Kerrin, D. v Leighton Contractors Pty Ltd

Re: DAVID KERRIN
And: LEIGHTON CONTRACTORS PTY. LTD.
No. V7 of 1986
Industrial Law
16 IR 40

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.

CATCHWORDS

Industrial Law - information for offence - dismissal of employee member of registered organization - linked to industry wide dismissal of all members to counter industrial campaign by union - whether dismissal "by reason of the circumstance" that employee was union member - discretionary power to order reinstatement - whether good reason not to order reinstatement.

Conciliation and Arbitration Act 1904 ss. 5(1), 5(4), 5(5)

BLF (Cancellation of Registration) Act 1986

BLF (Cancellation of Registration - Consequential Provisions) Act 1986

Acts Interpretation Act s. 15AB

BLF (De-recognition) Act 1985 (Vic.)

Bowling v GMH (1980) 33 ALR 297

Bowling v GMH (1980) 42 FLR 309

Slonim v Fellows (1984) 154 CLR 505

HEARING

MELBOURNE

#DATE 24:7:1986

ORDER

1. Leighton Contractors Pty. Ltd. is convicted of dismissing David Kerrin on 18 February 1986 by reason of the circumstance that he was a member of the Australian Building Construction Employees and Builders Labourers Federation.

2. Leighton Contractors Pty. Ltd. shall pay a penalty of $100.00.

3. The prosecutor, David Kerrin, be reinstated in his old position or in a similar position within seven days from the making of this order.

(Settlement and Entry of Orders is dealt with in Order 36 of the Federal Court Rules)

JUDGE1

David Kerrin (the prosecutor) on 24 February 1986 laid an information under s. 5 of the Conciliation and Arbitration Act 1904 (the Act) alleging that Leighton Contractors Pty. Ltd. (the defendant) on 18 February 1986 dismissed him from its employment by reason of the circumstance that he was a member of the Australian Building Construction Employees and Builders Labourers Federation (the BLF). The defendant pleaded not guilty.

Miss Hickey, of counsel, appeared for the prosecutor and Mr. Les Kaufman, of counsel, for the defendant; they had also appeared for the prosecutor and the defendant respectively in matter V6 of 1986, in which this court delivered judgment on 30 June 1986, convicting Lewis Construction Company Pty. Ltd. of dismissing an employee, Mr. Martin, by reason of the circumstance that he was a member of the BLF. Counsel informed the court that they had had discussions as to the manner in which the hearing of the present matter could be expedited by the use of evidence tendered before the court in V6 of 1986; agreement had been reached between them that there be put in evidence in the present matter, by consent, evidence which fell into two categories. First, a large number of documentary exhibits, which had been received in evidence in V6 of 1986 were tendered, mainly by the defendant; both counsel agreed that those documents were to be "part of the evidence in the case as fully as if they were separately tendered and properly proved by a witness". Second, the defendant tendered the transcript of the whole of the evidence given by Mr. Glasson and by Mr. Wallace in V6 of 1986; that transcript was agreed by both counsel to be an accurate record of that evidence and of all objections to, and rulings upon, the admissibility of parts of that evidence.
The evidence has satisfied me beyond reasonable doubt that
(1) the BLF was on 18 February 1986 an organization of employees registered under the Act.
(2) the defendant was incorporated at all material times.
(3) the prosecutor was employed by the defendant as a builder's labourer at the Flinders Street Carpark site (the site) from early October 1985 until February 1986 but was unable to perform his work and was receiving payments of compensation from about 25 October 1985 until the hearing of this matter.
(4) the prosecutor was a member of the BLF at the time when he gave evidence in this matter and had been since February 1985.
(5) at all material times the defendant believed that the prosecutor was a member of the BLF.
(6) the defendant was at all material times a member of the Master Builders' Association of Victoria (MBAV), an organization of employers registered under the Act.
(7) on 18 February 1986 the prosecutor was given notice of termination of his employment by the defendant.
At or about the same time on 18 February 1986 all other members of the BLF employed by the defendant were dismissed, being given the notice required by the Building Construction Employees and Builders Labourers (Consolidated) Award 1982 (the award). It was common ground that at all material times the defendant - and the employers on sites in the building industry in Victoria generally - required each employee to be a member of an appropriate union and that, by reason of that policy of the employers, which was cryptically called "no ticket no start", all builders' labourers at the site employed by the defendant were members of the BLF.
Section 5(4) of the Act provides that:-

"In any proceedings for an offence against this section, if all the relevant facts and circumstances, other than the reason or intent set out in the charge as being the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that reason or taken with that intent."

