Michael Kent and Civil Aviation Authority of Australia

[1994] IRCA 72

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 1321 of 1994

B E T W E E N:         MICHAEL KENT

AND:               
  CIVIL AVIATION AUTHORITY OF AUSTRALIA

COURT:       J.A. RYAN, Judicial Registrar

PLACE:        MELBOURNE

DATE:  19 SEPTEMBER 1994

EX TEMPORE JUDGMENT

TERMINATION PRIOR TO 30 MARCH 1994

APPLICATION FOR COSTS - SECTION 347

On 10 August Michael Kent applied for remedy for what he claims was an unlawful termination of his employment by the Civil Aviation Authority of Australia on 27 July 1994. 

The respondent filed a conditional notice of appearance on 31 August, and on that day by motion applied for dismissal of the original application on the basis that the termination took place on 15 October 1993, and that there was no jurisdiction available in this court for such a termination.
This is a decision in respect of that motion.

Section 170EA of the Industrial Relations Act 1988 is contained in division 3 of part VIA of the act. Division 3 commenced on 30 March 1994. Section 170EA(1) provides that a person may apply to the court for a remedy in respect of termination of his or her employment. In order to succeed the applicant must establish that there has been a termination for the purposes of section 170EA. His Honour Gray J considered the construction of the word "termination" in the case of the Association of Professional Engineers, Scientists and Managers Australia v Neil Stephenson and Skilled Engineering Pty Limited, 122 ALR 471.

The applicant's dismissal falls within the first of the three categories of cases outlined by Gray J in the APESMA case at page 471. This is a case in which the contract of employment is alleged to have come to an end, whether by expiry of notice or otherwise, prior to 30 March 1994. Gray J concluded that any act of an employer bringing an end of the employment which occurred prior to 30 March 1994 is not a termination for the purposes of section 170EA of the act. No application under section 170EA can be made in respect of an act of an employer which brought the employment to an end prior to 30 March.

Now, that is the basis of what is stated by Gray J and is effectively summarised as follows in paragraph 4 of the head note on page 473.

“Both the requirement that expressions in Div 3 of Pt VIA be given the same meanings as in the Convention and the form of the provisions of Div 3 suggest that “termination” refers to what is done by an employer attempting to bring about the end of the employment.  The legislative intention is to permit applications under the new provisions of the Act if an employer has done some act terminating, or purporting to terminate, the employment, irrespective of whether the act is effective to bring about termination without some further act on the part of the employee.  The “termination” referred to is the act of the employer.  If the act of the employer is effective to terminate the contract of employment, remedies appropriate to that situation can be granted.  If the contract remains on foot, the court still has power to make such orders as it thinks appropriate.  This construction gives the greatest beneficial effect to the legislation and absolves the court from determining difficult questions, such as whether a contract of employment, or some separate relationship of employer and employee, has been brought to an end.  Upon this construction, it is appropriate to view the giving of notice as the “termination” for the purposes of the new provisions of the Act.  The consequence of that construction is that any act of an employer bringing to an end or purporting to bring to an end a contract of employment, which occurred prior to 30 March 1994, is not a “termination” for the purposes of the new provisions of the Act.  No application pursuant to those provisions can be made in respect of such an act.”

Furthermore, the Chief Justice of this court, in Siagian v Sanel Pty Limited 122 ALR 333 at 340 found as follows:

Section 170EE(1) provides that, after considering the merits of a section 170EA application, the court may grant relief unless satisfied that the termination of the employee's employment contravened no provision of the division.

The reference is to  division 3.  The Chief Justice found that as Mr Siagian's employment was terminated on 29 March the court must hold there was no contravention of the division.

In the case here an act of termination of employment took place on 13 October 1993 effective 15 October 1993.  Whatever the circumstances effected before the commencement of the division cannot amount to a contravention of it.  This is so, even if the termination was unlawful for some other reason.  Even if it constituted a breach of contract or a contravention of an award, it was not a contravention of division 3. (Siagian at 340)

Mr Sayers, for the applicant, seeks to distinguish both Siagian and APESMA by arguing that the grievance procedure, provided by way of the award and amended by way of an enterprise agreement, keeps an unrepudiated contract of employment alive until the Grievance Appeal Board breathes fresh life into the contract or deals it a final blow by affirming an earlier decision to terminate.  He argues the effect is that the employment continues until the final determination and that, in this case, the final termination would be that of the Grievance Appeal Board on 27 May 1994 and that that means that there was no termination until 27 May 1994 and that therefore this court has jurisdiction.

He seeks to shore up his argument with the novel proposition that the potential to reinstate keeps the contract alive and kicking, and in effect, prevents an act of termination by the employer as contemplated by and provided within division 3 of part VIA of the Industrial Relations Act 1988. If this were correct, the potential to reinstate vested in this court would also logically keep alive terminated employment which in fact founds the jurisdiction. This cannot be. In any event all of that overlooks the fact that, be it the reasoning of Gray J in APESMA or the Chief Justice in Siagian, the essential act is the act of termination, not the possibility that in some cases and in certain forums review and redress and remedy may exist.

I find that the act of termination took place on 13 October 1993 and was stated to take effect and took effect on 15 October 1993.  In passing I note that I do not find clause 2(m) of attachment E of exhibit EE4 in any way unclear.  It reads:

The lodging of a grievance by an employee in relation to a decision -
does not suspend the decision or any action by the authority in relation to the employee which flows from that decision.

In the circumstances, either following the reasoning of Gray J in the APESMA case or the reasoning of the Chief Justice in the case of Siagian v Sanel, I have to find and I do find that there is no jurisdiction through which this applicant can bring and pursue the claim, and the application for remedy for termination of employment under section 170EA is dismissed.

RECORDED    :    NOT TRANSCRIBED

[4:25pm]

I am not proposing to exercise the discretion vested in the court by section 347 to order costs in this matter. I have noted, in particular, the decision of Wilcox J in Kanan v Australian Postal Telecommunications Union (1992;) 43 IR, 257 at 264. There, the Chief Justice stated:

It seems to me that one way of testing whether a proceeding is instituted without reasonable cause is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.  If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being without reasonable cause but where on the applicant's own version of facts it is clear that the proceeding must fail, it may properly be said that the proceeding lacks reasonable cause.

I propose to say no more than that.  I do not regard this as a case in which it is appropriate to stigmatise the proceeding as being without reasonable cause and I will not exercise the jurisdiction and no costs will be ordered.

I certify that this and the preceding two(2) pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :          
Date                 :          September 30, 1994
Appearances:
Solicitor for the Applicant                 :          J. Sayers of Sayers and Buller
Counsel for the Respondent   :          G. Smith
Solicitor for the Respondent   :          Freehill Hollingdale & Page
Date of Hearing  :          19 September 1994

Judgment  :          19 September 1994