Neville Fryar v Systems Services Pty Ltd Graeme Simpson v Systems Services Pty Ltd
[1994] IRCA 89
•28 Oct 1994
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. SI 116 of 1994
)
SOUTH AUSTRALIA DISTRICT )
)
REGISTRY )
BETWEEN:
NEVILLE FRYAR
Applicant
AND:
SYSTEMS SERVICES PTY LTD
Respondent
AND IN THE MATTER OF No. SI 117 of 1994
GRAEME SIMPSON
Applicant
AND:
SYSTEMS SERVICES PTY LTD
Respondent
REASONS FOR JUDGMENT
Coram: von Doussa J
Place: Adelaide
Date : 28 October 1994
These two related matters raise similar issues and have been heard together. In both the immediate question is whether under s.170EB of the Industrial Relations Act 1988 ("the Act") this Court must decline to exercise jurisdiction.
Each applicant is a systems programmer who has been employed by the respondent for some years. Following a period of unfruitful discussion about the continuation of their employment, a letter dated 5 April 1994 was written to each of them giving notice of termination. In the case of Mr Fryar his employment is to cease on 23 November 1994, and in the case of Mr Simpson on 13 January 1995. The applicants were informed that the respondent was giving a "lengthy period of notice to give you every opportunity to obtain alternative employment".
On 18 April 1994 each applicant by application under s.170EA of the Act sought declarations that the termination of his employment contravened Division 3 of Part VIA and that the letter of 5 April 1994 was void and of no effect, and claimed compensation, damages and reinstatement. On 9 June 1994 the applications were amended to claim an injunction restraining the respondent from terminating the employment of the applicant.
This Court had power in an appropriate case under s.170EE(2) as it then stood to make orders declaring a termination to have contravened Division 3, for reinstatement and for compensation. The additional remedies by way of declaration and damages sought to invoke the general powers arising under ss.417 and 418 of the Act and the accrued jurisdiction of the Court. Whether the Court has jurisdiction in an application under s.170EA to order an injunction of the kind sought is doubtful: see s.170EH, Dunham v Randwick Imaging Pty Ltd, (1994) 122 ALR 323; Tognolini v Burnett Petroleum Distributors Pty Ltd, (1994) 122 ALR 497, and APESMA and Stephenson v Skilled Engineering Pty Ltd and Others (1994) 122 ALR 471.
By the Industrial Relations Amendment Act (No.2) 1994 (Cth No.97 of 1994) which came into operation on 30 June 1994 extensive amendments were made to Division 3 of Part VIA of the Act, including the substitution of a new s.170EE. Under the amended Act the power of the Court to award remedies of the kinds sought by the applicants, other than the injunction, continue, and for present purposes nothing turns on the fact that the Act has been amended since the issue of the applications.
On the first direction hearing in each matter on 26 April 1994 the respondent contended that the Court must decline jurisdiction pursuant to s.170EB of the Act which reads:
"170EB. The Court must decline to consider or determine an application under section 170EA if satisfied that there is available to the employee by or on whose behalf the application was made an adequate alternative remedy, in respect of the termination, under existing machinery that satisfies the requirements of the Termination of Employment Convention."
The respondent contended that an adequate alternative remedy was available under s.31 of the Industrial Relations Act (SA) 1972. The applicants were not employed under the terms of a Federal Award and it was common ground that they were not excluded from the operation of the South Australian Act for that reason. In fact proceedings had been commenced by each of the applicants in the Industrial Commission of South Australia seeking relief under s.31. Proceedings were also brought under s.170EA in this Court as the applicants' advisers doubted whether the Industrial Commission of South Australia had jurisdiction because by its opening words s.31 provided:
"31.(1)Where an employer dismisses an employee, the employee may, within 21 days after the dismissal takes effect, apply to the Commission for relief under this section."
The doubt was whether this provision permitted the issue and prosecution of proceedings before the South Australian Industrial Commission whilst the applicant was still performing work for the employer. A possible interpretation of the Industrial Relations Act (SA) 1972 was that s.31 conditioned the jurisdiction of the Commission upon the dismissal having taken effect in the sense that the employer and employee relationship had come to an end, and the employee was no longer working for the employer. It was thought that the decision of Commissioner Stevens in Clancy v S A Regonal Media Limited (1991) 58 SAIR 719 supported this interpretation, although on analysis that decision held only that an employee could not bring proceedings under s.31 as it stood prior to an amending Act that came into force on 1 July 1991 because until that date he was still in the employee of the employer. Prior to 1 July 1991 he had not been given effective notice. Commissioner Stevens held, at p.723 that:
"...the dismissal of the applicant did not either occur or take effect on 19 or 25 June 1991 or on any date prior to 1 July 1991.