The onus placed upon the defendant is an onus to do so upon the balance of probabilities.

Philip Vernon Johnston, the Victorian building manager of the defendant, gave evidence of various campaigns by the BLF in November-December 1985, including those in support of claims for a 3.8% wage rise and for a 35 hour week. It was his decision to dismiss the prosecutor and all other builders labourers employed by the defendant on all sites in Victoria; the defendant had no projects outside Melbourne. There had been a ban on the pouring of concrete at the Barristers' Chambers project in Lonsdale Street which led to the dismissal of 5 or 6 builders' labourers on 14 February 1986. However, he gave evidence that, at the time of the dismissal of the prosecutor on 18 February 1986, there were no bans by the BLF on work at any of the defendant's sites and "industrial relations on that (carpark) site were reasonably good". He was "not aware of any problems that we had with David (Kerrin)", who was not "sacked because of some misbehaviour or misconduct on his part"; the sacking "had to do with (Mr. Johnston's) perception of the industry situation at the time".
No representative of the defendant attended a meeting of the MBAV, held on 12 February 1986, which carried a resolution (the MBAV resolution) that there be an industry wide ultimatum to the BLF; nor did the defendant give an ultimatum to its builders' labourers or implement the MBAV resolution by dismissing its builders' labourers on 14 February 1986.
Mr. Johnston identified three factors or reasons which he considered before he decided to dismiss the builders' labourers, saying that the decision was made after :-

"considering a number of factors, and those factors were, as I recall them the perceived situation with respect to the Victorian government and its code of conduct. Secondly, with respect to the situation

(that) the industry through the MBAV resolution had arrived at, and the element of whether Leighton should choose to be seen to be standing with the rest of the industry or against it. And the third element was the ability of the builders' labourers, in my opinion, to have the matter resolved in a non-industrial sense by virtue of the undertakings to be provided ... to the Conciliation and Arbitration Commission. And essentially for those three reasons it was my decision that we should join the balance of the MBAV members and terminate our labourers."

That evidence may be compared with a passage in his re-examination where, asked why he had dismissed all the builders' labourers, he referred back to the three reasons set out earlier, saying:-

"For the three principal reasons that I think I have outlined before. One involved the situation where, as an industry, in my opinion it was about time that the industry, in terms of the employers, stood together rather than ... fragmented".

In that passage from the re-examination, the different wording of the first of the three reasons (when compared with the second of the three reasons given in evidence-in-chief) may be noted. The evidence in re-examination put a gloss, perhaps unconsciously, upon the original statement of the three reasons.

In my opinion Mr. Johnston's decision was not made because he held the opinion at the time that the industry should stand "together rather than fragmented". The industry in general had already acted by giving an ultimatum on 12 February which expired on 13 February and had dismissed its builders' labourers on 14 February. The defendant in this case did not do so until 18 February (after a rostered day off on 17 February). I accept, instead, Mr. Johnston's evidence-in-chief, quoted earlier, referring to "the element of whether Leighton should choose to be seen to be standing with the rest of the industry". He wished the defendant to be "seen" to be standing with the rest of the industry rather than "against it"; the industry, through the MBAV resolution, had arrived at its decision without any participation in that action by the defendant.
In his evidence-in-chief as to the three reasons for the dismissals (set out in the passage already quoted), Mr. Johnston gave as one reason "the perceived situation with respect to the Victorian Government and its code of conduct". Considerable difficulty was encountered in ascertaining from Mr. Johnston what his evidence was on that matter, and the extent to which his decision was influenced by the fact that, as he expressed it, "we had a telephone call ... from ... the Public Works Department (PWD) who were a major employer or client body" of the defendant; the PWD officer was a Mr. Noonan. In my view that evidence was best summarized by Mr. Johnston in the following passage:

"My evidence is that we were requested by the PWD to terminate the builders labourers from the PWD sites and in the overall context that that was required in order to satisfy the code of conduct requirements on all governmental projects whether they be PWD or otherwise."

In his final address, Mr. Kaufman referred to the part played in Mr. Johnston's decision by the telephone call from Mr. Noonan and said that Mr. Johnston's evidence was:

"... not that he took into account some requirement of the code of conduct, but he took into account the tenor and effect of the code of conduct ... but he (Mr. Johnston) did say that there was some confusion as to what the code of conduct really required at that time."

