Moran v St George Bank Limited
[1996] IRCA 359
•02 August 1996
DECISION NO: 359/96
CATCHWORDS
INDUSTRIAL LAW - UNLAWFUL TERMINATION - whether resignation or termination at the initiative of the employer - whether notice of termination was in writing - no valid reason - termination harsh unjust and unreasonable - reinstatement
Industrial Relations Act 1988, s 170 EA, s 170 DE, s 170 DC, s 170 EE
Regulation 30 B(1)
John Neale Nelson v Scholle Industries, Industrial Relations Court of Australia, unreported, 17 October 1995, 588/95,von Doussa J
Mohazab v Dick Smith 62 IR 200
Abbott-Etherington v Houghton Motors (1995) 63 IR 394
Fischer v Commonwealth (1995) 63 IR 401
Anne Rheinberger v Huxley Marketing Pty Ltd, unreported , 20 February 1996 Industrial Relations Court of Australia, NI2064R/95, Moore J,
CATHERINE MORAN v ST GEORGE BANK LIMITED
Before: Tomlison JR
Place : Sydney
Date: 2 August 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
Matter No NI96/1288
BETWEEN
CATHERINE MORAN
Applicant
AND
ST GEORGE BANK LIMITED
Respondent
MINUTES OF ORDER
2 August 1996 Tomlinson JR
The Court Orders that:
The respondent reinstate the applicant to her former position
within 28 days of to-day’s date.
The respondent is to pay to the applicant all moneys she would have received by way of salary had her employment not been terminated.
Note: Settlement and Entry of Orders is dealt with in Order 36 of the Industrial Relations
Court Rules.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
Matter NI96/1288
BETWEEN
CATHERINE MORAN
Applicant
AND
ST GEORGE BANK LIMITED
Respondent
2 August 1996 Tomlinson JR
REASONS FOR DECISION
By application dated 11 January 1995 the applicant Catherine Moran sought reinstatement and compensation under the Industrial Relations Act 1988 (Cth) (“the Act)”as a result of allegedly an unlawful termination by her former St George Bank Limited. At the commencement of the hearing the respondent argued the application was out of time as the employer had terminated the employment in writing on 13 November 1995 and secondly the applicant had resigned; accordingly the Court lacked jurisdiction to hear the matter. Marked as exhibit in the proceedings was the form in question . The applicant argued to the contrary - that the notice was provided at the initiative of the employer as when the resignation form was presented to her by the respondent it was blank and she supplied her name, her address, the date she last worked, and her signature. The respondent thereafter completed the space indicating the reason for her leaving, the applicant’s employee number, the relevant department, its phone number, the signature of the manager and the date. It was ruled that within the meaning of the section of the Act. Further, the applicant relied on the findings of von Doussa J in Nelson v Scholle Industries (unreported) of 17 October 1995 where it was stated, in reference to a notice of termination supplied by the employer:
“In my view, the document came into the possession of the
applicant, although only briefly. The document was in writing,
it stated unequivocally that the employment was being
terminated and it stated the date of the termination. Moreover
it stated the reason for the termination...the document being
placed in the hands of the applicant achieved the legislative
intention. It put in his hands a statement in writing giving
unequivocal advice that his employment had beenterminated.”
The Court ruled on the basis of Nelson’s case that the notice did not comply with the legislation, and after hearing evidence from the applicant on the matter, that it could not be said the termination was a resignation.
The applicant was employed by the respondent a foreign exchange dealer in its treasury section and told the Court she had commenced work on 31 July 1995. Exhibit 1 was the applicant’s resume showing the applicant to be an experienced money market operator with a history of employment in the field similar to that engaged in by the respondent. On 14 September 1995 the applicant was appointed as a permanent staff member, and exhibit 2 was a letter dated 20 September 1995 offering the applicant the position of FX (foreign exchange) Settlements Supervisor. That letter stated inter alia
“Package employees are employed on a trial basis for the first six
months during which time progress is monitored and discussed
at regular intervals. If during this trial period, your progress
and/or performance is considered to be unsatisfactory, your
probationary period may be extended or your employment withSt George will be terminated forthwith.”