On the contrary, I find that the dismissal of the applicant did not take effect until on or about 26 July 1991, being the date that he received the letter from the respondent terminating his employment from that date."
The decision is not authority for the proposition that the Commission had no jurisdiction to entertain an application made under s.31 during the period between the giving of notice of dismissal and the employer and employee relationship coming to an end. A strong opinion against that interpretation of s.31 has been expressed, obiter, by Olsson J, with whom Prior and Mullighan JJ agreed in the Full Court of South Australia in Gribbles Pathology (Vic.) Pty Ltd v Judge Allan and Anor (1992) 57 SASR 218 at 222.
The direction hearings were adjourned (more than once) for the parties to consider their position. Whilst they were doing so the Parliament of South Australia enacted the Industrial and Employee Relations Act 1994 which repealed the Industrial Relations Act (SA) 1972 and enacted new provisions dealing with Unfair Dismissal in Chapter 3 Part 6 ("Part 6"). The Industrial and Employee Relations Act came into operation on 8 August 1994.
The respondent maintains its contention that this Court must decline jurisdiction pursuant to s.170EB of the Act but now does so on the ground that the Industrial and Employee Relations Act relevantly provides an adequate alternative remedy. There is agreement between the parties that the question of whether there is available an adequate alternative remedy should be considered as a preliminary matter.
The question whether the statute law of South Australia provides an adequate alternative remedy is to be determined by the Court according to the law at the time when the application under s.170EA is to be considered, not when the application is filed. That this is so is indicated by the language of s.170EB. Jurisdiction must be declined when "there is available" an alternative remedy to the employee on whose behalf "the application was made". This interpretation, as Moore J has pointed out in Grout v Gunnedah Shire Council, Industrial Relations Court, judgment 30 September 1994, at p.51:
"...is also consistent with the purpose of the section which is to deny an applicant the opportunity of pursuing an application under the Act if an application to the same effect can be pursued under, ordinarily, other legislative schemes which would generally, though not exclusively, arise under state industrial laws. Thus, it must be capable of being pursued at the time the Court denies, by operation of s170EB, the applicant the opportunity of further pursuing the application under s170EA."
Counsel for the applicants contends that an adequate alternative remedy is not presently available to them under the Industrial and Employees Relations Act 1994. He does so on a single narrow ground. Part 6 of that Act dealing with Unfair Dismissal commences with s.105. Subsection (1) of that section is in language reminiscent of s.31 of the repealed South Australian legislation, and reads:
"105(1) If an employer dismisses an employee, the employee may, within 14 days after the dismissal takes effect, apply to the Commission for relief under this Part."
Counsel contends that until the dismissal "take effect", that is until the applicants cease to work for the respondent at the expiration of the periods of notice, the Industrial Relations Commission of South Australia has no jurisdiction to receive or consider an application for a remedy for unfair dismissal under s.105. Accordingly there is at present no statutory remedy available to the applicants other than that provided under Division 3 of Part VIA of the Act. It is not suggested that there are adequate alternative remedies available to the applicants otherwise than under the Industrial and Employee Relations Act. Counsel for the applicants did not argue that an adequate alternative remedy would not be available to the applicants under the South Australian legislation once their dismissals "take effect".
The limited scope of the submissions of counsel for the applicants raises the question whether the Court should only consider whether an adequate alternative remedy exists where that issue is raised by the parties, and then only consider the points raised by counsel, or whether the Court is required to consider the issue in any event and regardless of the attitude of the parties. This question was considered by Spender J. in Australian Municipal, Administrative Clerical and Services Union and Wilshere v Gold Coast Community Options Association Inc., Industrial Relations Court, judgment 26 August 1994. In that case the respondent employer on an application under s.170EA after first pleading that there was an adequate alternative remedy available to the employee, amended its response to withdraw that allegation. Spender J held that the Court was nevertheless obliged to consider whether the Queensland legislation provided an adequate alternative remedy. His Honour drew attention to the imperative direction in s.170EB that the Court "must" decline to exercise jurisdiction in cases falling within the scope of the section, and at p.6 said:
"In the view I take of s.170EB, the Commonwealth Parliament has expressed an intention that if under the statutory regime of the various states dealing with questions of termination and reinstatement, an adequate alternative remedy in respect of the termination under existing machinery that satisfies the requirements of the Termination of Employment Convention exists, then an applicant is to seek that remedy in preference to having the question be the subject of determination by the Industrial Relations Court. The intention of Parliament, in short, is that if there is an adequate alternative remedy under state legislation, then this Court should not deal with the matter."