Certainly there was confusion as to the code of conduct. Mr. Kaufman asked the court:

"... to just look at it as a whole and take into account the tenor of it ... that you had better toe the line or else, you had better behave yourself ... Toe the government line, do not deal with the BLF, do not act outside awards, do not act outside national wage principles, and adhere to formal awards and agreements."

His submission on this aspect was, perhaps, best summarized in the following passage:-

"The code of conduct required that no payment of 3.8 per cent be made unless it was ratified by the Arbitration Commission. Mr. Glasson said that the industry felt it had no other way of defeating the campaign to secure payment of the 3.8 per cent outside the Arbitration Commission and that the action was taken to defeat the campaign, the campaign of unlawful industrial action or industrial action to secure the 3.8 per cent, without the Arbitration Commission varying the award. To have not defeated that campaign would, it is submitted, have led to contractors breaching the code of conduct by the paying (of) the 3.8 per cent outside the auspices of the Arbitration Commission."

However, in answer to questions Mr. Kaufman accepted that the code of conduct did not require or suggest that the defendant should dismiss the prosecutor or its other BLF employees.

Mr. Johnston's evidence as the reasons for the dismissals included the following passage during his cross-examination:-

"Yes and it (the decision to dismiss all builders' labourers) was prompted by the phone call from someone from the Public Works Department?---It was certainly a significant element in the rationale, yes.

It was not prompted by the fact that a decision was taken at an MBAV meeting on the 12th?---Oh, it is a little more difficult to say that there was one cause and effect rather than a number, but that was always significant."

The MBAV meeting to which Mr. Johnston referred had adopted a recommendation advanced by Mr. Glasson. He had been the industrial relations manager of the MBAV for approximately three years and had been its director of industrial relations for several months before giving evidence.

Mr. Glasson's evidence (given in V6 of 1986 and put in evidence in this case as stated earlier) included the following passage in cross-examination:

"Mr. Glasson, you would agree, would you not, that in respect of the labourers who were not engaging in bans and who were terminated on the 14th, the only factor connecting them with the bans was their membership of the BLF?---No. The connecting factor was that they were employed as builders labourers.

And members of the BLF?---That was also - yes, that was a factor."

As to whether the fact that he was a member of the BLF was a reason for the dismissal of the prosecutor, the following passage appears in the cross-examination of Mr. Johnston:-

"Miss Hickey: And because of that, Mr. Johnston, you would agree, would you not, that the only thing connecting Mr. Kerrin with the 3.8 per cent claim and bans in support of that was via his membership of the federation?---Yes, I would.

Yes; and indeed, that was the reason he was sacked?---What was the reason he was sacked?

He was a member of the federation, and that was the only thing that linked him - connected him - with what you say were the bans in support of the 3.8 per cent wage case flow-on?---Yes; if Mr. Kerrin had not been in the BLF he would not have been terminated."

Although Mr. Johnston gave evidence as to "three principal reasons" for the dismissal of the builders' labourers (set out earlier), there is no evidence from the defendant that the fact that the prosecutor was a member of the BLF at the time of his dismissal was not a substantial and operative factor in the defendant's reasons for deciding to dismiss the prosecutor. It may be that no such evidence was given because, as Mr. Johnston said, in the passage last quoted, "if Mr. Kerrin had not been in the BLF he would not have been terminated".
In his final address, Mr. Kaufman relied upon the submissions he had put for the defendant in Martin v Lewis Construction Company Pty. Ltd. (matter V6 of 1986). However on all the evidence I find that one of the substantial and operative reasons for the decision to dismiss the prosecutor was the fact that he was at that time a member of the BLF.
The defendant has failed to satisfy the court, on the balance of probabilities, that in dismissing the prosecutor on 18 February 1986 it was not actuated by the reason alleged in the charge, namely "by reason of the circumstance that the said David Kerrin was a member of" the BLF. The defendant is convicted of the offence charged in the information laid by the prosecutor on 24 February 1986.
The defendant's counsel did not make any submissions as to penalty. In considering that matter I have taken into account the fact that there is no evidence that the defendant has any prior convictions - either under the Act or under other legislation; nor any evidence that it has ever been found by a court to have committed a breach of the award or of any other award made either under the Act or under any other statute.
It may be added that there is no evidence that the defendant - as distinct from the MBAV - ever sought any legal advice as to whether the proposed dismissal would be an offence against s. 5 of the Act or that the defendant was aware that the MBAV had received legal advice on that question from its "in house legal staff".
In all the circumstances disclosed by the evidence, and in the light of the maximum penalty of $400 prescribed by Parliament, in my opinion an appropriate penalty is $100. In fixing a penalty lower than that imposed in Martin v Lewis Construction Company Pty. Ltd. (matter V6 of 1986 - delivered on 30 June, 1986), I have taken into account the facts that (1) the defendant was not represented at the meeting which led to the MBAV resolution on 12 February 1986. (2) Its decision to dismiss the prosecutor was a decision made some days after the dismissals of builders' labourers in the industry generally and was a decision to "join the balance of the MBAV members and terminate our labourers". (3) The decision was only made after the telephone call from Mr. Noonan, of the Public Works Department, referred to earlier.
Section 5(5) of the Act provides:-

