Neville Fryar v Systems Services Pty Ltd Graeme Simpson v Systems Services Pty Ltd Geoffrey Roberts v SA St John Ambulance Service Inc

[1995] IRCA 211

INDUSTRIAL LAW - EMPLOYMENT - TERMINATION - Claims of unlawful termination - Whether applicants for relief in Industrial Relations Court have an "adequate alternative remedy" under South Australian law - Effect of provision in South Australian legislation permitting an application "within 14 days after the dismissal takes effect" in circumstances where employees made application during period of notice of dismissal - Function of Commission under South Australian legislation to make orders for re-employment or compensation where it concludes that the dismissal was "harsh, unjust or unreasonable" - Effect of provision enabling South Australian provisions to be modified to the extent necessary to provide an adequate alternative remedy to that provided by the Commonwealth Act.

Industrial Relations Act 1988, s.170EB

Industrial Relations Act 1972, (SA), s.31

Industrial and Employee Relations Act 1994 (SA), ss.105-111, 167.

No. SI.258 of 1994

NEVILLE FRYAR v SYSTEMS SERVICES PTY LTD

No. SI.259 of 1994
GRAEME SIMPSON v SYSTEMS SERVICES PTY LTD

No. SI.1018 of 1995

GEOFFREY ROBERTS v SA ST JOHN AMBULANCE SERVICE INC 

CORAM:    WILCOX CJ, GRAY AND BEAZLEY JJ
PLACE:    SYDNEY (HEARD IN ADELAIDE)
DATE:     25 MAY 1995

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA  )        No. 258 of 1994
SOUTH AUSTRALIA DISTRICT REGISTRY)

BETWEEN:NEVILLE FRYAR

Applicant

AND:SYSTEMS SERVICES PTY LTD

Respondent

CORAM:    WILCOX CJ, GRAY AND BEAZLEY JJ
PLACE:    ADELAIDE
DATE:     5 APRIL 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The orders made by von Doussa J on 28 October 1994 be set aside and in lieu thereof it be ordered that the matter be referred to the Australian Industrial Relations Commission for conciliation pursuant to s.170EC of the Industrial Relations Act 1988.

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  )        No. SI.259 of 1994
SOUTH AUSTRALIA DISTRICT REGISTRY)

BETWEEN:  GRAEME SIMPSON

Applicant

AND:SYSTEMS SERVICES PTY LTD

Respondent

CORAM:    WILCOX CJ, GRAY AND BEAZLEY JJ
PLACE:    ADELAIDE
DATE:     5 APRIL 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The orders made by von Doussa J on 28 October 1994 be set aside and in lieu thereof it be ordered that the matter be referred to the Australian Industrial Relations Commission for conciliation pursuant to s.170EC of the Industrial Relations Act 1988.

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  )        No. SI.1018 of 1995
SOUTH AUSTRALIA DISTRICT REGISTRY)

BETWEEN:  GEOFFREY ROBERTS

Applicant

AND:SA ST JOHN AMBULANCE SERVICE INC

Respondent

CORAM:    WILCOX CJ, GRAY AND BEAZLEY JJ
PLACE:    ADELAIDE
DATE:     5 APRIL 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The question posed by the stated case be answered in the negative.

1. The matter be referred to the Australian Industrial Relations Commission for conciliation pursuant to s.170EC of the Industrial Relations Act 1988.

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  )        No. SI.258 of 1994
SOUTH AUSTRALIA DISTRICT REGISTRY)

BETWEEN:NEVILLE FRYAR

Applicant

AND:SYSTEMS SERVICES PTY LTD

Respondent

AND

No. SI.259 of 1994

BETWEEN:  GRAEME SIMPSON

Applicant

AND:SYSTEMS SERVICES PTY LTD

Respondent

AND

No. SI.1018 of 1995

BETWEEN:  GEOFFREY ROBERTS

Applicant

AND:SA ST JOHN AMBULANCE SERVICE INC

Respondent

CORAM:    WILCOX CJ, GRAY AND BEAZLEY JJ
PLACE:    SYDNEY (HEARD IN ADELAIDE)
DATE:     25 MAY 1995

REASONS FOR JUDGMENT

WILCOX CJ AND BEAZLEY J:  On 5 April 1995 the Court heard three cases.  They raised similar issues and, by consent, were heard together.  Two cases, Fryar v Systems Services Pty Ltd and Simpson v Systems Services Pty Ltd, were appeals against a decision of von Doussa J announced on 28 October 1994 and now reported at 125 ALR 592. The third case, Roberts v S A St John Ambulance Service Inc, came to the Court by way of a case stated by von Doussa J.  All three cases involved questions about the availability to the various applicants - all applicants for relief under Division 3 of Part VIA of the Industrial Relations Act 1988 - of an "adequate alternative remedy" under South Australian legislation. The issue arose because s.170EB of the Industrial Relations Act provides:

"170EBThe 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."

When the matters were called for hearing, counsel appearing for the Attorney General of South Australia sought leave to intervene.  They submitted that leave should be granted because the cases involved the meaning and scope of Part 6 of Chapter 3 of the South Australian Industrial and Employees Relations Act 1994, a matter of importance to the State.  None of the parties opposed the application.  We granted leave.

After a brief adjournment at the conclusion of the argument, we announced that we were of the opinion that none of the applicants had available an adequate alternative remedy, within the meaning of s.170EB. We ordered that the two appeals be allowed and the orders made by von Doussa J be set aside, that the question posed by the stated case be answered in the negative and that all three matters be referred to the Australian Industrial Relations Commission for conciliation pursuant to s.170EC of the Act. We indicated that we would publish reasons for these orders as soon as possible. These are our reasons.

The Fryar and Simpson facts

The facts of these two matters can be recounted together.  The applicants were employed by System Services Pty Ltd as systems programmers.  On 5 April 1994 the Chief Executive Officer of the company wrote letters to each of them notifying the cessation of their employment.  The letter to Mr Fryar relevantly stated:

"... Systems Services has to employ staff under conditions quite different to the past and which allow flexibility in terms of payment, location and staff levels.  Those new conditions have already been put into place for almost all of our current employees.  We are unable to maintain any employee not under those new standard conditions and you are in that situation.

Accordingly, you will cease to be employed by the company on November 23rd, 1994.  You may, after that date, choose to apply for contract employment with the Company.  We are giving you this lengthy period of notice to give you every opportunity to obtain alternate employment if it is not your intention to apply for a contract position with Systems Services."

The letter to Mr Simpson was in the same terms except that the stated date of cessation of employment was 13 January 1995.

On 18 April 1994 Mr Fryar and Mr Simpson filed Applications in this Court pursuant to s.170EA of the Industrial Relations Act.  They sought relief in similar terms:  a declaration that the termination of employment contravened Division 3 of Part VIA of the Act, a declaration that the letter dated 5 April "is void and of no effect", compensation, damages, reinstatement and costs.  Subsequently, each amended his Application so as to add a claim for an injunction restraining the respondent from terminating his employment.  We need not consider the extent to which these remedies are available to a person whose employment is terminated in breach of Division 3 of Part VIA.

At about the same time as they filed their Applications in this Court, Mr Fryar and Mr Simpson made applications to the Industrial Commission of South Australia seeking relief under s.31 of the Industrial Relations Act 1972 (SA).  Neither of these applications has yet been heard.

