John Ferry v Minister for Health, Western Australia
[1995] IRCA 408
•25 Aug 1995
CATCHWORDS
INDUSTRIAL LAW - review of JUDICIAL REGISTRAR - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - termination at initiative of employer - BREACH OF AWARD - NOTICE OF TERMINATION - termination not for a VALID REASON - termination not connected with OPERATIONAL REQUIREMENTS of business - HARSH, UNJUST OR UNREASONABLE - REINSTATEMENT of employee - order for REMUNERATION lost.
Industrial Relations Act 1988 ss 170DE, 170EA, 170EDA, 170EE
Industrial Relations Court Rules 074 r3, 075 r5(1)(b)
D’Lima v Board of Management of Princess Margaret Hospital for Children WI 0658R of 1994, Marshall J, 25 August 1995, unreported
Quality Bakers v Goulding WIR 142/94, 23 June 1995, Beazley J, unreported
Johns v Gunns Limited TI 148R of 1994, 18 May 1995, Northrop J, unreported
Klingenberg v I.R. Cootes Pty Ltd VI 2421R of 1994, 24 August 1995, Marshall J, unreported
Australasian Meat Industry Employees’ Union v Sunland Enterprises Pty Ltd (trading as Sunland Wholesale Meats) (1988) 81 ALR 213, 222, Gray J
No. WI 0641R of 1994
JOHN FERRY v MINISTER FOR HEALTH, WESTERN AUSTRALIA
MARSHALL J
MELBOURNE (heard in Perth)
25 AUGUST 1995
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA )
) No. WI 0641R of 1994.
WESTERN AUSTRALIA DISTRICT REGISTRY )
BETWEEN: JOHN FERRY
Applicant
AND: MINISTER FOR HEALTH,
WESTERN AUSTRALIA
Respondent
JUDGE: Marshall J
PLACE: Melbourne (heard in Perth)
DATE: 25 August 1995
ORDER
THE COURT ORDERS THAT:
1.The Order of the Court constituted by Judicial Registrar Ryan made on 26 April 1995 be set aside and in lieu thereof the following orders be made.
2.It is declared that the termination of the employment of the applicant contravened s170DE Industrial Relations Act 1988 (“the Act”).
3.The respondent appoint John Ferry to another position with the respondent on terms and conditions no less favourable than those on which John Ferry was employed immediately before the termination of his employment.
4.The employment of John Ferry is deemed to have been continued for all purposes from 18 November 1994 to the date the final order is made in this matter.
5.The matter is adjourned to 9.30 a.m. (Western Standard Time) on 25 September 1995 to enable the parties to calculate in accordance with the principles set out in the reasons for judgment the amount of remuneration lost by the applicant because of the termination and specifically the relevant net sum having regard to the deduction of PAYE taxation at the appropriate rate.
NOTE:If agreement is reached a consent order can be made pursuant to Order 35 rule 10.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA )
) No. WI 0641R of 1994.
WESTERN AUSTRALIA DISTRICT REGISTRY )
BETWEEN: JOHN FERRY
Applicant
AND: MINISTER FOR HEALTH,
WESTERN AUSTRALIA
Respondent
JUDGE: Marshall J
PLACE: Melbourne (heard in Perth)
DATE: 25 August 1995
REASONS FOR JUDGMENT
BACKGROUND
On 15 December 1994, the applicant lodged in the Western Australia Registry of the Court, an application under s170EA of the Industrial Relations Act 1988 (“the Act”). The application sought the remedies of reinstatement and compensation in respect of the alleged termination of the employment of the applicant by the respondent on 18 November 1994. The application stated that the applicant was engaged as a Level 1 orderly/ward assistant at the Heathcote Hospital (“the hospital”) in Applecross, Western Australia.
On 9 January 1995, Deputy District Registrar Richardson referred the application to a Registrar for an informal mediation pursuant to 075 r5(1)(b) of the Industrial Relations Court Rules. The conference occurred before the Deputy District Registrar on 13 February 1995 and did not result in a settlement of the application. Certain directions were given for the filing of affidavits to be relied upon before a Judicial Registrar.
The matter was heard by Judicial Registrar Ryan in Perth on 20 April 1995 on which day the Judicial Registrar gave ex tempore reasons for the judgment dismissing the application for want of jurisdiction although his actual written reasons were not produced until 26 April 1995.
The Judicial Registrar held that the circumstances of the applicant’s cessation of employment with the respondent did not amount to a termination at the initiative of the employer.