"Where an employer has been convicted of an offence against this section the court by which the employer is convicted may order that the employee be reimbursed any wages lost by him and may also direct that the employee be reinstated in his old position or in a similar position."

The prosecutor did not seek any order for reimbursement of wages lost - because he was receiving workers compensation payments throughout the period - but he sought an order that he be reinstated in his old position. The parties were agreed that that application, which can not be granted unless the employer has been convicted, should be heard without waiting for the court to decide whether the defendant should be convicted. The prosecutor had not at any time been offered re-employment by the defendant, although all other builders' labourers have since been re-employed by the defendant.

Both parties referred to the decision of the Full Court in Bowling v General Motors Holdens Ltd. (1980) 33 ALR 297 as enunciating the principles applicable to the exercise of the court's discretion in deciding whether to "direct that the employee be reinstated in his old position or in a similar position". The unanimous judgment of J. B. Sweeney, Evatt and Northrop JJ in that case made it clear that an employer convicted under s. 5 must not benefit from that offence, saying (at 304):

"The policy and purpose of sub-sections (1) and (4) of s 5 is to protect organizations of employees and their representatives from discrimination and victimization by employers. Sub-section (5) gives effect to an essential feature of that policy and purpose of s 5. It is essential that an employer convicted of an offence against the section should not benefit from that offence by ridding itself of an employee by reason of any one or more of the circumstances specified."

The Full Court expressed succinctly in the following passage (at 305) the principle relevant to the exercise of the court's power to direct reinstatement:-

"GMH has been convicted of an offence against s 5 of the Act. The appellant desires to be reinstated in his old position or in a similar position. Prima facie, therefore, the direction should be given. GMH has relied upon a number of reasons why the direction should not be given."

The grounds advanced by GMH in that case for opposing an order for reinstatement included allegations that the employee's actions had been unlawful and were in breach of the award and allegations as to his role in planning and co-ordinating guerilla activities intended to disrupt the employer's production. The Full Court held that those grounds did not constitute good reason for refusing an order for reinstatement, saying (at 306):

"The reasons relied upon by GMH were that the actions of the appellant had been unlawful, were in breach of the award, and that he had played a part in planning and co-ordinating guerilla activities designed to disrupt production. All those reasons in reality go to the question of whether GMH had committed an offence against s 5. They were not sufficient to avoid a conviction being recorded and upon conviction they do not constitute good reason why reinstatement should not be directed. Otherwise, GMH would gain from its actions and the delegate would suffer from the result of discrimination and victimization."

In considering the extent of the principle expressed by the Full Court in that case, it may assist to look at the findings of fact made by the trial judge, which were expressly accepted (at 305) by the Full Court and are reported in (1980) 42 FLR 309 at 328-329:

(at 328) "Mr. Mansfield gave evidence that on 19th July, 1978, he was told by the informant that "if personnel did not pull their heads in they would get the same treatment as had been given to Rosenboom" (in 1976). Mr. Mansfield said that he asked the informant what he meant by that statement and that the informant said that "the people on the afternoon shift invaded Mr. Rosenboom's office to put their points across to him" - Mr. Rosenboom being then the afternoon shift superintendent. ...the evidence by Mr. Mansfield on this aspect was adhered to despite cross-examination at some length and there was nothing in his demeanour to cause me to doubt this part of his evidence.

In addition the informant was not prepared to expressly deny that he had made a statement to that effect."