The Applications filed in this Court came before von Doussa J at a directions hearing on 26 April. The respondent contended that each applicant had an adequate alternative remedy under s.31 of the South Australian Act so s.170EB applied. The parties agreed that the applicants were not employed under the terms of a federal award or excluded from the operation of the South Australian Act.

The directions hearings before von Doussa J were adjourned, more than once, whilst the parties' advisers considered the implications of s.170EB. In the meantime, the 1972 South Australian Act was repealed by a new statute, the Industrial and Employee Relations Act 1994, which took effect on 8 August 1994. The respondent thereafter maintained its contention that s.170EB applied to the case, but it did so on the ground that the new Act provided an adequate alternative remedy.

The parties agreed that the question whether the applicants had an adequate alternative remedy, within the meaning of s.170EB, should be considered as a preliminary matter. They argued the question on 15 September 1994. On 28 October 1994 his Honour made orders in each matter as follows:

"(1)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).

(2)The court declines to further consider or determine the application made under s.170EA of the said Act.

(3)The application be stayed until further order."

The applicants appealed against those orders.

The Roberts stated case

The case stated by von Doussa J in relation to Mr Roberts' claim reveals that, prior to 24 January 1995, he was employed as an Ambulance Officer by the SA St John Ambulance Service Inc.  His employment was governed by two awards of the South Australian Industrial Relations Commission.  On 24 January Mr Roberts was summarily dismissed from his employment on the ground of gross misconduct.  He filed an Application in this Court on 2 February 1995 alleging unlawful termination of employment in contravention of Division 3 of Part VIA of the Industrial Relations Act.  On 9 February the respondent's solicitors wrote a letter to the union acting on Mr Roberts' behalf, Australian Liquor Hospitality and Miscellaneous Workers Union, enclosing copies of their client's Appearance and a Notice of Motion that sought "an order that the claim be struck out on the grounds that your member's application should have been brought pursuant to Section 105 of the Industrial and Employees Relations Act 1994 South Australia".  The letter went on:

"We advise that our client will consent to an extension of time pursuant to Section 167 of the Industrial and Employee Relations Act 1994 South Australia provided that application pursuant to Section 105 is made prior to the expiry of 14 days of withdrawal of your member's application pursuant to Section 170EA of the Industrial Relations Act 1988 (Commonwealth) or a decision by the Court to decline to consider or determine that application pursuant to Section 170EB of the Commonwealth Act."

On 10 March 1995 the respondent's solicitors filed a Notice of Motion seeking orders that the s.170EB issue be the subject of a stated case to the Full Court. On 17 March they wrote a letter to the solicitors by now acting on behalf of Mr Roberts stating:

"We advise that our client gives an undertaking not to withdraw the offer to consent to an extension of time pursuant to section 167 of the Industrial and Employee Relations Act (SA) 1994 until after the expiry of 14 days of withdrawal of your client's application pursuant to Section 170EA of the Industrial Relations Act (Cmwth) 1988 or a decision by the Court to decline to consider or determine that application pursuant to Section 170EB of the Commonwealth Act."

von Doussa J acceded to the respondents' application for a stated case.  The question he submitted to this Court was framed in this way:

"Whether in the circumstances of this matter there is available to the applicant under the Industrial and Employee Relations Act 1994 an adequate alternative remedy under existing machinery that satisfies the requirements of the Termination of Employment Convention."

The South Australian legislation

In order to determine the issues presented by the three matters, it is necessary to refer to provisions of both the 1972 and 1994 South Australian Acts. 

Section 31 was inserted into the 1972 Act in 1984.  Between that date and the events with which these cases are concerned it was extensively amended.  At the latter date it relevantly read:

"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.

(2)An application cannot be made under this section where the dismissal of the employee is subject to appeal or review under some other Act or law.

(2a)...

(2b)    ...

(3)Where in proceedings under this section the Commission is of the opinion that the dismissal of the applicant 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;

(b)where it would be impracticable for the employer to re-employ the applicant in accordance with an order under paragraph (a), or such re-employment 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 (if any) determined by the Commission;

or

(c)where, after considering whether to make an order under paragraph (a) or (b), the Commission considers that re-employment by the employer of the applicant 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.

(4)Where the Commission makes an order for re-employment under this section, then, subject to any contrary direction of the Commission -

(a)the employee must be remunerated in respect of the period intervening between the date that the dismissal took effect and the date of re-employment as if the employee's employment in the position from which the employee was dismissed had not been terminated;

(b)the employer is entitled to the repayment of any amount paid to the employee on dismissal on account of any accrued entitlement to recreation leave or long service leave;

and

(c)for the purposes of determining rights to recreation leave, sick leave and long service leave, the interruption to the employee's continuity of service caused by the dismissal will be disregarded.

(5)Where an application under this section proceeds to hearing and the Commission is satisfied that a party to the proceedings clearly acted unreasonably in failing to discontinue or settle the matter before it reached the hearing, the Commission may make an order for costs against that party (including any costs incurred by the other party to the application in respect of representation by a legal practitioner or agent up to and including the hearing).

(6)...

(7)..."

The relevant provisions of the 1994 Act are more extensive.  Part 6 of Chapter 3 of the Act consists of ss.105-111.  Section 105(1) provides that, 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".  The "Commission" is the Industrial Relations Commission of South Australia continued and regulated by Part 3 of Chapter 2 of the Act.  The 14 day limitation provided by s.105(1) must be read subject to s.167(1) of the Act empowering the Commission to "extend a limitation of time".

Subsection (2) of s.105 excludes applications under certain circumstances.  We need not set them out; it is agreed that none of those circumstances apply.  Subsection (3) provides:

"(3)If an employee takes proceedings under this Part, the employee -

(a)is taken to have elected to pursue the remedy provided by this Part to the exclusion of other remedies that may be available on the same facts; and

(b)is estopped from taking proceedings for remedies based on the same facts unless the proceedings under this Part fail for want of jurisdiction."

Section 106 requires a conciliation conference before the hearing of an application under Part 6.  Section 107 sets out the question to be determined at the hearing of an application:

"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)If an employer dismisses an employee, and makes a redundancy payment in accordance with an award or enterprise agreement that relates to the employee's employment, the dismissal cannot be regarded as a harsh, unjust or unreasonable dismissal solely on the ground that the payment is inadequate.

(3)In deciding 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 Termination of Employment Convention is the Convention Concerning Termination of Employment at the Initiative of the Employer adopted by the International Labour Organisation on 22 June 1982.  It was set out as Schedule 7 to the South Australian Act.  It is also Schedule 10 of the Commonwealth Act, the Industrial Relations Act.

The rules and procedures for termination of employment set out in Schedule 8 of the 1994 South Australian Act included two substantive provisions and an obligation on employers to comply with the rules and procedures prescribed by regulation.  No relevant regulations have yet been made.  The substantive provisions are as follows:

"1.(1)An employee must not terminate an employee's employment unless -

(a)the employee has been given either the period of notice required by subsection (2) or compensation instead of notice; or

(b)the employee is guilty of serious misconduct, that is, misconduct of a kind that makes it unreasonable to require the employer to continue the employment during the notice period.

(2)The required period of notice is worked out as follows:

(a)if the employee's period of continuous service with the employer is not more than 1 year - the period of notice is at least 1 week; and

(b)if the employee's period of continuous service with the employer is more than 1 year but not more than 3 years - the period of notice is at least 2 weeks; and

(c)if the employee's period of continuous service with the employer is more than 3 years but not more than 5 years - the period of notice is at least 3 weeks; and

(d)if the employee's period of continuous service with the employer is more than 5 years - the period of notice is at least 4 weeks,

but if the employee is over 45 years old and has completed at least 2 years continuous service with the employer, the period of notice is increased by 1 week."