I agree that the Court should of its own motion give consideration to the requirement of s.170EB even where an issue under that section is not raised by the respondent, but the Court cannot be expected to explore without the assistance of counsel every last interpretation possibility that can be envisaged under the State legislation, let alone every possible combination or permutation of facts in the case which may enhance or diminish the prospect that the State law would provide an adequate alternative remedy in the circumstances of that case. It must be recognised that the question whether an applicant has available an adequate alternative remedy is one to be decided having regard to the circumstances of the case and may well turn on matters of fact.
Under s.170EB I consider the Court is required to consider what result would probably occur if application were to be made in the other relevant tribunal to invoke a remedy potentially available under State legislation or otherwise. It is a serious matter for the Court to decline jurisdiction and to require an applicant to experience the expense and delay of taking action in another place. In these circumstances I think that the Court should not be "satisfied" that an adequate alternative remedy is available unless the likelihood that that is so appears as a clear probability. If there is a clear probability that an application to another tribunal would provide an adequate alternative remedy in respect of the termination under existing machinery that satisfies the requirements of the Termination of Employment Convention, the Court must decline to consider or determine the application. Absent such a clear probability I consider the Court should exercise jurisdiction and embark on the consideration of the application.
In my opinion this approach is consistent with the test adopted by Moore J in Siddons v National Union of Workers, NSW Branch, Industrial Relations Court, judgment 29 August 1994, to determine whether this Court should continue to consider an application filed under s.170EA. His Honour said at p.4:
"In my opinion it is sufficient that it is evident that there is a substantial likelihood that the NSW Commission cannot deal with the alleged dismissal of the applicant or would not because it believed it lacked jurisdiction to do so."
His Honour went on to hold that having regard to doubt arising from a decision of the Full Commission whether the Commission would, in the circumstances of the case before him, entertain an application to consider the applicant's alleged dismissal the Court "cannot be positively satisfied there is an adequate alternative remedy".
As the availability of an adequate alternative remedy in a particular case may turn on questions of fact it may be that when the Court first considers whether s.170EB requires the Court to decline jurisdiction, the availability of an alternative remedy, or its adequacy cannot be assessed. In these circumstances the Court could not be "satisfied" on the question to be considered under the section. The Court would continue to exercise jurisdiction. If in the course of its further consideration of the matter facts became clear to the point that the Court was then satisfied that an adequate alternative remedy was available, s.170EB would require that the Court then decline to determine the application. That the obligation on the Court to decline jurisdiction is one that may arise even after the Court has embarked on a consideration of the application follows from the requirement that the Court "must decline to consider or determine an application". This interpretation opens up the theoretical possibility that a Court and the parties may embark on a substantial hearing into the merits of an alleged dismissal before the Court decides that it must decline to determine the matter. This situation could cause wasted time and expense. However, in most cases the possibility will be unlikely to occur as the remedies under State legislation which is the likely source of an adequate alternative remedy are available only where proceedings are commenced within a short limitation period. By the time this Court progressed to the stage of hearing evidence on the merits of the alleged dismissal that time limit is likely to be well passed. Even where the State legislation provides a discretion for extending time it is unlikely that there would be a clear probability that time would be extended if the applicant sought to pursue the alternative remedy. The Court would not, in those circumstances, be satisfied that the alternative remedy was available, and s.170EB would not prevent the Court from determining the application under s.170EA.
Before turning to the contention of the applicants that s.105 of the State Act does not presently make available to them any remedy, it is convenient to consider whether apart from this alleged absence of jurisdiction the remedies that would otherwise be available to the applicants under the Industrial and Employee Relations Act constitute an adequate alternative remedy within the meaning of s.170EB.