(at 329) "I accept Mr. Mansfield's evidence on this aspect and find the following facts:

(1) The informant was in the front row of a large group of employees who in 1976 "invaded Mr. Rosenboom's office" - to adopt the words used by the informant as given in Mr. Mansfield's evidence. (2) On 19th July, 1978, the informant threatened similar action in respect of the offices of the personnel officers if they did not change their attitude."

It will be noted that, notwithstanding those findings that the prosecutor was present in the front row of a large group of employees who "invaded Mr. Rosenboom's office" and that he later threatened similar action against personnel officers, the Full Court ordered that he be reinstated.

Mr. Kaufman, on behalf of the defendant, accepted that the proper principles to be applied were those set out by the Full Court in Bowling's case (33 ALR 297) and accordingly that, upon the conviction of the employer, prima facie the court should direct the reinstatement of the employee. However, he submitted that that prima facie position changed "once evidence is led or argument is advanced as to why the prima facie position ought not apply." He said that the court should have regard to the reasons for judgment of Wilson J. (with whose reasons Mason and Deane JJ agreed) in Slonim v Fellows (1984) 154 CLR 505. That case dealt with the question whether a Conciliation and Arbitration Board had jurisdiction under the Industrial Relations Act 1979 (Vic.) (before its amendment in 1983) to determine a claim for reinstatement. Referring to the general powers of the Board under s. 34(1) of that Act, Wilson J said (at 515):

"First, a clear distinction should be drawn between employment of a person and reinstatement of a recently dismissed employee. As the court rightly observed, the power to direct that A employ B is a very drastic one. It is not lightly to be inferred in the absence of compelling language."

Mr. Kaufman expressly refrained from submitting that Slonim v Fellows "in any way cuts down the full authority of Bowling's case" (i.e. the Full Court judgment in 33 ALR 297) and said that the decisions in the two cases are not inconsistent. Later in his address Mr. Kaufman said "it may be that to some extent Slonim v Fellows does in a practical sense cut across Bowling's case". In my opinion the dictum of Wilson J in Slonim v Fellows, read in its context and in the light of the issues in that case, is not an authority requiring a single judge of this court to refuse to follow the principles expressed by the Full Court in Bowling's case.
In support of his submissions as to the question of reinstatement, Mr. Kaufman cited a number of decisions by State Courts and Tribunals, including G. J. Coles & Co. Ltd. v Pietruszka (1983) 4 IR 329. In my opinion those decisions do not support the defendant's submissions in this case. In addition they must be read in the light of the fact that they were given under different legislation. In so far as they contain any statement which is inconsistent with the judgment of the Full Court in Bowling's case, the latter is an authority binding upon me.
Mr. Kaufman advanced a number of submissions as to why the court, in its discretion, should refuse to order the defendant in this case to reinstate the prosecutor. First, he sought to place great reliance upon:

"... what the legislature has done about the Builders Labourers' Federation and its members, and having regard to the policy of the Conciliation and Arbitration Act, the policy and objects of that Act. ... what are the purposes of section 5, and look at what the Victorian Government and the Conciliation and Arbitration Commission have done as well ..."

Mr. Kaufman submitted that:

"... what has happened to the federation and its current status and the current status of its members, not only in the Federal Industrial Relations system but in the State Industrial Relations system, is something that can be taken into account in exercising a discretion."