Section 108 sets out the remedies the Commission may grant:

"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.

(2)If the Commission makes an order for re-employment under this section, then, subject to any contrary direction of the Commission -

(a)the employee must be remunerated for the period intervening between the date that the dismissal took effect and the date of re-employment as if the employee's employment in the position from which the employee was dismissed had not been terminated; and

(b)the employer is entitled to the repayment of any amount paid to the employee on dismissal on account of or arising from the dismissal; and

(c)for the purposes of determining rights to annual leave, sick leave, long service leave, and parental leave, the interruption to the employee's continuity of service caused by the dismissal will be disregarded.

(3)The Commission may decline to make an order under this section, or to grant any other form of relief, if the employee is pursuing a similar remedy that may be available on the same facts under another Act of the South Australian Parliament, or if it appears that the employee may pursue such a remedy."

Section 109 deals with costs:

"(1)If an application under this Part proceeds to hearing and the Commission is satisfied that a party to the proceedings clearly acted unreasonably in failing to discontinue or settle the matter before the hearing concluded, the Commission may, on the application of the other party to the proceedings, make an order for costs (including - if relevant - the costs of representation) against the party.

(2)If an employee discontinues proceedings under this Part more than 14 days after the conclusion of the conference of the parties, the Commission may, on the application of the employer, make an order for costs (including - if relevant - the costs of representation) against the employee if the commission is satisfied that the employee has acted unreasonably.

(3)..."

Section 110 requires expeditious determination of cases, a limit of three months after final submissions generally applying.  Section 111 relates to the Termination of Employment Convention.  It loomed large in the argument before us and we quote it in full.

"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."

Having regard to the fact that Mr Fryar and Mr Simpson made applications to the Commission under the 1972 Act, it is relevant to refer to the Transitional Provisions included in Schedule 10 of the Act.  Clause 8 relevantly provided:

"(1)The jurisdiction of the Court and the Commission under this Act extends to causes of action that arose before the commencement of this Act.

(2)Any proceedings that had been commenced before the former Court or the former Commission may be continued and completed by the Court or the Commission under this Act.

(3)The Court or Commission will apply the substantive law in force when the cause of action arose, or if proceedings relate to the making or variation of an award, when the application was made.

(4)..."

The decision of von Doussa J

After stating the facts of the two cases before him and the terms of the relevant legislation, von Doussa J referred at 594 to doubts whether s.31 of the 1972 Act "permitted the issue and presentation of proceedings before the South Australian Industrial Commission whilst the applicant was still performing work for the employer".  He said it was "a possible interpretation" of the Act "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".  He referred to a statement to that effect by Bray CJ in The Queen v The Industrial Court of South Australia; ex parte General Motors Holdings Pty Ltd (Gnatenko's case) (1975) 10 SASR 582 at 586:

"Finally I think that it is an essential condition of the jurisdiction that the employee 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 the dismissal and the date of re-employment.  In the application under consideration the respondent speaks of his dismissal.  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 and acted on in Hill v CA Parsons and Co Ltd [1971] 3 All ER 1345, then his remedy is to apply to a court of equity and an application under s.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."

von Doussa J noted that this passage had recently been applied by the Full South Australian Industrial Commission in Zubrinich v Pasminco Metals - BHAS Pty Ltd (1994) 61 SAIR 154.  Without expressing a view about its correctness in the context of s.31 of the 1972 Act, von Doussa J said at 600 that the meaning attributed to "dismissal" by Bray CJ was "a narrow and technical one".  He went on to note that a similar problem arose in relation to s.105 of the 1994 Act.  In this context he rejected the Bray interpretation of "dismissal".  He said there are reasons why "dismissal" in Part 6 of the 1994 Act "should be construed as co-extensive with the expression 'termination'", whatever its meaning in the 1972 Act.  The major reason was that Part 6 had been enacted against the background of Australia ratifying the Termination of Employment Convention on 26 February 1993, so that it came into force for Australia on 26 February 1994.  He referred to s.111 of the 1994 Act and noted s.107(3) which required the Commission, in deciding whether a dismissal was harsh, unjust or unreasonable, to have regard to that Convention and "the rules and procedures for termination of employment prescribed by or under Schedule 8" of the Act.  He said at 601 that:

"(h)aving 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 a '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." 

He went on at 601-602:

"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'.

...

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."

After noting at 603 that s.26(d), read in conjunction with s.4(j) of the 1994 Act, confers on the Commission "jurisdiction to hear and determine any matter or thing relating to the dismissal of an employee" and that an issue as to the justification of a dismissal might arise as soon as a dismissal notice is given, von Doussa J concluded that "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".  It followed that:

"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."

Accordingly, von Doussa J said he was 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."

However, at 603-604 he added a caveat:

"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 necessity 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."

It will be noted that von Doussa J did not consider whether the remedies granted by Part 6 of the 1994 South Australian Act, supposed then to be available to Mr Fryar and Mr Simpson, provided an adequate alternative to those available to them under the Commonwealth Act.

The submissions of counsel

Mr J R Rau, counsel for the two appellants, submitted that the 1994 South Australian Act was irrelevant to his clients' cases.  He pointed out that their applications to the South Australian Industrial Relations Commission were filed under the 1972 Act, not the 1994 Act.  He submitted that the effect of cl.8 of Schedule 1 of the 1994 Act was that the proceedings would continue (if at all) under the 1972 Act, as if that statute had not been repealed; the relevant substantive law being that provided by the 1972 Act.  When that law was considered, he said, two matters emerged.  First, an employee may apply to the Commission for relief under s.31 only "within 21 days after the dismissal takes effect".  In his clients' cases, he argued, the dismissals were not due to take effect until the dates stated in the letter of 5 April; that is, 23 November 1994 in the case of Mr Fryar and 13 January 1995 in the case of Mr Simpson.  Reagitating arguments considered by von Doussa J, Mr Rau submitted that it followed that the applications they made to the Commission in April 1994 were premature and ineffective.  No other applications were filed before von Doussa J came to consider the cases, so his Honour should have concluded that the applicants had not validly invoked the jurisdiction of the South Australian Commission.  Mr Rau argued that von Doussa J should also have concluded that his clients could not then invoke the Commission's jurisdiction.  He said this was for the same reason; s.105 of the 1994 Act, by then in force, also limited an employee's right to apply to a period calculated by reference to the time "the dismissal takes effect".  He said that neither dismissal had taken effect when von Doussa J dealt with the matter; so his Honour erred in holding that the applicants then had an adequate alternative remedy under the South Australian legislation.  Mr Rau said that, whether or not the South Australian Commission in law had jurisdiction to determine an application under s.31 of the 1972 Act that was filed before the notice of dismissal took effect, it took the view that it did not.  So, whatever the correct position, in a practical sense the applicants would be denied a remedy in the Commission.  The second point, according to Mr Rau, was that s.31 was incapable of being regarded as an "adequate alternative remedy" to the Commonwealth Act, basically for the reasons expressed in this Court in Liddell v Lembke (1994) 127 ALR 342, a decision given after von Doussa J's decision in Fryar.

By way of alternative, and against the possibility of the Court seeing relevance in the 1994 Act, Mr Rau submitted that its provisions "do not constitute machinery that satisfies the requirements of the Termination of Employment Convention".  By arrangement, Mr Rau left Mr P Hannon, counsel for Mr Roberts, to develop the reasons why this was so.