It was the understanding that further details had to be refined relating to the offer of employment, and that she was to earn $40,000 per year. The applicant was earning that amount at the time of her dismissal.
The Court heard considerable detail relating to the tasks of the applicant during the course of her employment and the manner in which she entered transactions into the SWIFT - (System World-Wide International Funds Transfer) system on behalf of the respondent. The applicant made between 100 and 150 such entries per day and regularly worked 2 hours per day overtime in order to complete these tasks. As a package employee the applicant received no overtime. The Court heard that since the termination of the applicant there are now two people doing what was apparently the job of the applicant. The applicant had had previous experience in the SWIFT area, and she told the Court she would receive instructions from various sources within the respondent requesting she transfer various amounts of money to a variety of destinations all over the world. One of the sources from which received her instructions was from the various branches of the respondent. In these cases the applicant would receive by way of facsimile transmission a completed form known as “MT100” which had been completed the branch, signed by the customer, and then checked and verified in the branch. It was the job of the applicant to imprint the date, the currency and the amount of the transaction into the records of the respondent so that the funds the subject of the transaction could be released. Prior to the applicant receiving her instructions to release the money, the Court heard that an operator in the treasury department had already input details of the transaction into the respondent’s system. After that, the applicant received a copy of the MT100 and made entries of her own. If the entries the applicant did not match the information already inputted into the system, the computer would reject the applicant’s attempts to enter the information, and so an inquiry would commence on the basis that some of the information relating to the transaction was incorrect. The fact that the applicant had to re-enter the information was seen as a check that the information was correct and that the transaction should go ahead. Such transactions as those performed by the applicant usually take 48 hours to complete, so the money is often received 2 or so days after the transferor completes the necessary instructions. The right hand side of the form was headed “Bank Use Only” and the left hand side had no such heading but it was generally conceded that that side was the sided completed by the customer, or the transferor of the money, that in effect provided instructions for the bank upon which to act. The Court was told that after the applicant had released the money into the SWIFT system, it was the job of the reconciliations department of the respondent to perform a reconciliation as soon as practicable thereafter, so that the records would balance. The right hand side of the MT100, the side headed “Bank Use Only”, was always completed in the originating branch by the respondent’s employees.
Exhibit 3 was an MT100 from received by the applicant from one of the respondent’s branches authorising the applicant to release certain moneys to a bank in America dated 17 October 1995. The form was completed in every respect. The applicant looked at the top right hand corner of the form as she was trained to do and saw the figures written in box 32A providing her with the three sources of information she needed to enter the transaction. The value date was noted as being 19 October 1995, the Currency was noted as being US, and the amount in figures was noted as being “822507.” The applicant completed the entry into the SWIFT system in accordance with the information contained in box 32A and her computer screen told her that that information accorded with the information already in the system - in other words the inputter had previously entered identical information. At the time of entering exhibit 3 the applicant was processing some 50 other entries into the SWIFT system. The applicant told the Court that in essence her function as a FX Supervisor was to check what the input operator had previously entered. The computer accepted the entry of the applicant and the funds were accordingly transferred. The Court was provided with a photocopy of the particular form as the original apparently was in the USA and the subject of litigation. The Court heard that the Chase Manhattan Bank received the money indicated by exhibit 3 on 19 October 1995.