He found that the applicant had been engaged pursuant to a series of short term contracts, the last of which “was to conclude with the closure of the hospital” (see p6 of the decision of the Judicial Registrar). Judicial Registrar Ryan held that the applicant’s contract of employment expired by the effluxion of time on the closure of the hospital. He effectively held that the contract of employment had come to an end on its own terms without any employer initiative.
A review of the decision of the Judicial Registrar was sought by the applicant on 23 May 1995. Notwithstanding the delivery of the reasons for judgment on 26 April 1995, it appears that such reasons were not made available to the applicant’s union, the Australian Liquor, Hospitality and Miscellaneous Workers Union (“LHMU”), until 19 May 1995. In the circumstances the applicant sought an extension of time within which to bring his application for a review. There was no opposition to the request for such an extension. In the early stages of the hearing of the review on 11 August 1995, I granted the applicant an extension of time within which to bring his application to review the exercise of power by the Judicial Registrar until 23 May 1995, the date of the application for review. I was satisfied and remain satisfied that there were “special reasons” to allow such extension under 074 r3 of the Industrial Relations Court Rules, given the unavailability of the reasons for decision of the Judicial Registrar to LHMU until 19 May 1995.
Before the review was heard on 11 August 1995, the Deputy District Registrar made orders for the filing of affidavits on the review and she noted that the review in this matter “should possibly be heard at the same time” as a review in another matter which subsequently became the subject of the Court’s decision in D’Lima v Board of Management of Princess Margaret Hospital for Children WI 0658R of 1994, 25 August 1995, Marshall J, (“D’Lima”) as yet unreported. The review in this matter was heard simultaneously with D’Lima, given the common identity of counsel, employer and LHMU interests in each matter.
THE EVIDENCE ON THE REVIEW
There was agreement between the parties that the transcript of the proceedings before the Judicial Registrar and the affidavits and exhibits tendered before him should be treated as evidence on the review, with the right being reserved to the applicant to have included in evidence certain portions of his affidavit which were not admitted into evidence by the Judicial Registrar. I subsequently ruled that his affidavit in total should be treated as evidence before me. The effect of the applicant’s evidence before the Judicial Registrar was as follows:-
1.He was employed at first by the respondent on 8 January 1993 and remained in either continuous employment or on continuous short term contracts (as to which it is not presently relevant to determine which was the appropriate description) until 5 February 1993.
2.He was employed for 48 hours late in February 1993 pursuant to a document signed on 17 February 1993.
3.He was further employed from early July 1993 until early October 1993 in the same manner as described in paragraph 1 above.
4.He was employed on 6 and 7 October 1993 pursuant to a document which has an altered date of signature which appears to read “6.10.93”.
5.He was then employed continuously from 8 December 1993 until 25 February 1994.
6.On 31 March 1994 he signed a written contract which had a commencement date of 28 March 1994 (emphasis supplied) and a concluding date of 19 May 1994.
7.On 17 May 1994, two days prior to the alleged conclusion of the period of engagement in the above paragraph, he signed another document with a commencement date of 20 May 1994 and a concluding date of 30 June 1994.
8.On 1 July 1994 he was asked to sign a further document relating to the period 1 July 1994 to 24 August 1994. It is notable that he remained in employment on 1 July 1994 notwithstanding the concluding date of 30 June 1994 in the document referred to in the preceding paragraph.
9.On 9 September 1994, at which time Mr Ferry had been continuously employed by the respondent from 28 March 1994, he received a letter from the Manager of the hospital, Mr Easom in the following terms:-
“Dear John
OFFER OF APPOINTMENT-
(FIXED TERM APPOINTMENT - LEVEL 1
I have pleasure in formally offering you a fixed term appointment to the above position for the period 28 August 1994 to 8 November 1994.
Your Contract of Service is in accordance with the terms of the Hospital Workers (Govt) Award and your fixed term appointment is subject to ongoing performance reviews. You will be accountable to the Hotel Services Supervisor for your day to day work performance.
Your normal hours of duty will be from 7a.m. to 3.30p.m, your base rate of pay will be $794.74 per fortnight (Level 1, Year 1).
As detailed above your period of employment with this hospital will terminate with effect from 8 November 1994.
It is a condition of this Offer of Appointment that you sign and return the enclosed Acceptance Confirmation copy of this letter and provide the following documentation.
*a copy of your birth certificate (or extract)
*a copy of your marriage certificate (if applicable)
*passport/residency status (if applicable)
Please report to the Salaries Office, Administration building to complete the necessary documentation.