Mr Hannon commenced his argument by pointing out that his client had never filed an application with the South Australian Commission under s.105 of the 1994 Act.  As it was now more than 14 days since his dismissal, he no longer had a right to do so; he would require an extension of time under s.167.  Referring to Liddell v Lembke at 355-356 and 369-370, Mr Hannon submitted that:

"the entitlement to seek an extension of time for the making of an application on the merits is inferior to an entitlement to have a determination on the merits.  The applicant may be denied the extension of time.  He does not at the relevant time, namely the present consideration of this matter by this Court, have an adequate alternative remedy under the State Act".

Quoting from a passage in Grout v Gunnedah Shire Council (1994) 125 ALR 355 at 377 that was endorsed in Liddell v Lembke at 355, Mr Hannon said his client does not have "an unqualified statutory right to have his ... termination dealt with by an impartial tribunal".  Mr Hannon said that it makes no difference that the SA St John Ambulance Service has offered to consent to an extension of time under s.167 of the 1994 Act and undertaken not to withdraw that offer.  He pointed out that the offer is not unqualified and might be defeated by an unexpected delay in making an application to the Commission for an extension of time after withdrawal of the application in this Court; anyway the "Commission has an unfettered discretion as to whether or not to extend time and may refuse the application for an extension of time notwithstanding the consent of the respondent".  Mr Hannon referred to the "five paramount matters" concerning applications for extensions of time stated in Ulowski v Miller [1968] SASR 277 at 280 and applied by the Commission in Murdoch v Computer Power Education Pty Ltd (1990) 57 SAIR 441 to an application to extend time for the filing of an application under s.31 of the 1972 Act:

"the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation."

As Mr Hannon pointed out, in listing these matters, Bray CJ (with whom Mitchell and Walters JJ agreed) emphasised that an application for an extension of time involved an exercise of discretion that "ought not to be fettered by any absolute or inflexible rules". 

Mr Hannon submitted that, even if the time limitation did not require a conclusion that the 1994 South Australian Act failed to provide an adequate alternative remedy, there were other reasons for that conclusion.  He mentioned four matters.  First, the question that the South Australian Commission had to determine, in connection with an application under s.105, was different from that falling for determination under Division 3 of Part VIA of the Commonwealth Act.  Although, in considering an application under s.105, the Commission "must have regard to" the Termination of Employment Convention and the rules and procedures prescribed by or under Schedule 8, the Commission is not required to consider whether or not the dismissal was unlawful, as is required of this Court under the Commonwealth Act.  The task of the Commission is to "determine whether, on the balance of probabilities, the dismissal was harsh, unjust or unreasonable".  Illustrating this point, Mr Hannon observed that, under s.170DC of the Commonwealth Act, a denial of procedural fairness is determinative of a claim of unlawful termination, yielding remedies under s.170EE.  Under the 1994 South Australian Act, it is only one of the matters to be taken into account; it is not determinative of the claim.  An employee denied procedural fairness may fail under the South Australian Act because of other factors that cause the Commission to conclude, on the balance of probabilities, that the dismissal was not harsh, unjust or unreasonable.  Second, Mr Hannon submitted that the South Australian Commission has a wider discretion as to remedy than this Court under the Commonwealth Act.  He said that, on finding that there has been a termination in contravention of the Commonwealth Act, this Court must reinstate the employee, unless this is impracticable; whereas, under s.108(1)(c) of the South Australian Act, the South Australian Industrial Commission may order compensation instead of re-employment if it thinks re-employment "would not be an appropriate remedy".  His point was that inappropriateness is a lower standard than impracticability.  Mr Hannon's third point was that the South Australian Act places applicants at a greater risk regarding costs.  Section 109 allows the Commission to order costs against a party, including an applicant, whom it considers to have "clearly acted unreasonably in failing to discontinue or settle the matter before the hearing concluded" or against an employee who discontinued his or her proceeding under the Act more than 14 days after the conclusion of the pre-trial conference "if the Commission is satisfied that the employee has acted unreasonably".  An applicant under the Commonwealth Act is not subjected to these risks.  He or she may be ordered to pay costs only where the proceeding was instituted vexatiously or without reasonable cause:  see s.347 of the Commonwealth Act.  Finally, Mr Hannon referred to the fact that, under the South Australian Act, the employee bears the onus of proof throughout the case.  There being no special provision regarding onus of proof, the usual rule applies.  This rule is expressed in the maxim  "he who asserts must prove".  So an employee who asserts that his or her dismissal was harsh, unjust or unreasonable must prove this on the balance of probabilities.  In contrast, s.170EDA of the Commonwealth Act requires the employer to prove the existence of a valid reason for the termination, within the meaning of s.170DE(1).

Mr Hannon then turned to s.111 of the South Australian Act.  He commented that, even if the Parliament has achieved the intention stated in s.111(1), to give effect to the Termination of Employment Convention, it does not follow that the South Australian Act confers an adequate alternative remedy to that provided by the Commonwealth Act.  He said that s.111(2) raises a number of issues:  who is to determine what "modifications" of Part 6 are necessary to provide an adequate alternative remedy?; at what stage of the proceeding must such a determination be made?; what happens if there is a divergence of opinion amongst the five members of the Commission as to the modifications necessary to enable Part 6 of the South Australian Act to provide an adequate alternative remedy to that provided by the Commonwealth Act?  He submitted:

"If the State Act is to be modified so as to ensure that it provides an adequate alternative remedy, the modification must be fundamental.  It is impossible to envisage appropriate modifications which can be made to provide that the Commission may make a declaration as to a violation of the law.  The Commission has no power under the State Act to make such a declaration.  The Act could not be modified to allow for the same.  Further the Act could not be modified to such an extent that it could be read as setting out express prohibitions which will render certain behaviour of an employer unlawful."

Mr Hannon referred to a dictionary definition of the verb "to modify" viz "make partial or minor changes to; alter without radical transformation; alter so as to make less severe; alter so as to improve."  He commented:  "Modification cannot save the State Act, only radical surgery can do so.  Section 111 does not allow for such".  He submitted that it is "arguable" that s.111(2) is to be read in conjunction with s.111(3), in that the modifications referred to in s.111(2) "can only be authoritatively made pursuant to a declaration by the Court [that is the South Australian Industrial Relations Court] under subsection (3)".

Finally, Mr Hannon questioned whether subsections (3) and (4) of s.111 are constitutionally valid, the doubt arising because they delegate legislative power to a court.

Mr G D Coppola, counsel for System Services, placed considerable reliance on s.111.  He said that this section overcomes both the time problem argued by Mr Rau and the inadequacies mentioned by Mr Hannon.  In relation to time, Mr Coppola in effect adopted the reasoning of von Doussa J.  In relation to inadequacies, he submitted that the old s.31 provided an adequate alternative remedy; but, whether or not this was so, the new Part 6 did so and, in September 1994, Mr Fryar and Mr Simpson were entitled to bring applications under that Part.  Even if, contrary to his submissions, the 1972 Act did not confer an adequate alternative remedy, the situation was different under the 1994 Act, it being the duty of the Commission to make whatever modifications of that Act (including as to time of application) were necessary to provide an adequate alternative remedy.  If this meant that the Commission had to pose for itself a different ultimate question than that stated in s.107(1), this must be done.

