached the provisions of Clause 36 of the Award and should not be permitted to continue to do so. Reliance was placed in particular on the decision of the House of Lords in Channel Tunnel Group Ltd and Anor v Balfour Beatty Construction Ltd & Ors [1993] 1 All ER 664. In that case the House of Lords held that where a contract between parties provided for extra-curial procedures to be undertaken in order to resolve disputes between them, the Court had a discretion to stay curial proceedings if these were resorted to in breach of the relevant contractual provisions. The plaintiff accepted that decision as a correct statement of the law but said that it did not apply to these proceedings.
10 It was argued by the plaintiff that not all of the provisions in the Award were applicable to the contract of employment between the plaintiff and the defendant. In essence, it was submitted that paragraph 6 in the letter of appointment dated 22 August 1995 ought to be construed as providing that only terms and conditions of the Award which were applicable to the parties were to be incorporated into the contract of employment. Mr Heywood-Smith, counsel for the plaintiff, referred me to provisions of the Industrial Relations Act 1988 and regulations made thereunder applicable as at August 1995. He referred to Section 99(1) of the Act which dealt with registered organisations bringing matters before the Australian Industrial Relations Commission. He said there was no provision for individuals, such as the plaintiff, to do so. He next referred to regulation 30D. That limited an individual’s ability to have resort to the Commission for a claim based on an alleged unfair dismissal to cases where the salary of the individual did not exceed $64,000. In that way, he argued, the defendant had not established that the plaintiff had standing to have any dispute concerning the termination of his employment dealt with by the Commission. More importantly, I think his argument advances the proposition that, if the plaintiff has no standing before the Commission, he cannot be said to be in breach of the contract of employment in resorting to curial proceedings without going through the procedures referred to in Clause 36 of the Award.
11 In my view, the positions respectively advanced by the plaintiff and the defendant on this application are both arguable.  It is not for me on this application to attempt to resolve that dispute.  That will be the function of the trial Judge.  It is possible that the trial Judge will accept the arguments advanced by the defendant and grant a permanent stay of these proceedings on the authority of Channel Tunnel Group Ltd.  Equally, the trial Judge, having heard all of the evidence and the submissions advanced by counsel, will conclude that not all of the provisions of the Award have been incorporated into the contract of employment between the parties and that there is no precondition governing the plaintiff’s resort to the ordinary civil courts.  In those circumstances, to grant a stay of the proceedings at this stage would be to pre-empt the position of the trial Judge.
12 There are no circumstances of particular undue hardship being suffered by the defendant if a stay is refused.  If the plaintiff is ultimately successful in this Court, the defendant can hardly complain that it is now subject, or potentially subject, to hardship.  If the defendant is able to make out its case successfully before the trial Judge, it will obtain a permanent stay of the proceedings.  In addition, the defendant has not yet made a decision as to whether or not, if a stay were now granted on an interlocutory basis, it would, if the plaintiff followed the procedures provided for in the Award, refer the dispute to the Commission.  It wants to wait and see what happens.  Such a position, although perfectly legitimate, hardly lends force to the suggestion that the interlocutory stay order should be granted.
13 As to the defendant’s reliance upon Channel Tunnel Group Ltd, the principles stated in that case may be of great assistance to the defendant but only if it can be established that the plaintiff has been in breach of the contract of employment by resorting to these curial proceedings.  That is a point of distinction between the facts of that case and the facts of this case.  The House of Lords decision was based on a breach of the contract which provided for an agreed method of resolving disputes.  On this application, I can make no finding of a breach on the part of the plaintiff.  He may or may not be in breach of the contract of employment; that is a matter for the trial Judge.
14 For the above reasons the defendant’s application for a stay will be refused.  I will hear counsel as to costs.