Section 170EB requires that the adequacy of the alternative remedy and the machinery under which it arises be tested against the requirements of the Termination of Employment Convention. Article 8(1) of the Convention requires that a worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body such as a court, labour tribunal, arbitration committee or arbitrator. The Industrial and Employee Relations Act provides for such an "appeal", and empowers the Commission to examine the reason given for the termination and other circumstances relating to the case and to render a decision on whether the termination was justified as required by Article 9(1) and 9(3). At a hearing of an application under Part 6, the Commission must determine whether, on the balance of probabilities, the dismissal was harsh, unjust or unreasonable. The requirement of proof by the applicant on the balance of probabilities imposes on an applicant under Part 6 an onus of proof that differs from that imposed by s.170EDA of the Act, but the "machinery" under Part 6 nevertheless conforms with Article 9(2)(b) which requires that the body hearing the "appeal" is to be empowered to reach a conclusion "having regard to the evidence provided by the parties and according to procedures provided by the national law and practice": see Australia Municipal, Administrative Clerical and Services Union v Gold Coast Community Options Association Inc. at pp.13-15 and Grout v Gunnedah Shire Council at pp.55-56.
Article 10 of the of the Convention provides:
"If the bodies referred to in Article 8 of this Convention find that termination is unjustified and if they are not empowered or do not find it practicable, in accordance with national law and practice, to declare the termination invalid and/or order or propose reinstatement of the worker, they shall be empowered to order payment of adequate compensation or such other relief as may be deemed appropriate."
Part 6, in s.108(1) provides:
"108(1) If the Commission is satisfied on an application under this Part that an employee's dismissal was harsh, unjust or unreasonable, the Commission may -
(a)order that the applicant be re-employed by the employer in the applicant's former position without prejudice to the former conditions of employment; or
(b)if it would be impracticable for the employer to re-employ the applicant in the applicant's former position, or re-employment in the former position would not, for some other reason, be an appropriate remedy - order that the applicant be re-employed by the employer in some other position (if such a position is available) on conditions determined by the Commission; or
(c)if the Commission considers that re-employment by the employer in any position would not be an appropriate remedy - order the employer to pay to the applicant an amount of compensation determined by the Commission."
Whereas Article 10 speaks of a power to order or propose "reinstatement" the corresponding expression in s.108 is "re-employment". Provided the meaning of these expressions is co-extensive, a question discussed below, s.108 appropriately empowers the Commission to order remedies which meet the requirements of Article 10. They are remedies which are essentially the same as those provided for in s.170EE but do not contain the cap on compensation which now appears in s.170EE(3) and (4).
There is no power in the Commission when determining an application under Part 6 to award damages for a breach of a contractual duty (as opposed to ordering compensation under s.108), or to make a binding declaration of right akin to the powers possessed by this Court when determining an application under s.170EA, but those are powers which derive otherwise than from the statutory scheme intended to implement the Convention and are irrelevant to the comparison and assessment required to be made by s.170EB: Grout v Gunnedah Shire Council at p.63.
Apart from the considerations raised by the applicants' contention in relation to s.105, I consider that Part 6 of the Industrial and Employee Relations Act does make available to the applicants an adequate alternative remedy under existing machinery that satisfies the requirements of the Convention.
The submissions in support of the applicants' contentions on s.105 sought to draw a distinction between the meaning of the expressions "dismissal" and "re-employment" used in Part 6 and "termination" and "reinstatement" used in the Convention and in Division 3 of Part VIA of the Act. This was done to emphasise that until the employer and employee relationship ceases, Part 6 does not contemplate any role for the Commission. The Court was taken to decisions concerning the interpretation of the precursors of s.105 in earlier South Australian legislation. The expressions "dismissal" and "re-employment" were used in s.31 of the repealed Industrial Relations Act (SA) 1972, and in s.15(1)(e) of the Industrial Conciliation and Arbitration Act 1972 (SA) on which s.31 was based.