Yours faithfully
PETER EASOM
MANAGER
9 September 1994”
Towards the bottom of the letter, the following words appear in handwriting and are signed “J. Ferry”:-
“I accept this offer of employment on the basis that it will not prejudice my claims for permanent employment under the redeployment general order.”
10.On 8 November 1994, Mr Ferry (notwithstanding the expiry of the time referred to in the letter of 9 September 1994) continued to work for the respondent. He was told he could work at the hospital until it closed.
11.On 18 November 1994, Mr Ferry’s employment ceased when on that day he was told that the hospital would close that very day.
Mr Easom swore an affidavit which was received into evidence before the Judicial Registrar. There was no cross examination of Mr Easom. Paragraphs 4, 5 and 7 of that affidavit were in the following terms:-
“4.The Applicant was employed on a series of fixed term contracts. Each successive contract of employment expired on its own terms due to effluxion of time.
5.The final contract of employment was not initially due to expire on a specific date due to uncertainty as to the actual date of closure of the Hospital. However, it was made clear to all parties, including the Applicant, that that final contract of employment was for a fixed term, ending on the actual date of closure of the Hospital.
........
7.From the time I commenced as Manager at the Hospital until the closure of the Hospital I spoke several times with the Applicant regarding his employment. I assured him, on those occasions, of the continuation of his employment until the closure of the Hospital. I also made it clear to the Applicant that he had no ongoing employment following the closure of the Hospital. Whilst the Applicant stated that he understood both of those facts, he reaffirmed his dispute with the Hospital regarding the matter.”
TERMINATION AT THE INITIATIVE OF THE EMPLOYER
Paragraph 4 of Mr Easom’s affidavit is not a statement of evidence but rather an opinion of law. It was an opinion of law which found favour with the Judicial Registrar. With the greatest respect to the Judicial Registrar, it is a wrong view of the law when one properly considers the facts in this matter.
In my opinion, the correct analysis is that the applicant was employed continuously by the respondent from 28 March 1994 until 18 November 1994. It is common ground that at the time he was employed by the respondent his employment was subject to the Hospital Workers (Government) Award 1966 (“the State award”), being an award of the Western Australian Industrial Relations Commission. The State award required two weeks notice of a termination of employment. Even assuming that the applicant had a single, stand alone, contract of employment on 8 November until the close of the hospital, the State award provision as to notice was incapable of being applied if the employment did not extend to 22 November 1994. So much was conceded by Mr Hooker. In these circumstances, it is obvious that the applicant’s employment was terminated by the respondent and did not occur by the effluxion of time and that such termination contravened the State award provision as to notice.
The applicant was dismissed without notice. Although he had an expectation that he would no longer be employed at the hospital when it closed, he wished to be considered for redeployment. Such was his legal right under an award of the Australian Industrial Relations Commission made by His Honour Riordan SDP on 3 November 1994, entitled “Western Australian Government/Australian Liquor, Hospitality and Miscellaneous Workers Union (ALHMWU) Redeployment, Retraining and Redundancy (Interim) Award, 1994 (“the RRR award”).
Despite submissions by the respondent to the contrary, it is plain that the RRR award applied to the applicant. Schedule A to the RRR award sets out a list of categories of employees who are excluded from its provisions. I received no submissions to the effect that the applicant fell within those exclusions for the good reason that any such submissions would have been untenable.
Clause 6 of the RRR award provides that:-
“6 - REDUNDANCY
An employee shall not be made redundant by the employer other than in accordance with clause 7 - Redeployment and Retraining of this Award.”
Clauses 7, 8 and 9 of the RRR award provide as follows:
“7 - REDEPLOYMENT AND RETRAINING
(1) Suitable Alternative Employment: Subject to this clause, each employee whose position is redundant shall, subject to subclause (2)(c) of this clause, be transferred to suitable alternative employment either within his/her Department/Authority or with another Government employer.
Suitable alternative employment shall be defined as that which provides the employee with a position which -
(a)is a permanent position with a Government employer;
(b)has a wage or salary as close as possible to that of the employee’s existing position; and
(c) does not require the employee to change his/her place of residence in order to take up the position, and has regard to -
(i)the relevance of the duties and responsibilities, to the qualifications and experience of the employee and the competence of the employee; and
(ii)the ordinary hours of duty being in general no less than those worked by the employee in his/her original position.
