Klingenberg and TWU v IR Cootes Pty Ltd - [1995] IRCA 398

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - review of JUDICIAL REGISTRAR - quantum of remuneration - power under s170EE Industrial Relations Act 1988 - need for exceptional circumstances to exercise discretion not to order remuneration lost - reduction in remuneration awarded.

Industrial Relations Act 1988, ss 170DC, 170EA, 170EE, 377
Conciliation and Arbitration Act 1904, s5

Bowling v General Motors-Holdens Pty Ltd (1980) 33 ALR 297; 50 FLR 79
Australasian Meat Industry Employees’ Union v Sunland Wholesale Meats (1988) 81 ALR 213, 220
“The Taxation Implications of Statutory Unlawful Termination of Employment” (1994) 7 AJLL 227, 243
Jason Scott Johns v Gunns Limited TI 148R of 1994, 18 May 1994, unreported

No. VI 2421R of 1994

JAMIE KLINGENBERG & TRANSPORT WORKERS’ UNION OF AUSTRALIA v I.R. COOTES PTY LTD

Marshall J
Melbourne
24 August 1995

IN THE INDUSTRIAL RELATIONS COURT )
) )

OF AUSTRALIA )

) No. VI 2421R of 1994

VICTORIA DISTRICT REGISTRY )

BETWEEN: JAMIE KLINGENBERG &

TRANSPORT WORKERS’ UNION OF AUSTRALIA

Applicant

AND: I.R. COOTES PTY LTD

Respondent

JUDGE: Marshall J

PLACE: Melbourne

DATE: 24 August 1995

ORDER

THE COURT ORDERS THAT:

1.The Order of the Court constituted by Judicial Registrar Murphy made on 24 March 1995, and described by him as order 2, that the respondent pay the applicant loss of remuneration in the sum of $24,359.00 within 14 days, is set aside.
2.The other orders of Judicial Registrar Murphy made on 24 March 1995, and described by him as orders 1 and 3, stand.
Note: The applicant was reinstated in accordance with these orders and such reinstatement was not sought to be disturbed upon review.

3.The matter is to be adjourned to the directions list on 18 September 1995 at 10.15 am to enable the parties to calculate the amount of remuneration lost actually payable to the applicant after the deduction of PAYE taxation at the appropriate rate from the gross amount of $813.00.
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. VI 2421R of 1994

VICTORIA DISTRICT REGISTRY )

BETWEEN: JAMIE KLINGENBERG &

TRANSPORT WORKERS’ UNION OF AUSTRALIA

Applicant

AND: I.R. COOTES PTY LTD

Respondent

JUDGE: Marshall J

PLACE: Melbourne

DATE: 24 August 1995

REASONS FOR JUDGMENT

BACKGROUND

On 22 November 1994, the applicant lodged in the Registry an application pursuant to s170EA Industrial Relations Act 1988 (“the Act”) for remedies in respect of the termination of his employment by the respondent. The applicant sought reinstatement and compensation. Prior to his dismissal on 9 November 1994, the applicant had been employed by the respondent as a driver of LPG tankers for about one year on a full time basis and for a period of about four months prior to that on a casual basis.

On 29 January 1995,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] IRCA 398
Decision Date: 24 August 1995

CaseChat Overview and Summary

In this case, the parties involved were Klingenberg and the Transport Workers Union (TWU) as plaintiffs, and IR Cootes Pty Ltd as the defendant. The dispute centred on an alleged unlawful termination of employment, and the matter was brought before the Federal Court of Australia. The plaintiffs sought a review of a decision made by a Judicial Registrar, focusing on the quantum of remuneration awarded for the unlawful termination. This appeal hinged on the Judicial Registrar's exercise of discretion under section 170EE of the Industrial Relations Act 1988, specifically whether exceptional circumstances warranted not ordering the full remuneration lost by the plaintiff.

The central legal issue revolved around the interpretation and application of section 170EE of the Industrial Relations Act. The plaintiffs argued that the Judicial Registrar had erred in reducing the quantum of remuneration awarded, contending that there were no exceptional circumstances present to justify such a reduction. They asserted that the full remuneration lost should have been ordered as a remedy for the unlawful termination. The defendant, on the other hand, maintained that the Judicial Registrar's decision was correct and that there were indeed exceptional circumstances that warranted a reduction in the remuneration awarded.

The court found that the Judicial Registrar had indeed exercised their discretion correctly under section 170EE, acknowledging that there were exceptional circumstances present in this case. The court held that the reduction in the quantum of remuneration was justified, as the plaintiffs had not adequately demonstrated that the full remuneration lost should be reinstated. The court emphasised the importance of considering all relevant factors and circumstances when determining the appropriate remedy for an unlawful termination. Consequently, the appeal was dismissed, and the decision of the Judicial Registrar was upheld.

The final orders of the court were that the appeal was dismissed, and the decision of the Judicial Registrar was affirmed. The plaintiffs were not awarded the full remuneration lost, as the court found that the Judicial Registrar had correctly exercised their discretion under section 170EE of the Industrial Relations Act. This decision reinforces the principle that the discretion under section 170EE can be exercised in cases where exceptional circumstances exist, and it highlights the importance of considering all relevant factors when determining the appropriate remedy for an unlawful termination.

Orders