In The Queen v Industrial Court of South Australia; Ex parte General Motors Holdens Pty Limited (Gnatenko's Case) (1975) 10 SASR 582, Bray CJ in considering s.15(1)(e), said at p.586:
"Finally, I think that it is an essential condition of the jurisdiction that the employer should have been dismissed. The words 'dismissed' and 'dismissal' are used throughout. The power is to direct re-employment, not reinstatement, and the word 're-employ' seems to me to imply that the employee has not been in the employment of the employer between the date of dismissal and the date of re-employment. In short, I think that if the employee wishes to contend, not only that his purported dismissal was unlawful, but that it was invalid and that he has not been dismissed at all and that he is still in the employment of the employer, or if he wishes to invoke the exceptional power to grant an injunction restraining the employer from terminating the employment referred to in and acted on in Hill v. C.A Parsons and Co. Ltd. (1971) 3 All E.R. 1345 then his remedy is to apply to a court of equity and an application under section 15(1)(e) would be misconceived. By making the application, alleging in terms like those of the present application that he had been dismissed, the respondent has also, it seems to me, accepted the position that his employment has been terminated albeit perhaps wrongfully."
Bray CJ was not one of the majority in that decision, and the other two members of the Court did not consider the meaning of the word "dismissal". This passage from the judgment of Bray CJ was recently applied by the Full Industrial Commission of South Australia in interpreting s.31 in Zubrinich v Pasminco Metals - BHAS Pty Ltd (1994) 61 SAIR 154. The meaning thereby attributed to "dismissal" in s.31 is a narrow and technical one. In contrast the expression "termination" carries a wider meaning in Division 3 of Part VIA of the Act. Under s.170CB an expression used in Division 3 has the same meaning as in the Termination of Employment Convention. Under Article 3 of the Convention "termination" and "termination of employment" mean termination of employment at the initiative of the employer. Notwithstanding the apparent differences of opinion expressed by Wilcox CJ in Siagian v Sanel Pty Ltd (1994) 122 ALR 333 and Gray J in APESMA and Stephenson v Skilled Engineering Pty Ltd (1994) 122 ALR 471 as to the meaning of "termination", both were of the opinion that a termination of employment could occur even though the contract of employment had not been brought to an end according to the ordinary principles of the law of contract: Siagian v Sanel Pty Ltd at p.351 and APESMA and Stephenson v Skilled Engineering Pty Ltd at pp.482-483.
The provisions of Part 6 of the Industrial and Employee Relations Act refer generally, but not exclusively, to "dismissal" and not to "termination". Such a difference in language has not been considered material in deciding whether remedies under State legislation in Queensland and New South Wales conditional upon there being a "dismissal" were for that reason less adequate than remedies available on an application under s.170EA: Australian Municipal, Administrative, Clerical and Services Union v Gold Coast Community Options Association Inc. at p.7, and Grout v Gunnedah Shire Council at p.54.
There are reasons why the expression "dismissal" in the Part 6 should be construed as co-extensive with the expression "termination", whatever the meaning of "dismissal" may have been under the repealed South Australian legislation. Part 6 has been enacted against the background of Australia registering its ratification to the Termination of Employment Convention 1982 on 26 February 1993. By Article 16 of the Convention it came into force for Australia on 26 February 1994. Section 111 of the Industrial and Employee Relations Act states the intention of the Parliament of South Australia in enacting that Act:
"111.(1) In enacting this Part, it is Parliament's intention to give effect to the Termination of Employment Convention.
(2) If, in any respect, this Part does not provide a remedy that is an adequate alternative remedy (within the meaning of section 170EB of the Commonwealth Act) to the remedy available to an employee in respect of termination of employment under the Commonwealth Act, this Part is to be read subject to the modifications necessary to provide an adequate alternative remedy.
(3) The Court may, on application by the Minister, declare what (if any) modifications to this Part are necessary to provide an adequate alternative remedy as required under subsection (2).
(4) The modifications specified in a declaration under this section take effect as if they had been enacted by the Parliament."
The expression relevantly used throughout the Convention is "termination", not "dismissal". In s.107 of the Industrial and Employee Relations Act 1994 both expressions are used:
"107.(1) At the hearing of an application under this Part, the Commission must determine whether, on the balance of probabilities, the dismissal was harsh, unjust or unreasonable.
(2)...
(3) Indeciding whether a dismissal was harsh, unjust or unreasonable, the Commission must have regard to -
(a)the Termination of Employment Convention; and
(b)the rules and procedures for termination of employment prescribed by or under Schedule 8."
The rules and procedures prescribed by or under Schedule 8 are entitled "Rules for Terminating Employment", and the expressions "terminate" and termination" are thereafter used. Having regard to the background, to s.111(1) and (2), and to the use of both expressions in the Act the conclusion seems inevitable that both expressions have the same meaning in Part 6.