Alternative employment or training
(2) (a) The suitability of alternative employment or training shall be determined by the Director of the Office of Mobility after consultation with the employer, employee and union concerned in accordance with subclause (1) of this clause and having regard for the particular circumstances of each employee.
Any dispute between the parties over whether a position falls within the definition of suitable alternative employment as prescribed by subclause (1) of this clause, may be referred to the Australian Industrial Relations Commission by any party to the dispute.
(b) Where suitable alternative employment is unable to be identified for an employee, the employee may elect within three months from the date the position becomes redundant to transfer to a position outside that defined as suitable or leave the services of the employer.
An employee who elects -
(i) to leave the service of an employer shall be paid the severance and other payments prescribed by clause 9 - Selective Voluntary Severance or Early Retirement of this Award;
(ii) to transfer to a position under the terms of this clause shall be entitled to the provisions of clause (8) - Income Maintenance of this Award.
(c) Where suitable alternative employment is unable to be identified for an employee, and the employee is unwilling to undergo training or retraining or to accept a position outside that defined as suitable, the employer may initiate appropriate disciplinary proceedings against the employee. An employee terminated under this process shall be entitled to the severance and other payments prescribed by clause 9. - Selective Voluntary Severance or Early Retirement of this Award.
Annual leave and long service leave
(3) Annual and long service leave accrued prior to the date of redeployment shall be calculated in accordance with the relevant award or agreement and transferred to and credited by the new employer.
Sick leave
(4) Unused sick leave accrued prior to the date of redeployment shall be transferred to and credited by the new employer.
Leave and assistance to seek alternative employment
(5) (a) The employer shall facilitate redeployment by granting employees to be redeployed reasonable leave to attend interviews and career counselling without loss of pay.
(b) Where a prospective employer does not meet the cost of travel to an employment interview, the cost of reasonable travel and incidental expenses including if necessary over-night accommodation associated with the interview shall be borne by the employer.
Trial period in alternative employment
(6) (a) An employee shall be granted a trial period of six months in any alternative employment during or at the completion of which the employee may elect to resign if that employment is not suitable, in which case the employee shall receive the entitlements provided by clause 9 - Selective Voluntary Severance or Early Retirement of this Award.
This entitlement is only available to employees who fall within paragraph (b) of subclause (2) of clause 7 - Redeployment and Retraining of this Award.
(b) By agreement between the employer and employee, leave without pay may be approved with the consent of the Director of the Office of Mobility where it is sought by a redeployee as a means of exploring career options outside the public sector.
This period of leave without pay will not count as service for any reason. However, the employee’s service shall be deemed continuous and the employee retains the right to accept the offer of severance in accordance with clause 9 - Selective Voluntary Severance or Early Retirement of this Award, prior to the completion of the period of leave without pay.
8 - INCOME MAINTENANCE
(1) Classification Maintenance: An employee placed in a new classification which carries a lower rate than the former classification, shall be paid a rate equivalent to the former classification for a total period of twelve (12) months from the date of transfer. Any adjustments or increments which would have occurred or are made to the former classification rate within the twelve month period shall be applied and paid to the employee.
Progression through the increments will be subject to the normal tests applied under the employee’s award classification.
Wage and salary maintenance
(2) (a) Where, after a period of twelve (12) months an employee remains employed on a classification carrying a lower rate than the rate of their former classification, that employee shall continue to be paid the rate applicable to the former classification at the twelve (12) months’ anniversary date and such rate shall continue to be paid until the rate applicable to the employee’s current classification exceeds that rate.
(b) For the purposes of subclause (1) of this clause and paragraph (a) of this subclause the total remuneration shall:
(i)exclude all allowances which represent:
(aa) an amount paid for overtime or as a bonus, or as an allowance instead of overtime;
(bb) except as provided in placitum (ii) of this paragraph, a relieving allowance;
(cc) an allowance for travelling, subsistence or other expenses;
(dd) an amount paid for rent or as a residence, housing or quarters allowance;
(ee) a climatic allowance or allowances for equipment or, a disability associated with the particular job e.g. site allowance;
(ff) an amount paid as compensation in lieu of the opportunity for private practice.
(ii)include allowances which represent:
(aa) a relieving allowance that has been paid continuously for twelve (12) months;
(bb) a shift allowance which is paid on a regular basis and would continue to be paid during periods of annual leave.
(c) Where an employee elects to undertake training or retraining within a period of six (6) months from the date of being nominated as redundant, the employee shall continue to receive their former classification rate for the period of training or retraining, provided that period does not exceed twelve (12) months. The period of training or retraining shall not be counted in determining the duration of the employee’s entitlements under subclause (1) of this clause and paragraph (a) of subclause (2) of this clause.