On 24 October 1995 the applicant told the Court it was drawn to her attention that there had been an error and that $822,507.00 had been transferred instead of $8,225.07. In cross examination the applicant agreed the decimal point that should have appeared on the right hand side of the document exhibit 3 was unclear, and that the amount was not able to be properly interpreted. The Court was told very shortly after the money was transferred to the beneficiary in America it was withdrawn and that the respondent had had little success in recovery proceedings. The applicant immediately told her supervisor Ms Elaine Hayter who instructed her to send a fax to the Chase Manhattan Bank over the next week and also tried to contact the ultimate recipient bank - the Huntington Bank of Kenton County in Kentucky. In cross examination the applicant denied that at that time she offered her resignation to Ms Hayter. The Huntington Bank in Kentucky did not respond to attempts by the applicant to recall the funds. The Court heard that errors in international banking for a variety of reasons is a troublesome feature of the industry. It was the evidence of the applicant that on Friday 10 November the superior to Ms Hayter - Ms Susan Bennett - telephoned her and asked if she was “OK”. The applicant told the Court that at that time she told Ms Bennett about the overpayment, and that she was really worried about it. According to the applicant that was the first time Ms Bennett had heard about the problem and said words to the effect “Don’t worry - you won’t lose your job - the most you will get is a written warning”. In cross examination the applicant stated she did not recall asking Ms Bennett if she would lose her job over the incident. The applicant said that at that time she also advised Ms Bennett the file concerning the overpayment was with Ms Hayter and that she was away ill on that day.
Over the week-end of 11 and 12 November 1995 the applicant told the Court she was very worried about the matter and that first thing on Monday 13 November 1995 she visited Ms Bennett who was crying and visibly upset about the matter. The applicant was advised that the legal department of the respondent had been advised of the problem and that management had also been informed of the problem. According to the applicant Ms Bennett said words to the effect “they want to get rid 3 people - you might lose your job - I might lose my job as well”. Reference was made to the fact that Ms Hayter could contemplate legal proceedings against the respondent should she lose her job. The applicant told the Court she felt that her job was very much in jeopardy.
At 10.30 am the applicant attended a meeting with Paul Smith the manager of reconciliations, Simon Barker the executive manager of the treasury section the supervisor Ms Sue Bennett. The applicant told the Court Mr Barker showed the applicant exhibit 3 and said words to the effect “how could you manage to do this” and that reference was made to another error involving a financial institution known as Bain Hogg. Those moneys it seems were recovered by the respondent almost immediately. During that interview the applicant said Ms Bennett said that she “did not want to lose” the applicant and that she “wanted to speak to somebody.” The applicant assumed that was a reference to the human resources department. In cross examination the applicant stated she did not remember offering at that point to resign.
It was the evidence of the applicant that a second meeting was held at 12.30, involving the same people, and that at that time Ms Bennett said that “outside people had been spoken to” and Mr Barker said words to the effect “what are you going to do” to which the applicant responded “I’ll leave”. In cross -examination the applicant denied saying at that point “Good - I’ve been worried sick about it.” In her evidence in chief the applicant then said that Ms Bennett said words to the effect that “she thought that would be best.” The applicant told the Court she was of the view that the words of Mr Barker in reality meant “if you do not resign we will dismiss you” and so that is why she acted as she did.
The applicant asked what would then appear on her resume, and Ms Bennett said words to the effect “we will say it was a clash of personalities” to which the applicant said she protested, and said that she had always got on well with her fellow employees. Ms Bennett said that it could be stated that the applicant only had been a temporary employee - and that she would give the applicant a good reference. The applicant said she was then asked to go to the office of Ms Bennett to sign an employee resignation form, which she did. The applicant left the employee at lunch time on 13 November 1995 and was subsequently sent 4 weeks pay. The applicant had only had periodic employment since her termination, and not nearly at the rate at which she was paid by the respondent. The Court heard evidence that the employment agency Meridian had been told of the problem by Ms Bennett after the applicant had been terminated and at that time was told that “most of the CBD know about this.” The Court heard of a television interview given by the applicant discussing the matter in January of 1996.