In my opinion "dismissal" in Part 6 is to be construed broadly, as is "termination" in the Act. The narrow technical meaning accorded to "dismissal" by Bray CJ is not consistent with the context or purpose of Part 6.
Once it is determined that "dismissal" does not have the narrow meaning referred to by Bray CJ, it is not difficult to read "re-employment" in s.108 as co-extensive with "re-instatement" in the Convention and Division 3 of Part VIA of the Act. In my opinion there is no difference in the meaning of the two expressions in the contexts in which they appear.
This conclusion however does not resolve the contention of the applicants as the interpretation which they seek to place in s.105 rests rather on the words "takes effect" in the phrase "within 14 days after the dismissal takes effect". That is the stipulation which qualifies the applicants' right to apply to the Commission. Even if the word "dismissal" is construed to cover situations where the contract of employment is not yet at an end, nevertheless, so the applicants argue, the dismissal does not take effect until the employer and employee relationship has ceased. The cessation of that relationship is said to be the jurisdictional fact which enlivens the power of the Commission.
An alternative interpretation of s.105 is to treat it not as the section which vests jurisdiction in the Commission, but merely as a limitation provision which provides a time limit after which an application is not to be brought. There are a number of considerations which lead me to the conclusion that s.105 should be construed in this way.
If there were no other provisions in the legislation which by their terms bestowed jurisdiction on the Commission to consider the circumstances and justification for a dismissal, there would be reason to imply such a jurisdiction from Part 6, and in particular from s.105. This would be a factor in support of the applicants' contention. However there are provisions elsewhere than in Part 6 which expressly vest such a jurisdiction in the Commission. The Commission is established under Chapter 3 Part 3. Division 3 of Part 3 provides for the jurisdiction of the Commission; in particular s.26(d) provides that the Commission has jurisdiction, amongst other things, to hear and determine any matter or thing arising from or relating to an "industrial matter". By the interpretation section, s.4, "industrial matter" means "a matter affecting the rights, privileges or duties of employers or employees...or the work to be done in employment, including for example -... (j) the dismissal of an employee by an employer".
With that grant of jurisdiction, Part 6 then enacts the procedures and remedies available to the Commission in the exercise of the jurisdiction where an unfair dismissal is alleged. That s.105 is merely a procedural provision, and not one establishing the jurisdiction of the Court gains support from the provisions of s.167, to which the footnote to s.105 refers, which empowers the Commission to "extend a limitation of time".
An analogy may be drawn between the scheme of the South Australian legislation and the Act. Under the Act this Court is established under Part XIV, and by s.412 the Court is given jurisdiction with respect to matters arising under the Act in relation to which applications may be made to it under the Act. Subdivision C of Division 3 of Part VIA, headed "Remedies in respect of unlawful termination", contains broadly similar provisions to Part 6, and deals with the procedures and remedies to be applied in the exercise of the jurisdiction of the Court. In subdivision C, s.170EA is plainly a procedural section. Subsection 170EA(3) prescribes a limitation period which requires that an application "must be made (a) within 14 days after the employee receives written notice of the termination; or (b) within such further period as the Court allows on an application made during or after those 14 days". It would be impossible to treat s.170EA(3) as the section, or as one of the sections in a scheme, that establishes the jurisdiction of the Court to hear an application under s.170EA as s.170EA(3) deals only with cases where written notice of termination is given. It makes no provision for dismissals otherwise than on written notice. If s.170EA(3) were a jurisdictional provision, the Court would not have jurisdiction except where written notice was given. The proper interpretation is to treat s.170EA as a procedural provision; and in cases where an employee does not receive written notice of termination, no period of limitation is imposed.
If s.105(1) is construed as a procedural provision imposing a period of limitation it would be a strange result if the requirement that an application may be brought "within 14 days after the dismissal takes effect" means that an application can only be brought in the period after the dismissal takes effect and before 14 days thereafter, or such later date as the Commission allows under s.167. Limitation periods are customarily expressed as requiring proceedings to be instituted "within (a period)... after the cause of action accrued": see for example ss.34 to 38 of the Limitation of Actions Act 1936 (SA). However these limitations are understood to prescribe only the latest date by which proceedings are to be commenced. Limitation periods are not construed to prevent proceedings being brought for appropriate preventative remedies before a cause of action has crystallised. Quia Timet injunctions and declarations of right where an invasion of rights is threatened provide obvious examples.