On behalf of SA St John Ambulance Inc, Mr T L Stanley reargued one matter determined in Liddell v Lembke. He submitted that the South Australian Act provided an adequate alternative remedy to Mr Roberts, despite the fact that he has not filed an application under s.105 and the time limit has now expired. He contended that, in determining whether an adequate alternative remedy exists, this Court should consider the probable result of an application under s.167. He said that "(a)n adequate alternative remedy exists if there is a clear probability that the State Commission will allow the application for an extension of time". Referring to the letters of 9 February and 17 March 1995, Mr Stanley submitted that, in the circumstances of this case, an application for an extension of time would be unlikely to fail. Alternatively, Mr Stanley contended, it was unnecessary for an application to comply with the time limitation stated in s.105(1); s.111(2) provides for any modification to be made to the South Australian Act that is necessary to provide an adequate alternative remedy within the meaning of s.170EB, including elimination of the time bar.

Mr Stanley then submitted that the machinery prescribed by Part 6 of the South Australian Act complies with the requirements of the Convention.  As the contrary was not argued, we need not detail this submission.

Turning to a comparison between the South Australian Act and the Commonwealth Act, Mr Stanley noted that the South Australian Act permitted an application merely for compensation whereas the New South Wales Act considered in Liddell v Lembke required that an applicant seek reinstatement.  However, he accepted that, but for s.111, he would have difficulty in otherwise distinguishing his case from Liddell v Lembke.  His submission was that this was enough.

Counsel for the Attorney General of South Australia, Mr J J Doyle QC and Mr J Hankin, submitted that the narrow meaning given to "dismissed" in Gnatenko's case should not be applied to the 1994 Act.  They said "dismiss" and "dismissed" refer to an act -

"(a)by an employer;

(b)which is reasonably regarded as terminating the contract of employment or purporting to do so;

(c)whether the termination or purported termination occurs at the time of the act or will occur at some identifiable time in the future.

In other words, an act which does or will according to its terms bring the employment contract to an end, even if the act will do so only if the employee accepts it as doing so."

They suggested that this approach "gives a sensible result, because it covers immediate and threatened dismissal", is supported by s.lll(1) of the 1994 Act and is not in conflict with s.108 of that Act.  They said that a direction to an employer to withdraw a not yet effective termination "can sensibly be described as directing the employer to re-employ".  It follows, they said, that von Doussa J was correct in holding that Mr Fryar and Mr Simpson were then still able to make applications to the South Australian Commission under the 1994 Act.

Turning to the question whether the 1994 South Australian Act provides an adequate alternative remedy to the Commonwealth Act, counsel for the Attorney General submitted that the critical issue is the adequacy of the remedy under the State Act to the particular employee.  As there was no indication that of any of the applicants were "seeking a declaration for its own sake", any difficulty in obtaining one is not relevant; in any event, a determination under s.107(1) "is akin to a declaration".  Counsel submitted that, although the grant of a remedy under s.108 depends upon a finding that the dismissal was harsh, unjust or unreasonable:

"the obligation to have regard to the Convention and Schedule 8 coupled with the terms of section 111(1) and the peremptory language of the Convention and Schedule 8 mean that there is no significant difference between the position of an applicant under the [South Australian] Act and an applicant under the [Commonwealth] Act who invokes the discretion under section 170EE." 

Dealing with particular matters, counsel submitted that the orders that can be made under the two Acts are substantially the same, that the South Australian Act is not limited to those who seek re-employment and that the power to award costs:

"is a deterrent to both parties, and a protection to an employee against an employer relying on its deeper pocket."

Finally, counsel defended the constitutional validity of s.111(2) and (3).

Although the submissions of counsel for the Attorney General coincided to a large extent with those made by counsel for the respondents, there was one significant point of difference.  They disclaimed the view that any lack of adequacy in the alternative remedy provided by the South Australian Act was cured by s.111(2).  But they did not ask this Court to resolve that question.  On the contrary they said that, while there were good reasons for thinking that the provisions of the South Australian Act could only be modified by the South Australian Industrial Relations Court under s.111(3), this Court should not determine the matter.  They added that, even if members of the Commission could modify the provisions of the Act on a case by case basis, this Court must look at the provisions in their unmodified condition.  Even so, said counsel, there is no difficulty in concluding that the State Act provides an adequate alternative remedy to that provided by the Commonwealth Act; if there is a breach of the terms of the Convention, the dismissal will be harsh, unjust or unreasonable and the South Australian Commission has no real discretion about relief.

The position under the 1972 Act

In deciding this case, we applied the principles enunciated in Liddell v Lembke.  That was a recent decision of a Full Court of this Court.  Except in one respect (whether an entitlement to seek leave can ever constitute an adequate alternative remedy), the decision was not argued to be wrong.

It seems to us that Liddell v Lembke destroys the contention that Mr Fryar and Mr Simpson had an adequate alternative remedy under s.31 of the 1972 South Australian Act.  Even assuming, contrary to the view expressed in Gnatenko's case, that their applications to the South Australian Commission were not premature, the 1972 Act fell well short of providing a remedy equal to that provided under the Commonwealth Act.  Like the New South Wales legislation considered in Liddell v Lembke, s.31 of the 1972 Act did not provide for the vindication of a legal right; it merely empowered the Commission to make reinstatement or compensation orders where it was "of the opinion that the dismissal of the applicant was harsh, unjust or unreasonable".  As pointed out in Liddell v Lembke at 357-358 and 366-367, this concept is narrower than unlawfulness.  It is only part of one situation of unlawfulness arising under the Commonwealth Act.  It would not cover cases falling within s.170DE(1) of the Commonwealth Act, but not s.170DE(2).  Nor would it necessarily cover cases arising under s.170DC, 170DF or 170DG.

The position under the 1994 Act

On one view of the matter, it is unnecessary to determine whether the 1994 Act offers a remedy equal to that available under the Commonwealth Act.  In relation to Mr Roberts, it is clear that, by the time this Court came to consider the question of adequate alternative remedy, he had lost his entitlement to apply for relief under s.105 of the 1994 Act.  The period of 14 days fixed by that section had expired.  He was entitled to invoke the jurisdiction of the South Australian Commission under Part 6 only if he could persuade it to grant him an extension of time under s.167.  The grant of an extension of time is a discretionary matter. Unlike the Commonwealth Act, the South Australian Act did not at that time give him an unqualified right to have his termination dealt with by a statutory tribunal.  The observations made in Liddell v Lembke at 354-355 and 369-370 directly apply.  The letters from the solicitors for SA St John Ambulance Inc of 9 February and 17 March no doubt improve Mr Roberts' prospects of persuading the Commission to grant an extension of time under s.167.  But they do not guarantee success.  The Commission is not bound by the respondent's attitude.  The application for extension of time might yet fail.  The comment made in Liddell v Lembke at 355 remains applicable - "an entitlement to seek an extension of time for making an application for a determination on the merits is inferior to an entitlement to have a determination on the merits".  Without needing to consider the type of remedy offered by Part 6 of the 1994 South Australian Act, and the circumstances of its availability, it is clear that it does not offer Mr Roberts an adequate alternative remedy.