On behalf of the applicant the Court heard from Ms Susan Bennett, the operations manager of the respondent, responsible for Ms Hayter who in turn was responsible for the applicant. In cross examination the witness agreed that a large part of the preparation of the MT100 forms was manual and that the system had now been changed. Ms Bennett gave evidence of a Nostro system that was supposed to be looked at daily in order that errors in the SWIFT system might be detected. It was the job of Mr Paul Smith, the head of the reconciliation department, to monitor the Nostro system. The Court heard that at some stage Ms Bennett gave Mr Smith a warning about his duties with regard to performing regular checks on the SWIFT system and that no meeting was held by Ms Bennet with Mr Smith from 20 October 1995 until 13 November 1995 regarding a follow up check of the position. Ms Bennett stated there were no written guidelines as to the course of action to be followed by an employee who found herself or himself in the position the applicant was in.
Ms Bennett said that early in November she was advised of the problem by Ms Julie Reader the foreign exchange development officer of the respondent. The witness stated she then visited the applicant and was advised Ms Hayter had the file. A discussion then took place between the applicant and Ms Bennett during which allegedly the applicant asked if she was going to lose her job and the answer was “I don’t know.” Over the week-end of 11 and 12 November 1995 it was the evidence of the witness that she reviewed the file with Mr Barker. In cross examination Ms Bennett said she spoke with Mr Barker over the week-end in general terms concerning the ability of the respondent to retrieve the funds and that with regard to the future of the applicant that “things were left up in the air to see how things were going to be worked out.” The witness said however she assumed that senior management, Mf Greg Bartlett and Mr Greg Kenny may make a decision to dismiss the applicant.
It was the evidence of Ms Bennett that on Monday morning 13 November 1995 she spoke to the applicant who stated to her that she felt caught in the middle of a reconciliation problem which was not her fault. In cross examination the witness agreed that at that time she was most upset and in fact could have been crying. Further, the witness denied the statement she allegedly made that 3 people could lose their jobs. In cross examination Ms Bennett stated that Mr Barker “could have” said the words to the applicant “how did you manage to do that?” and further Ms Bennett told the Court that she did not hear the applicant say at that first meeting that on some days she handles as much as $300 million. Ms Bennett agreed that at the first meeting she and Mr Barker were of the view that the applicant could lose her job.
Between the first and the second meeting it was the evidence of Ms Bennett that a general discussion took place between Mr Barker and herself and the three situations of the applicant, Ms Smith and Ms Hayter were discussed. It was the evidence of Ms Bennett that at that meeting and over the previous week end it had it was agreed that Ms Hayter had to go unless she had a good explanation. It was the evidence of the witness that the respondent did not approach the employment of the applicant in the same way.
At the second meeting that took place on 13 November 1995. In cross examination Ms Bennett told the Court that she did not know why the second meeting with the applicant took place. Ms Bennett told the Court the applicant said “should I resign?” and that she responded “that would be the best option.” In cross examination Ms Bennett agreed that from the previous Friday it was a concern of the applicant’s that she might lose her job. Ms Bennett and the applicant then went to Ms Bennett’s office where exhibit A was signed by the applicant. In response to a direct question concerning the reason for the resignation Ms Bennett told the applicant “she would put something suitable for a resignation.” In cross examination Ms Bennett stated that she knew the reason she inserted in the resignation form was incorrect. The Court learned that the employment of both Mr Smith and Ms Hayter came to an end as a result of the incident and that a staff member had been promoted to the position formerly occupied by the applicant, and that another person had been additionally appointed to help with the work.
On behalf of the respondent the Court heard from Mr Simon Barker, the executive manager of the treasury support services of the respondent. The witness stated that Ms Bennett reported directly to him and that on Friday 10 November 1995 he first learned of the overpayment to the Manhattan Chase Bank from another employee Ms Julie Reader. A discussion then took place between the witness and Ms Bennett. The witness sought legal advice and was told to contact the beneficiary who had withdrawn the funds. Over the week end Mr Barker said he contacted senior management Mr Kenny and Mr Bartlett. Mr Bartlett said he interviewed the applicant first on Monday 13 November 1995 and at that time he said words to the effect “what about the other errors” and that the applicant said words to the effect “this is really serious, if you want me to resign, I will resign”. Mr Barker said at that point Ms Bennett said “we need to think about that” and that then the applicant left the room.