(d) For tally or piece workers, the level of income at the date of redeployment referred to in subclause (1) of this clause shall be at the average weekly income, including all allowances and loadings of a permanent nature, for the total number of weeks worked over the preceding twelve (12) months or part thereof.
9 - SELECTIVE VOLUNTARY SEVERANCE OR EARLY RETIREMENT
Selective voluntary severance or early retirement
(1) (a) Each employee identified as being surplus to the employer’s requirements and who cannot be found suitable alternative employment and who elects to resign shall be entitled to the benefits of this clause.
(b) Employees electing to terminate their services in accordance with subclause (6) of clause 7 - Redeployment and Retraining of this Award shall be entitled to the benefits of this clause.
(c) Where an employee identified as surplus to requirements is able to carry out the duties and responsibilities in an equivalent manner to an employee not identified as surplus, the latter may, with the approval of the employer, elect to resign in place of the former, in which case the benefits of this clause shall apply to that employee.
Any dispute as to whether an employee not identified as surplus to requirements is able to carry out the duties and responsibilities in an equivalent manner to an employee identified as being surplus to requirements shall be determined by the Australian Industrial Relations Commission.
(2) Severance Pay: Each employee referred to in subclause (1) of this clause shall receive a severance payment from the employer in accordance with the following formula:
Two weeks pay for each completed year of continuous service provided that the maximum entitlement shall be 45 weeks salary.
Continuous service shall have the same meaning as that prescribed in the State Government Wages Employees - Long Service Leave Conditions. (66 WAIG 319)
Payment will be at the rate of pay prescribed in subclause (1) of clause 8 - Income Maintenance of this Award.
Payment for tally or piece workers will be based on the average weekly rate received for each week worked within the previous twelve (12) months.
(3) Payment for Leave Entitlements: In addition to the severance payments prescribed by this clause, employees shall also receive:
(a) pro-rata annual leave calculated in accordance with the relevant award or industrial agreement at the rate of income as provided in subclause (1) of clause 8 - Income Maintenance of this Award.
(b) Pro-rata long service leave calculated on each completed twelve (12) months of service at a rate of income as provided in subclause (1) of clause 8 - Income Maintenance of this Award.”
None of these provisions were applied to the applicant notwithstanding his reservations in handwriting on the 9 September 1994 letter and his non-exclusion from the terms of the RRR award. I have no doubt that the applicant was terminated at the initiative of the employer and that such termination occurred without regard to the applicant’s award rights i.e. his State award rights as to notice of termination and his Federal award rights as to redundancy and redeployment. I find that the Judicial Registrar wrongly declined jurisdiction in the matter.
VALID REASON
Having found that the Court has jurisdiction to entertain the application, I must now consider whether the respondent had a valid reason for terminating the employment of the applicant.
The respondent, on the assumption that jurisdiction existed, contended that the employment was terminated for a valid reason. The valid reason was said to be the closure of the hospital. I do not accept that submission. The respondent operated at the time of the termination, and still operates other hospitals. The RRR award applied across the public sector and not only to hospitals conducted by the respondent. It applies equally, at least to those conducted by boards of management within the public sector. To terminate an employee in breach of the employer’s obligations under State and Federal awards is not to terminate an employee’s employment for a valid reason.
The respondent has failed to discharge his onus under s170EDA to show that the termination was for a valid reason. I do not accept Mr Hooker’s submission that whilst in fact strictly Mr Ferry may have been made redundant that it was not a redundancy “in a legal sense”. That submission was made no doubt so as not to concede the relevance of the RRR award. It is a submission devoid of substance. The fact is that Mr Ferry had no work to do at the hospital and no one was employed to do the job that he had been doing there. See Quality Bakers v Goulding WIR 142/94, 23 June 1995, Beazley J, as yet unreported, at 13-16. He was plainly redundant in fact and in law and the RRR award should have been applied to him. The operational requirements of the respondent include sites other than the Heathcote Hospital. In circumstances where the RRR award compelled the respondent to apply its terms to the applicant, the decision to terminate the applicant cannot be justified on the basis of the particular operational requirements of the respondent at Heathcote Hospital in Applecross. I find that the termination of the applicant’s employment was in breach of s170 DE(1) of the Act.