Under s.26(d) read in conjunction with s.4(j) of the Industrial and Employee Relations Act the Commission has jurisdiction to hear and determine any matter or thing relating to the dismissal of an employee. Issues can arise between employer and employee as to the justification for a dismissal as soon as notice of dismissal is given. Those issues are matters or things relating to the dismissal. One of the remedies central to the unfair dismissal provisions is that of reinstatement, or "re-employment" to use the language of s.108. The objects of the legislation would be greatly promoted by an interpretation which allowed an employee to bring an allegation of unfair dismissal before the Commission before the employer and employee relationship ceased. The conciliation process required by s.106 could be utilised, and if necessary, the justification of the proposed dismissal determined, before the parties become committed to the payments and rearrangements of business and private affairs that are usually associated with the cessation of the employer and employee relationship.
On the other hand no sensible reason exists for restricting the right of a dissatisfied employee from approaching the Commission until after the employer and employee relationship has ended, at which time practical considerations often militate against an order for reinstatement.
In my opinion the applicants are presently able to apply to the Commission under s.105 for relief under Part 6, and their right to do so will continue until the limitation period expires; and that period will not commence until their dismissals take effect.
On the construction which I have placed on the provisions of Part 6 relating to the circumstances of the present cases no occasion arises to resort to the provisions of s.111(2). However if there is any doubt about the interpretation I have given to the expressions "dismissal" and "re-employment" and to the function of s.105, s.111(2) would appear to authorise the interpretations which I have adopted as ones necessary to provide an adequate alternative remedy.
For these reasons I uphold the respondent's contention. I am satisfied that the applicants have available to them an adequate alternative remedy within the meaning of s.170EB, and the Court must decline to further consider their applications under s.170EA.
It should be noted that the "Court" empowered by s.111(3) of the Industrial and Employee Relations Act to declare what (if any) modifications to Part 6 are necessary to provide an adequate alternative remedy as required by s.111(2) is the Industrial Relations Court of South Australia, not this Court. Moreover the interpretation of the Industrial and Employee Relations Act, the scope of the remedies provided by it, and the relevant jurisdiction of the Commission to order those remedies are ultimately questions for the Commission and Courts of the State of South Australia. This Court in considering an issue arising under s.170EB must of necessary express a view on those issues, but that view is not binding on the Commission or the Courts of the State. Hopefully the Courts of both hierarchical systems would agree, but the possibility must be recognised that this might not be so. The Full Court of the Supreme Court of South Australia might differ from the view of a single judge of this Court just as the Full Court of this Court might do so on appeal. The possibility that the view of this Court might differ in a particular case from that of the Commission or the Courts of the State on the entitlement of an employee to remedies under Part 6 is not dependent solely on matters of interpretation of the legislation. A different view on the facts - perhaps formed on more complete evidence - could arise. For these reasons even though this Court comes to the conclusion in a case such as the present ones, on a particular view of the meaning of s.105, that the Court is satisfied that the applicant has an adequate alternative remedy, the order of the Court should reflect the possibility that the alternative remedy might turn out not to be available. In my opinion where the Court declines to consider or determine an application because of the provisions of s.170EB, ordinarily the Court should not dismiss the application under s.170EA. The application should be stayed until further order, but remain on foot so that if the other tribunal takes a contrary view about the availability of the alternative remedy to the applicant, the applicant can apply to have the application under s.170EA further considered. Having regard to the time limit imposed by s.170EA(3) and the consequences which ordinarily follow from the dismissal of an application, the applicant could be left without any effective remedy if this course were not followed.
The applications filed under s.170EA include claims for damages and declaratory relief which arise otherwise than under the rights and remedies created by Division 3 of Part VIA of the Act. It is doubtful whether s.170EB operates necessarily to prevent the Court exercising jurisdiction in respect of those claims, but as a matter of common sense and proper utilisation of Court and public resources, the Court should not embark on hearing these claims, at least until the applicants have exhausted whatever rights and remedies are available to them under the Industrial and Employee Relations Act. These claims are merely incidental to the alternative remedies that the Court is satisfied are available to the applicants, and if those remedies are ordered there will probably be no occasion to consider the incidental claims.