After the applicant left the room a discussion took place as to how the position could be rectified and whether the offer of the applicant to resign should be accepted. Mr Barker said the applicant came back into the room and said to Ms Bennett words to the effect “Do you think I should resign” and that Ms Bennett had responded “Yes, I think that would be the best thing to do.” Mr Barker said the applicant then said “Good, I am relieved” and further expressed regret at the trouble she had caused.
In cross examination the witness said the SWIFT new automated procedures had been installed in about November of 1995 in an effort to avoid errors. Mr Barker agreed that the person releasing the payment had the potential to make an error and did not agree that daily reconciliation was one way that errors could be avoided. It was the evidence of Mr Barker that the releasing control was a primary control in the operation of transferring funds and that possibly an early reconciliation could have fixed the problem. Mr Barker stated that over the week end he had discussions about the future employment of the applicant and stated that Ms Bennett was of the view that the applicant should not have released the funds as she did. Mr Barker said Ms Bennett did not inform him over that week end that the applicant was in a distressed state about her employment. Mr Barker denied saying “How did you manage to do this” to the applicant on 13 November 1995 and agreed that the applicant said that the applicant said words to the effect that on occasion she handled up to $300 million on on day. In between the two meetings that took place on the Monday 13 Novmber 1995, Mr Barker said he only spoke with Ms Bennett in that if she resigned, the position was discussed as to how the respondent would cope and the position of the probationary employment of the applicant was discussed. Mr Barker said that he and Ms Bennett concluded that it was the best thing to do to allow the applicant to resign.
Mr Barker could not recall if it was his decision or that of Ms Bennet’s to pay to the applicant four weeks pay in lieu of notice and also told the Court the respondent has some 3,000 employees.
CONCLUSION
On behalf of the applicant it was argued the applicant was not a probationary employee. Regulation 30 B of the Federal Industrial Regulations deals with employees excluded from relief under the Act. Section 1(c) of that regulation provides inter alia that probationary employees whose period of probation is (i) determined in advance and (ii) whose period of probation is reasonable are to be excluded from the operation of the relevant parts of the Act. The applicant stated the period of employment, due to the construction of the clause as relied upon by the respondent in the letter offer of employment, could not be determined in advance. In that regard the applicant relied on Ryan v Furneys Stockfeeds, a decision of Beazley J of 28 March 1996, Industrial Relations Court of Australia 1120 of 1996.
The applicant also argued that it was rarely justifiable to have a period of employment for longer that six months, and in the case of Ms Moran, the construction of the probation clause was capable of being extended for longer than six months. The respondent argued that the general rule to the length of a probationary period always has exceptions and submitted the case of Fischer v The Commonwealth (1995) 63 IR 401in support of that argument.
Further the respondent argued the probationary clause as set out in exhibit 1 was silent on various matters, including salary, and therefore could not be relied upon as reflecting the complete agreement. The respondent could rely on the probationary clause as being a contractual term of the contract of employment and as such should be upheld as the only construction one can put on the probationary clause is to add the phrase “by agreement”.
I agree with the submissions of the applicant that the probationary clause in the letter of offer of employment was incapable of precise determination and that accordingly Ms Moran was not a probationary employee within the meaning of the Act and able to bring these proceedings.
The applicant stated that within the meaning of the Act the termination, for a remedy to arise, has to be at the initiative of the employer and the test here is not whether the applicant has been constructively dismissed. In the present case the applicant submitted she had been terminated at the initiative of the respondent and relied Slifka v Sanders Pty Limited, a decision of Moore J, where the test of constructive dismissal was discussed.