In the alternative, if on the assumption that s170DE(1) can be read as being applicable to the operational requirements of the respondent at the Applecross site and if my above analysis is in error, I nonetheless would find that such termination was harsh, unjust or unreasonable having regard to it being made in breach of award provisions, both State and Federal, binding the respondent in respect of the applicant’s employment. On either view it is clear that s170DE has been contravened in this case.
REMEDY
Having found a contravention of s170EE of the Act I now consider whether reinstatement of the applicant is impracticable. No cogent submissions were put to me as to the impracticability of reinstatement. It was put by Mr Hooker that to reinstate the applicant would be to “manufactur(e) a further contract”. These submissions are not apposite to the question of the impracticability of reinstatement, they rather show a mind-set of non-acceptance of the possibility that the Judicial Registrar’s views on jurisdiction may be wrong. The respondent is a large employer who employs many ward assistants/orderlies in various hospitals in metropolitan Perth and country Western Australia. I see no basis for finding that the applicant’s reinstatement would be impracticable.
In the circumstances, I will order pursuant to s170EE(1)(a)(ii) of the Act that the applicant be appointed to another position with the respondent on terms and conditions no less favourable than those on which the employee was employed immediately before the termination. These conditions would include the State and RRR awards being applicable to such employment.
I will also order, pursuant to s170EE(1)(b)(i) of the Act, that the period from 18 November 1994 to the date of the applicant’s reinstatement be treated as continuous for all purposes of the applicant’s employment on the assumption that he would have received his gross average earnings of $1,013 per fortnight.
Further, pursuant to s170EE(1)(b)(ii), I will order that the respondent pay to the applicant the remuneration which he has lost because of the termination. The applicant has not worked since his termination. As Northrop J said in Johns v Gunns Limited TI 148R of 1994, 18 May 1995, as yet unreported (“Johns”) at 32(.1):-
“The policy of the present legislation is to give protection and relief to employees who have been terminated for no valid reason. Where reinstatement is practical, as here, the employee should be reimbursed any wages lost.”
No submissions were put to me by Mr Hooker that I should exercise my discretion to refuse to order any remuneration lost. See Klingenberg v I.R. Cootes Pty Ltd, VI 2421R of 1994, 24 August 1995, Marshall J, as yet unreported, at 6-9 (“Klingenberg”). It is highly unlikely that it would have been open to Mr Hooker to so submit having regard to the absence of exceptional circumstances.
The fact that the applicant has not obtained work since his dismissal was not developed in evidence or submissions other than the Court being informed by Mr Herron to the effect that the applicant is currently a student. In any event, there is no obligation on an employee dismissed for no valid reason to mitigate his or her losses. See Australasian Meat Industry Employees’ Union v Sunland Enterprises Pty Ltd (trading as Sunland Wholesale Meats) (1988) 81 ALR 213, 222 (lines 36-37), per Gray J, in the similar context of the predecessor to s334(7) of the Act.
In the circumstances I will order that the respondent pay to the applicant a sum representing lost remuneration from the date of termination until the date of his reinstatement. The calculation of such sum will be based upon the figure of $1,013 gross per fortnight referred to above.
Having regard to the decisions in Johns and Klingenberg at 33 and 12 respectively, it is appropriate that taxation be deducted at the appropriate PAYE rate from the amount referred to above.
The actual orders of the Court will be as follows:
1.The Order of the Court constituted by Judicial Registrar Ryan made on 26 April 1995 be set aside and in lieu thereof the following orders be made.
2.It is declared that the termination of the employment of the applicant contravened s170DE Industrial Relations Act 1988.
3.The respondent appoint John Ferry to another position with the respondent on terms and conditions no less favourable than those on which John Ferry was employed immediately before the termination of his employment.
4.The employment of John Ferry is deemed to have been continued for all purposes from 18 November 1994 to the date the final order is made in this matter.
5.The matter is adjourned to 9.30 a.m. (Western Standard Time) on 25 September 1995 to enable the parties to calculate in accordance with the principles set out in the reasons for judgment the amount of remuneration lost by the applicant because of the termination and specifically the relevant net sum having regard to the deduction of PAYE taxation at the appropriate rate.
NOTE:If agreement is reached a consent order can be made pursuant to Order 35 rule 10.
I certify that this and the preceding 14 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.
Associate:
Date: 25 August 1995
Counsel for the Applicant: Mr R Hooker
Solicitor for the Applicant: Crown Solicitors Office
Counsel for the Respondent: Mr M E Herron
Solicitor for the Respondent: Gibson & Gibson
Date of hearing: 11 August 1995
Date of judgment: 25 August 1995
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