Kerber v Ericsson Australia Pty Ltd

[1996] IRCA 185

DECISION NO:  185/96

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - demotion - proceedings discontinued - PRACTICE AND PROCEDURE - COSTS - whether proceedings instituted “without reasonable cause”.

Industrial Relations Act 1988 s347

CASES:Thompson v Hodder (1989) 29 IR 339;

Siagian v Sanel Pty Ltd, (1994) 1 IRCR 1;

Strachan v Liquorland Australia Pty Ltd (Moore J, 6 February 1996 unreported);

Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200;

Slifka v J W Sanders Pty Ltd (North J, 8 June 1995, unreported);

Gunnedah Shire Council v Grout (1996) 134 ALR 156;

Brackenridge v Toyota Motor Corporation Australia Ltd (Beazley J, 19 April 1996, unreported).

HELMET KERBER -v- ERICSSON AUSTRALIA PTY LTD

No. VI 4892 of 1995

Before:  Judicial Registrar Murphy
Place:  Melbourne
Date:  6 May 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 4892 of 1995

B E T W E E N :

HELMET KERBER and
ASSOCIATION OF PROFESSIONAL ENGINEERS
SCIENTISTS & MANAGERS OF AUSTRALIA
Applicants

AND

ERICSSON AUSTRALIA PTY LTD
Respondent

Before:           Judicial Registrar Murphy
Place:              Melbourne
Date:              6 May 1996

EX-TEMPORE REASONS FOR JUDGMENT

The respondent in these proceedings has sought costs after the applicant sought and was granted leave to discontinue the proceedings.  I do not propose to accede to the respondent's application.  In the decision of Thompson v Hodder (1989) 29 IR 339, 341, the Full Federal Court, after reviewing the authorities, indicated “that an applicant who has the benefit of the protection of s347 will only rarely be ordered to pay the costs of a proceeding in exceptional circumstances”.  In this proceeding, which arose out of the demotion of the applicant, the respondent has submitted that decisions commencing with the decision Siagian v Sanel Pty Ltd (1994) 1 IRCR 1 through to the most recent decision of Strachan v Liquorland Australia Pty Ltd (Moore J, 6 February 1996, unreported) are authority for the proposition that this proceeding was doomed at the outset and thus could properly be categorised as having been instituted "without reasonable cause” pursuant to s347(1) of the Act.

In coming to the view that this proceeding should not be categorised in such a fashion so as to activate the discretion contained in s347 it is significant that four of the cases on which the respondent relies in fact were decided after 19 September 1995, the date of application. It is significant that this is beneficial legislation and the operation of the legislation is being worked out through the case law. The three cases of Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200,  Slifka v J W Sanders Pty Ltd (North J, 8 June 1995, unreported) and Gunnedah Shire Council v Grout (1996) 134 ALR 156, have all agitated the question of the scope of the phrase "termination at the initiative of the employer".  The very recent decision of Moore J in Strachan (above) is the first authority of which I am aware that finds explicitly that demotion does not constitute a termination of employment for the purposes of the legislation.  (See also Brackenridge v Toyota Motor Corporation Australia Ltd (Beazley J, 19 April 1996, unreported).

So, looking at the position when these proceedings were instituted I am not satisfied that this case could be characterised as without reasonable cause.  I propose to make no order as to costs.

MINUTES OF ORDERS

THE COURT ORDERS:

1. The respondent’s application for costs is refused.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding one (1) page are a true copy of the reasons for judgment of Judicial Registrar Murphy.

Associate:                   
Dated:  6 May 1996

Representative for the Applicants:     Mr G Considine
Representative for the Applicants:     Mr G Considine

Solicitors for the Respondent:  Corrs Chambers Westgarth
Counsel for the Respondent:             Mr C Blanden

Date of hearing:  6 May 1996
Date of judgment:  6 May 1996