If the approach to s.31 of the 1972 Act taken by Bray CJ in Gnatenko applies to s.105 of the 1994 Act, the same observation may be made about the situation of Mr Fryar and Mr Simpson.  On that approach, at the time their cases came before von Doussa J, they had no remedy under the South Australian Act because the period during which they could make an application under that Act (14 days after, respectively, 23 November 1994 and 13 January 1995) had not yet commenced.  There is much to be said for the view that the Gnatenko approach does apply to s.105.  Section 105 of the 1994 Act repeats the formula "after the dismissal takes effect" that was used in s.31 of the 1972 Act.  Section 108 speaks of the employee's "re-employment" and of remuneration up to the date of re-employment "as if the employee's employment in the position from which the employee was dismissed had not been terminated".  However, there is also force in the view expressed by von Doussa J on this question.  An interpretation of s.105 that permits an application to be made to the South Australian Commission in the period between the giving of notice of dismissal and the actual termination of the employee's employment is more consonant with the concepts underlying the Termination of Employment Convention, to give effect to which is the avowed object of the South Australian Parliament.

If the remedy provided by Part 6 of the 1994 South Australian Act equalled that provided by the Commonwealth Act, it would be essential for us to resolve the issue about time for application.  But it does not.  Under those circumstances, as the issue about time is an issue about the proper interpretation of a South Australian statute that would ordinarily be determined by the courts and tribunals of that State, it is better for us not to express a view one way or the other.

The reason why we say that the remedy provided by Part 6 of the 1994 South Australian Act does not equal that provided by the Commonwealth Act is essentially the same as the reason why we reached the same conclusion about s.31 of the 1972 Act.  Part 6 of the 1994 Act does not provide for a vindication of the rights of an unlawfully dismissed employee; it merely provides a regime for the granting of relief to employees whose dismissal is considered harsh, unjust or unreasonable.  It is true that s.107(3) requires that, in determining whether a dismissal was harsh, unjust or unreasonable, the Commission must have regard to the Termination of Employment Convention and the rules and procedures prescribed by or under Schedule 8 of the Act.  But s.107(3) does not give these provisions direct legislative force, in the way the Commonwealth Act enforces the Termination of Employment Convention.  It would be permissible for the South Australian Commission to conclude that an employer had contravened a provision of the Convention or Schedule 8, yet the dismissal was not harsh, unjust or unreasonable.  That conclusion would not be open under the Commonwealth Act.  Because the Commonwealth statute makes actions proscribed by the Convention unlawful, and gives a remedy to employees who suffer unlawful termination of employment, an employee whose employment is terminated in breach of the Convention is entitled to relief.  That is not the position under s.107 and 108 of the 1994 South Australian Act.

It seems that the South Australian Parliament anticipated this conclusion.  Parliament sought to overcome its effect by inserting s.111(2) into the 1994 Act.  Naturally enough, the present respondents rely heavily on that subsection.  They wave it, like a magic wand, at all objections to the adequacy of Part 6, considered as an alternative to the Commonwealth Act.  But the effect of the subsection is obscure.  It is uncertain whether subs.(2) must be read with subs.(3), as counsel for the Attorney General tentatively suggested, so that the Part  is to be applied subject to modifications only where, and to the extent that, the South Australian Industrial Court has made a declaration under subs.(3).  Such an interpretation would involve the unusual course of a delegation of legislative power by Parliament to the Court.  However, on any view, this appears to be permitted by subs.(3) and (4); and this interpretation would, at least, provide certainty of application.  The declaration under subs.(3) would have the force of law under subs.(4) and operate in the same way as a statutory amendment to Part 6.  But the Court has not yet made a declaration under s.111(3).  It follows that, if this is the proper interpretation of the sub-section, the inadequacies arising out of ss.107 and 108 remain unaddressed.

It is understandable that, in this situation, the present respondents contend that s.111(2) should be read as conferring on the Commission, and on any member of the Commission hearing an application under Part 6, an independent ambulatory power to vary the terms of Part 6 to the extent necessary to provide to the particular applicant an alternative remedy that is equivalent to that provided by the Commonwealth Act.  However, this interpretation would allow members of the Commission to rewrite the Part on a case by case basis.  On that interpretation, if they properly understood what they were required to do, Commission members would not ask themselves the question posed by s.107, "whether, on the balance of probabilities, the dismissal was harsh, unjust or unreasonable", but whether it was unlawful under the Commonwealth Act.  Commission members would then instruct themselves that, if the dismissal satisfied that test, rather than the test stated in the opening words of s.107, they were empowered to make one of the orders stated in s.108.  The situation only has to be stated for its absurdity to become apparent.  Whatever function (if any) s.111(2) can legitimately fulfil, it cannot be permitted to overrule the fundamentals of the Part.  That would be a subversion, not a modification, of its provisions.

If it had been the intention of the South Australian Parliament, in enacting the 1994 Act, to bring South Australian law into line with that of the Commonwealth, in the sense of providing a similar remedy for people whose employment was terminated in circumstances that would contravene the standards imposed by the Termination of Employment Convention, Parliament could have given effect to that intention by enacting legislation mirroring the Commonwealth Act.  It did not do this.  Instead it chose to retain the concepts inherent in s.31 of the 1972 Act, concepts that fell short of those adopted in the Termination of Employment Convention. But Parliament seems to have been unhappy about the results of that choice; namely, that this would not give dismissed employees a remedy equal to that provided by the Commonwealth Act and would not deprive this Court of jurisdiction in relation to employees working under South Australian awards. It seems that s.111(2) was inserted in the Act in an attempt to avoid those results. For the reasons we have indicated, the attempt fails; but it still remains open to the South Australian Parliament, if it wishes, to achieve its objectives by enacting legislation that genuinely replicates the remedies available under the Commonwealth Act. If it takes this course, s.170EB will apply to cases falling within the terms of the legislation. It does not apply to the current legislation.

Having regard to our conclusion about the nature of the issue that the South Australian Commission has to address under Part 6, compared with the nature of the issue that arises in an application in this Court under Division 3 of Part VIA of the Commonwealth Act, it is unnecessary for us to deal with Mr Hannon's subsidiary points; discretion as to remedy, costs rules and onus of proof.

I hereby certify that the preceding forty (40) pages is a true
copy of the Reasons for Judgment of the Court.
Associate:
Dated:     25 May 1995
  APPEARANCES
SI.258 of 1994 and SI.259 of 1994

Counsel for the Applicant:     J R Rau

Solicitor for the Applicant:        Johnston Withers

Counsel for the Respondent:         G D Coppola

Solicitor for the Respondent:       Kelly & Co

Counsel for the Attorney-General
of South Australia:                 J J Doyle QC and J Hankin
Solicitor for the Attorney-General
of South Australia:                 Crown Solicitor

SI.1018 of 1995

Counsel for the Applicant:     P Hannon

Solicitor for the Applicant:        Duncan & Hannon

Counsel for the Respondent:         T L Stanley

Solicitors for the Respondent:  Thomsons

Counsel for the Attorney-General
of South Australia:                 J J Doyle QC and J Hankin
Solicitor for the Attorney-General
of South Australia:                 Crown Solicitor

Date of Hearing:  5 April 1995

IN THE INDUSTRIAL RELATIONS COURT    )
  )    SI No. 258 of 1994
OF AUSTRALIA  )    SI No. 259 of 1994
  )    SI No. 1018 of 1995
SOUTH AUSTRALIA DISTRICT REGISTRY    )

B E T W E E N:

NEVILLE FRYAR
  Applicant

- and -

SYSTEMS SERVICES PTY LTD
  Respondent

AND

GRAEME SIMPSON
  Applicant

- and -

SYSTEMS SERVICES PTY LTD
  Respondent

AND
  GEOFFREY ROBERTS
  Applicant

- and -

SA ST JOHN AMBULANCE SERVICE INC
  Respondent

CORAM:     WILCOX CJ, GRAY AND BEAZLEY JJ

PLACE:     SYDNEY (HEARD IN ADELAIDE)

DATE: 25 MAY 1995

REASONS FOR JUDGMENT

GRAY J.