In regard to termination at the initiative of the employer, the applicant relied on the Full Court decision of Mohazab v Dick Smith 62 IR 200 where it was stated:
“In these proceedings it is unnecessary and undesirable to
endeavour to formulate an exhaustive description of what
is termination at the initiative of the employer but plainly
an important feature is that the act of the employer results
directly or consequentially in the termination of the
employment and the employment relationship is not voluntarily
left by the employee. That is, had the employer not taken the
action it did, the employee would have remained in theemployment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (“David Graphics”), Industrial Relations Court of Australia,, NI/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation of an employee who resigned because he “felt he had no other option”. His Honour described those circumstances as:-
“...a termination of the employment at the instance [of] the employer rather than of the employee.”
and at 5:-
“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.”
The applicant submitted that the course of conduct of the employer led the applicant to believe that if she did not resign she would be dismissed. It was that course of conduct that led the applicant to sign the resignation form and in that regard the facts were similar in the Dick Smith case. Ms Moran was left on her own for a period of 15 days trying to recover one million dollars - she told Ms Bennett her superior that she was really worried and the evidence showed that on Friday 10 November 1995 the applicant was concerned she would lose her job. At that time Ms Bennett gave her reassurance and the next time the two met - the following Monday morning, Ms Bennett was crying. Ms Howell submitted on behalf of the applicant that the tears of Ms Bennett in those circumstances would have given the applicant cause to think her job was on the line.
On behalf of the respondent it was submitted that the mere investigation of matters by an employer cannot be taken as being an overt act pressuring an employee into resignation. There was no recovery action ever contemplated against the applicant and as such the resignation of the applicant was just that - a resignation. In the case of Anne Rheinberger v Huxley Marketing Pty Ltd, unreported, Industrial Relations Court of Australia, Moore J, 20 February 1996, his Honour upheld an application for review dismissing the application as the judicial registrar was not satisfied ther had been a termination of the applicant’s employment as the expression is used in s 170 EA of the Act. In that case the applicant was employed to sell homes from a display village. The Court heard evidence that the applicant’s brother, a fellow employee, had resigned his employment and that shortly thereafter a conversation took place between the applicant Anne Rheinberger and the respondent which commenced with the respondent saying words to the effect:
“With your relatinonship with [your brother] do you think you will be able to continue working here?”
to which the applicant responded:
“That is not the issue. Whether or not I really want to
stay working here after this is the issue so how about you
tell me what you’re thinking of and I’ll tell you what’s
on my mind.”
The employer then said:
“Can you tell me if you’re happy with what you’ve been
earning lately?”
Applicant:
“Well no, althought I take some responsiblility for that but
I do not think management should also accept responsibility
considering we have not had a display village”
It is my opinion that the attitude and thoughts of Ms Rheinberger were very different from that of Ms Moran - Ms Rheinberger indicated in the first exchange that she had been thinking about her future employment or not with the respondent and from the report I have read there was no indication that that troubled her. I distinguish the case of Ms Moran as first all along she did not want to lose her job and secondly I place weight on her evidence that when she first discussed the matter with Ms Bennett she was told she would not be dismissed. A second distinguishing feature is that the evidence is equivocal that Ms Moran ever accepted that what had occurred was her fault - in fact the evidence goes the other way, in that there was no suggestion of blame for the position the respondent found itself in. Moore J states that:
“The cross-examination of [the respondent] does not establish.
as a matter of fact, that he had in mind the dismissal laws when
calling and conducting the meeting...”
The same cannot be said of the respondent bank in this case and the conduct of the meeting held on 13 November 1995 was not “really neutral on the issue of why it was called” bearing in mind over the week-end Mr Barker and Ms Bennett had discussed the termination of Ms Hayter and were also aware that the applicant was apprehensive of losing her job. And contrary to the finding of Moore J in the Rheinberger case, it is a finding of this Court that the meetings called by the respondent were called with a view to bringing about the termination of the applicant’s employment.