He relied upon the Builders Labourers' Federation (Cancellation of Registration) Act 1986 (Act number 6 of 1986) which came into operation on 14 April 1986. That Act relevantly provided that the registration of the BLF under the Act "is, by force of this section, cancelled". He asked the court to give consideration to the Minister's second reading speech in respect of the Bill which became that Act. As the necessary foundation under s. 15AB of the Acts Interpretation Act did not exist, the court declined to do so. The defendant also sought to gain some support from the Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986 and Regulations (Statutory Rules No. 59 of 1986) made under it.
It may be added, parenthetically, that in matter V8 of 1986 (Bradford v Prentice Builders Pty. Ltd.), which was heard after the present matter, the court, decided to read the Minister's speech, and also the Minister's second reading speech in relation to the Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986, in an endeavour to understand submissions by Mr. Kaufman as to why the court should give consideration to those speeches, or either of them. Having reconsidered the matter and having read both of those speeches, in my opinion they do not constitute material to which consideration should be given by the court under s. 15AB of the Acts Interpretation Act 1901. It should be added that, in any event, they do not support in any way the submissions advanced by the defendant.
In my opinion none of the provisions of those Commonwealth Acts or Regulations, relied upon by the defendant, give any support to the defendant's submissions as to the question of reinstatement. It should be noted that the legislation passed by the Australian Parliament in 1986 dealt in some detail with the effects of the cancellation of the registration of the BLF and made no reference to the rights of employees under s. 5 of the Act. The legislative policy behind s. 5 of the Act is, of course, relevant but, having regard to the principles in Bowling's case, that policy does not assist the defendant on this question. It should be added that the defendant also sought to rely upon the BLF (De-recognition) Act 1985 of the Victorian Parliament, but in my opinion the defendant gains no support from that legislation.
Second, it was submitted that "an order for reinstatement would be rendered futile because, (as the BLF is no longer a registered organization) there would certainly be nothing under the Conciliation and Arbitration Act that would prevent the employer dismissing Mr. Kerrin immediately he was reinstated". He submitted that the court should not make a futile order. There is no substance in this submission; the court's order will not be rendered futile if, at some future time, after the prosecutor has been reinstated in his employment in accordance with the court's order, the defendant exercises whatever legal rights it may have in such a way as to lawfully dismiss the prosecutor.
Third, it was said that, because of the "no ticket no start" practice operating on building sites, referred to earlier, the defendant would face industrial action on the relevant site if the prosecutor, on being reinstated, refused to join the "appropriate union", the Building Workers' Industrial Union of Australia (BWIU) and it was submitted that that was a reason why reinstatement should not be ordered. The initial difficulty which that submission encounters is that the prosecutor, during his cross-examination, was expressly asked would he "be prepared ... to join the BWIU" and answered "yes". On the evidence I find that no industrial action would be likely to occur on the site in relation to that issue if the prosecutor did in fact join the BWIU - even if he retained his membership of the BLF.
However, the submission fails for a more fundamental reason. Even if it were clear that industrial action on site would be likely to occur in relation to the reinstatement of the prosecutor, pursuant to the court's order, in my opinion it would not be a proper exercise of its discretion for the court, in circumstances where it would otherwise order the reinstatement of the prosecutor, to refrain from making such an order because of the likelihood of any such industrial action.
Fourth, an alternative submission was advanced that, if the court proposed to order reinstatement of the prosecutor, then it should "order reinstatement conditional upon Mr. Kerrin joining an appropriate union". The defendant's counsel, in answer to a question as to whether the court had power to make such a conditional order, said, shortly after putting that alternative submission, that he did "not know whether your Honour has that power" but he later submitted, without citing any authority, that the court had power to do so. Assuming, without deciding, that the court has power to make such an order, in my opinion it would not be a proper exercise of the court's discretion to make such a conditional order in this case.
Fifth, the defendant appeared to place some reliance upon both the Federal and the Victorian code of conduct, on the basis that it is arguable that they "prohibit dealing (with) or employing members of the deregistered BLF". In my opinion neither the Federal nor the Victorian code of conduct prohibits an employer from employing members of the deregistered BLF and neither constitutes a reason for the court to exercise its discretion against ordering the reinstatement of the prosecutor.
In my opinion those five matters do not, either individually or collectively, provide any reason of any significance as to why the court should exercise its discretion against ordering the reinstatement of the prosecutor; more specifically, they do not provide a sufficient reason within the principles applicable by reason of Bowling's case.
Those matters all relate to general considerations as to the exercise of the discretion. Mr. Kaufman also submitted that the prosecutor in the present matter should not be reinstated because of certain matters personal to him. Those matters included the prosecutor's participation in demarcation disputes in breach of site agreements and his participation in the imposition of a "fine" upon an employer. As to those particular matters, he submitted that those were factors which the court should "take into account despite the fact (that) they happened with another employer", saying that they were relevant "when assessing the worthiness of the prosecutor to be reinstated". I accept Miss Hickey's submission that, in exercising its discretion as to reinstatement, the court should not approach the question in the manner in which a potential employer would, or by "assessing (his) worthiness" as suggested by Mr. Kaufman. In my opinion it would not be consonant with the principles in Bowling's case for the court to take into account those matters which occurred at an earlier time whilst the prosecutor was employed by a different employer or give any substantial weight to the other evidence relied on in this submission. None of these matters personal to the prosecutor, in my opinion, constitutes sufficient reason for refusing to order reinstatement of the prosecutor.
Accordingly an order will be made that the prosecutor be reinstated in his old position or in a similar position within seven days from today.

[1986] FCA 330

24 JULY 1986