The facts, the relevant legislation and the arguments of counsel for all parties and the intervener in these three cases are set out in detail in the joint reasons for judgment of the learned Chief Justice and Beazley J.  It is unnecessary for me to repeat any of them.

I adhere to what I said in Liddell v. Lembke (1994) 127 A.L.R 342, at pp. 365-371. Some of the issues raised by the present cases also arose in that case. There are also some issues which are peculiar to these three cases. I deal with all of the issues as follows.

Which Act applied to Mr. Fryar and Mr. Simpson?

It must be remembered that the cases of Mr. Fryar and Mr. Simpson are appeals from a judgment and orders of von Doussa J, given on 28th October 1994.  The issue, therefore, is whether an adequate alternative remedy was available to those two employees at that date.  In each of those cases, the employee had been given notice of dismissal which had not expired by 28th October.  Each employee was working out his period of notice.

It appears to have been assumed in argument before von Doussa J that pt. VI of ch. 3 of the Industrial and Employee Relations Act 1994 (SA) ("the present State Act") applied to each of those cases.  The present State Act came into operation on 8th August 1994, some months after each of Mr. Fryar and Mr. Simpson was given notice of dismissal.  At the time of the giving of notice, s. 31 of the Industrial Relations Act 1972 (SA) ("the former State Act") was in operation.  That section gave to an employee the right to apply for relief "where an employer dismisses an employee" and permitted the application to be made "within 21 days after the dismissal takes effect". 

In fact, each of Mr. Fryar and Mr. Simpson had commenced a proceeding pursuant to s. 31 of the former State Act prior to 8th August 1994.  Each of those proceedings is still pending.  By virtue of cl. 8(3) of schedule 10 of the present State Act, the substantive law in force when the cause of action arose is to be applied to a proceeding which had been commenced before the present State Act came into force.  In the context of the legislation, I do not think that the phrase "cause of action" should be given some technical meaning; it must include the right to institute a proceeding of a kind provided for in the legislation, not necessarily in a court.

The existence and effect of the two proceedings commenced under the former State Act seem not to have been adverted to in argument before von Doussa J.  I am of the view that the question whether each of Mr. Fryar and Mr. Simpson had available to him an adequate alternative remedy to that provided by sub-div. C of div. 3 of pt. VIA of the Industrial Relations Act 1988 ("the federal Act") raises the issue whether such a remedy is available to each of them in the existing proceedings under the former State Act.

The contrary view appears to rest upon the proposition that a passage in the judgment of Bray CJ in R. v. Industrial Court of South Australia; ex parte General Motors Holdens Pty. Ltd. (1975) 10 S.A.S.R. 582, at p. 586 ("Gnatenko's case") governs the construction of that provision with respect to the time within which an application could be made.  The passage is set out in the joint reasons for judgment of Wilcox CJ and Beazley J and I need not repeat it.  In it, Bray CJ was drawing the distinction between an application by an employee claiming that he or she had been dismissed and an application claiming that a purported dismissal was invalid and therefore ineffective.  His Honour was merely pointing out that s. 31 of the former State Act gave jurisdiction to deal with an application only in cases in which there had been a dismissal; it did not give jurisdiction in cases in which there had been a purported, but ineffective dismissal, which the employee concerned had not accepted as bringing about the end of his or her contract of employment.  In the latter class of cases, so his Honour said, it was necessary to apply to a court of equity; the jurisdiction given by s. 31 of the former State Act would not be available.

What Bray CJ said was unexceptionable.  It has been misunderstood and mistakenly applied by the former South Australian Industrial Commission as authority for the proposition that no proceeding could be commenced under s. 31 of the former State Act until after any notice of dismissal had expired.  See Zubrinich v. Pasminco Metals-BHAS Pty. Ltd. (1994) 61 S.A.I.R. 154.  In other words, so the former Industrial Commission said, a proceeding under s. 31 of the former State Act could only be commenced in the case of a dismissal on notice within the time interval that began at the expiration of the notice and expired 21 days later.

This was a misconstruction of s. 31.  A dismissal on proper notice is a dismissal when the notice is given, not when it expires.  The giving of notice by one party to a contract, in accordance with the terms of the contract, is an irrevocable act.  Once such notice is given, it will operate inexorably and the contract will come to an end at its expiration.  The party who has given the notice cannot withdraw it.  The other party cannot refuse to accept it.  Proper notice is not merely a warning that some action will be taken at the end of the notice period, it is itself the act which operates to bring about the end of the contract when the notice expires.  If the parties agree that their relations should continue, such agreement will amount to a new contract.  See generally Birrell v. Australian National Airlines Commission (1984) 5 F.C.R. 447, at pp. 457-459.

The giving of notice which is inadequate, either according to the terms of the contract or according to some overriding legal obligation, will not of itself operate to bring the contract to an end.  It may, however, be an act evincing an intention on the part of the person giving the notice no longer to be bound by the contract.  The other party then has the option of ignoring the purported notice or accepting it as a repudiation of the contract.  Such an acceptance will itself bring about the end of the contract.  See Turner v. Australasian Coal and Shale Employees' Federation (1984) 6 F.C.R. 177, at pp. 189-193. If the repudiation is not accepted as bringing about the end of the contract, there is no "dismissal". What Bray CJ said in Gnatenko's case is then applicable.  If the repudiation is accepted, it may be that the dismissal both occurs and "takes effect" when the employee accepts the repudiation as bringing about the end of the contract.  In this respect, it may be necessary to construe the word "dismissal" in s. 31 of the former State Act differently from the word "termination" in div. 3 of pt. VIA of the federal Act, which must be construed as meaning "termination at the initiative of the employer".  See Association of Professional Engineers, Scientists and Managers Australia v. Skilled Engineering Pty. Ltd. (1994) 122 A.L.R. 471, at pp. 481-482.

The notice given to each of Mr. Fryar and Mr. Simpson appears to have been more than adequate to satisfy any legal obligation as to notice on the part of their employer.  It therefore constituted a dismissal, which, in each case, gave rise to a right of the employee to make an application pursuant to s. 31 of the former State Act.  Such an application could be made at any time up to 21 days after the notice expired.  The expiration of the notice was the time when the dismissal "took effect" for the purposes of s. 31.  In this respect, I regard the view expressed tentatively by von Doussa J as correct, except that I regard his Honour's implied criticism of Bray CJ as unnecessary.  As I have said, Bray CJ was not seeking to define the word "dismissal" in terms of the operation of the time limit in s. 31 of the former State Act.  The correctness of Bray CJ's reasoning can be accepted consistently with the view that the purpose of s. 31 of the former State Act is advanced by construing it to permit the making of an application at any time between the dismissal (in this case the giving of notice) and the expiration of 21 days after the taking effect of the dismissal (in this case the expiry of the notice).  I am aware that von Doussa J was expressing his views with respect to the similar wording of the present State Act, but his reasoning is equally applicable to s. 31 of the former State Act and is correct, in my view.