The respondent was fully aware of the thoughts and feelings of the applicant and of the attempts she made to recover the money. It is my view that it was her professional attitude towards her position, her awareness of the situation that caused the applicant to attempt to recover the money. In that regard it seems the applicant shouldered far more responsibility than the scope of her position afforded, and those actions, coupled with the lack of support from Ms Bennett and Mr Barker, led to the applicant, in effect, seeking confirmation and reassurance from her superiors, in reality asking what she should do. No such assurance nor leadership was forthcoming and the applicant accordingly resigned. Both Ms Bennett and Mr Barker told the Court they believed the applicant believed she may be dismissed if she did not resign. . The applicant submitted that Ms Bennett was more than prepared to sign a false statement concerning the reasons for the resignation of the applicant and that fact would have placed added pressure on the applicant. The Court was urged to conclude that Ms Bennett badly wanted the applicant to resign and it was the respondent’s behaviour that was the only reason for the resignation of the applicant. I agree with the submissions on behalf of the applicant and it is a finding of this Court that the course of conduct of the employer, particularly that of Ms Bennett, caused the applicant to resign. If Ms Bennett had not acted as she did, the applicant Ms Moran would not have resigned.
The applicant in submission pointed out the discrepancies in the evidence of Ms Bennett and Mr Barker. The respondent submitted Mr Barker was careful and doing his best in the giving of his evidence in that he was frank, objective ad candid. I place weight on the evidence of the applicant and prefer her version of events to the version provided by the respondent. It is noted that Ms Reader, the employee who first allegedly advised management of the incident, was not called by the respondent.
Accordingly it is a finding of this Court that the termination of the applicant Ms Moran has contravened the Industrial Relations Act in that the termination was at the initiative of the employer for no valid reason and that such termination was harsh unjust and unreasonable.
I turn now to remedy. Section 170 EE of the Act provides the Court may, if it is considered appropriate, make an order requiring the employer to reinstate the employee, and under section 170 EE (1) (b) of the Court makes such an order, the Court may make any order it thinks necessary to maintain the continuity of the employee’s employment. The applicant seeks reinsatement to her former position and an order requiring the respondent to pay to her moneys due to her that she would have received by way of salary had her employment not come to an end. The applicant cited the case of Abbott-Etherington v Houghton Motors (1995) 63 IR 394 at 396, where it was said:
“ In almost every conceivable case where the Court has found that an employer has terminated the employment of an employee in contravention of Div 3 of Pt VIA of the Act it is likely that an employer will form the view that harmony at the workplace will be affected by the return to work of the employe it has terminated. Such a happening, I believe, is unexceptional. in my view it is no more than a view that reinstatement is “inconvenient” or “difficult” if an employer says that harmony may be affected by an employee’s return to work un such circumstances. See Liddell v Lembke (1994) 1 IRCR 466 at 487; 56 IR 447 at 466 per Wilcox CJ and Keely J.
I agree with Gray J in Liddell at 494; 473, at least in so far as his Honour made the following observations:
1. The Court “does not possess an unfetterd discretion to refuse that remedy [of reinstatement] upon any view as to the relevant merits of the parties” (at 493;473).
2. “Its [reinstatement’s] practicability does not depend
on notions of loss of confidence in the employee.”
Accordingly I order the respondent to reinstate the applicant to her former position and secondly under Section 170 EE (1)(b) I order the respondent to pay to the applicant all moneys she would have received had the applicant’s employment not been terminated.
I hereby certify that this and the preceding eighteen (18) pages are a true and correct copy of the Reasons for Decision of Judicial Registrar Tomlinson.
Associate:
Date:
APPEARANCES
Applicant
Counsel Ms Claire Howell
Instructed by Mr E F Abreu
Messrs Yee & Co
Respondent
Counsel Mr P Kite
Instructed by Mr D Cross
Messrs Allen Allen & Hemsley
Dates of hearing 26, 27 July 1996
Date of judgment 2 August 1996
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