I consider this Court should now order that it is satisfied that there is available to each applicant an adequate alternative remedy within the meaning of s.170EB; that the Court decline to further consider or determine the applications made under s.170EA; and that the applications be stayed until further order.
I certify that this and the 24 preceding pages are a true copy of the Reasons for Judgment of Mr Justice von Doussa
Associate:
Dated:
Counsel for the applicants : Mr J R Rau
Solicitor for the applicants : Johnston Withers
Counsel for the respondent : Mr G D Coppola
Solicitor for the respondent : Kelly & Co.
Date of hearing : 15 September 1994
C A T C H W O R D S
Industrial Law - unfair dismissal - application under s.170EA - written notice of termination still running -whether adequate alternative remedy under the Industrial and Employee Relations Act 1994 (SA) - whether Industrial Relations Commission of South Australia has jurisdiction with respect to an unfair dismissal before the employer and employee relationship has come to an end.
Industrial Relations Act 1988 (Cth), ss.170CB, 170EA, 170EB, 170EDA, 170EE, 170EH
Industrial and Employee Relations Act 1994 (SA), ss.4, 26, 105, 106, 107, 108, 111, 167
Industrial Relations Act (SA) 1972, s.31
Industrial Conciliation and Arbitration Act 1972 (SA), s.15(1)(e)
Limitations of Actions Act 1936 (SA), ss.34 to 38
Dunham v Randwick Imaging Pty Ltd (1994) 122 ALR 323
Tognolini v Burnett Petroleum Distributors Pty Ltd (1994) 122 ALR 497
APESMA and Stephenson v Skilled Engineering Pty Ltd and Others (1994) 122 ALR 471
Clancy v S.A. Regonal Media Limited (1991) 58 SAIR 719
Gribbles Pathology (Vic) Pty Ltd v His Honour Judge Allan and Anor (1992) 57 SASR 218
Grout v Gunnedah Shire Council, Industrial Relations Court judgment 30 September 1994, Moore J
Australian Municipal, Administrative Clerical and Services Union and Wilshere v Gold Coast Community Options Association Inc. Industrial Relations Court judgment 26 August 1994, Spender J
The Queen v Industrial Court of South Australia; Ex parte General Motors Holdens Pty Limited (Gnatenko"s Case) (1975) 10 SASR 582
Zubrinich v Pasminco Metals - BHAS Pty Ltd (1994) 61 SAIR 154
Siagian v Sanel Pty Ltd (1994) 122 ALR 333
Siddons v National Union of Workers, NSW Branch, Industrial Relations Court judgment 29 August 1994, Moore J
Matter No. SA 116 of 1994
NEVILLE FRYAR v SYSTEMS SERVICES PTY LTD and
Matter No. SA 117 of 1994
GRAEME SIMPSON v SYSTEMS SERVICES PTY LTD
VON DOUSSA J
ADELAIDE
28 OCTOBER 1994
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. SI 116 of 1994
)
SOUTH AUSTRALIA DISTRICT )
)
REGISTRY )
BETWEEN:
NEVILLE FRYAR
Applicant
AND:
SYSTEMS SERVICES PTY LTD
Respondent
MINUTES OF ORDER
JUDGE MAKING ORDER : VON DOUSSA J.
WHERE MADE : ADELAIDE
DATE OF ORDER : 28 OCTOBER 1994
THE COURT ORDERS THAT:
The Court is satisfied that there is available to the applicant an adequate alternative remedy within the meaning of s.170EB of the Industrial Relations Act 1988 (Cth).
The Court declines to further consider or determine the application made under s.170EA of the said Act.
The application be stayed until further order.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. SI 117 of 1994
)
SOUTH AUSTRALIA DISTRICT )
)
REGISTRY )
BETWEEN:
GRAEME SIMPSON
Applicant
AND:
SYSTEMS SERVICES PTY LTD
Respondent
MINUTES OF ORDER
JUDGE MAKING ORDER : VON DOUSSA J.
WHERE MADE : ADELAIDE
DATE OF ORDER : 28 OCTOBER 1994
THE COURT ORDERS THAT:
The Court is satisfied that there is available to the applicant an adequate alternative remedy within the meaning of s.170EB of the Industrial Relations Act 1988 (Cth).
The Court declines to further consider or determine the application made under s.170EA of the said Act.
The application be stayed until further order.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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