It follows that the applications made by Mr. Fryar and Mr. Simpson under the former State Act were valid and the issues of what relief should be granted to them fell to be determined in accordance with the former State Act.  Even if they had withdrawn those proceedings and commenced new ones under the present State Act, a course which would have been open to them at any time up to 14 days after the expiration of the notice periods, their rights would still have been determined in accordance with s. 31 of the former State Act.  This is the effect of cl. 8(3) of schedule 10 to the present State Act, which provides that the substantive law in force when the cause of action arose is to be applied to a cause of action that arose before the commencement of the present State Act.  In the case of each of Mr. Fryar and Mr. Simpson, his cause of action arose upon his employer dismissing him.  As I have said, his employer dismissed him by giving him proper notice of dismissal.  It was, therefore only by a comparison of s. 31 of the former State Act with the relevant provisions of the federal Act that any determination could be made whether each of Mr. Fryar and Mr. Simpson had available to him an adequate alternative remedy.

Was there an adequate alternative remedy?

It is clear that neither s. 31 of the former State Act, nor pt. 6 of ch. 3 of the present State Act (which applies in the case of Mr. Roberts), provides an adequate alternative remedy for the purposes of s. 170EB of the federal Act. I do not repeat the analysis of s. 170EB which is set out in my reasons for judgment in Liddell v. Lembke (above), at pp. 365-366. It is sufficient to say that the remedies provided by both the former State Act and the present State Act cannot be described as "adequate" when compared with the provisions of the federal Act, even if they could be so described when compared with the provisions of the Termination of Employment Convention ("the Convention").  The reasoning is the same as that which was applied in Liddell v. Lembke. The task which was given to the Industrial Commission under s. 31 of the former State Act and the task which is given to the Industrial Relations Commission of South Australia under s. 107 of the present State Act, is a qualitatively different task from that performed by this Court in a proceeding commenced under s. 170EA of the federal Act. Both the former State Act and the present State Act require the Commission to form a view on whether the dismissal concerned was harsh, unjust or unreasonable. Only if it so concludes, can the Commission proceed to consider the question of remedies. The task is, therefore, to consider all of the circumstances of a dismissal and to decide whether, on balance, those circumstances are such as to make the description "harsh, unjust or unreasonable" applicable. This is essentially the same task as that performed by the Industrial Commission of New South Wales under the legislation considered in Liddell v. Lembke.

The requirement of s. 107(3) of the present State Act that the Commission "have regard" to the Convention and to the rules and procedures for termination of employment prescribed by or under schedule 8 to the present State Act do not affect the substance of the Commission's duty.  Those provisions only expressly require the Commission to take into account the Convention and the statutory rules and procedures as part of the circumstances which it considers.  It is plain that the Commission could reach the conclusion that a dismissal offended one or more of the requirements of the Convention, or of the rules and procedures in schedule 8, but nonetheless was not harsh, unjust or unreasonable when considered in the light of all of the circumstances.

This Court, when dealing with a proceeding commenced under s. 170EA of the federal Act, exercises a totally different function. It is required by s. 170EE to determine whether a contravention of certain provisions of division 3 of pt. VIA of the federal Act has occurred. If such a contravention has occurred, it is required to proceed to deal with the question of remedies.

In respect of many of the provisions of sub-div. B of div. 3 of pt. VIA, no issue at all will arise as to whether a termination was harsh, unjust or unreasonable.  No such issue arises where it is found that an employer has terminated an employee's employment for reasons related to the employee's conduct or performance, without giving the employee the opportunity to defend himself or herself against the allegations made, in contravention of s. 170DC.  Nor will any such issue arise if the contravention involves termination for one or more of the reasons, or for reasons including one or more of the reasons, set out in s. 170DF.  The same applies to a termination in contravention of s. 170DG, because it is in contravention of an order in force under s. 170FA of the federal Act. 

The only circumstance in which the Court will be called upon to determine whether a termination was harsh, unjust or unreasonable is if the employer advances what would otherwise be a valid reason for the termination.  In such a case, a finding that the termination is harsh, unjust or unreasonable invalidates the reason.  Such a finding is not the main focus of the Court's task.  It should also be noted that the existence of a valid reason, not invalidated by a finding that the termination is harsh, unjust or unreasonable, will not override a contravention of s. 170DC, 170DF or 170DG.

The former State Act and the present State Act, like their counterpart in New South Wales, operate in the realm of the "fair go all round".  This well known phrase comes from the reasons for decision of the New South Wales Industrial Commission in Re Loty and Holloway and Australian Workers' Union [1971] A.R. (NSW) 95, at p. 99. That is not a realm which this Court inhabits. The provisions of div. 3 of pt. VIA of the federal Act are not directed to achieving some balance between the interests of employers and employees in particular cases. They constitute a charter of rights for employees. They are directed towards the protection of the existing jobs of employees. Thus, once the Court finds that a contravention has occurred it must proceed to deal with the question of remedies. If there is any discretion not to reinstate the employee in accordance with s. 170EE(1)(a), it is a discretion of the most minimal kind. Only if reinstatement is impracticable is the Court permitted to consider the question of compensation. As to the meaning of "impracticable", I adhere to what I said in Liddell v. Lembke, at p. 367.

Remedies of the kind which can be granted by this Court may not suit the wishes of all employees whose employment has been terminated. Such employees may not wish to be reinstated, and may be unwilling to undertake the burden of establishing that reinstatement is impracticable, in order to obtain compensation. They may prefer provisions of the kind found in s. 108 of the present State Act, under which the Commission may decline to order re-employment if it would not be an appropriate remedy, either because it would be impracticable or for some other reason. The pursuit of the remedy of compensation will be easier in this sense. Some employees may prefer to have the circumstances of their dismissals dealt with by a Commission which is not bound by the rules of evidence and which is able to proceed with less formality than a Court. Employees in such cases are able to choose to proceed under the present State Act, rather than under the federal Act. This does not mean, however, that any employee who chooses to apply to this Court under s. 170EA of the federal Act has available to him or her an adequate alternative remedy under the present State Act. The opposite is the case, for the fundamental reason that the present State Act requires the Commission to undertake a task which is different in substance from that required of this Court by the federal Act.

The question of time in the Roberts case.

It is common ground that Mr. Roberts can no longer commence a proceeding under the present State Act in respect of his dismissal, without seeking the exercise of the discretion, given to the Industrial Relations Commission of South Australia by s. 167(1) of the present State Act, to extend the time limit imposed by s. 105(1).  Mr. Roberts's employer has sought to strengthen its position by undertaking to consent to the extension of the time limit in the event that this Court dismisses the application made by Mr. Roberts.  The giving of such an undertaking, whilst no doubt rendering it more likely that the Industrial Relations Commission would exercise its discretion favourably to Mr. Roberts, cannot provide the certainty required to give Mr. Roberts an adequate alternative remedy at the present time.  Without such certainty, even if the present State Act were such as to offer an adequate remedy, it would not be "available" to Mr. Roberts.

Other factors.

As was the case in Liddell v. Lembke, at pp. 370-371, I am of the view that the present State Act contains provisions which would operate to make the remedy offered by that act less than an adequate alternative, even if there were not the qualitative difference between the functions of the Industrial Commission of South Australia and this Court to which I have referred. In this case, those factors include the absence of any provision comparable with s. 170EDA of the federal Act, under which the employer bears the onus of proof on certain issues.

The present State Act also contains some provisions which are disadvantageous to an employee, when compared with the provisions of the federal Act. One is s. 105(3) of the present State Act. This creates a statutory election on the part of the employee to pursue the remedy provided by the present State Act, to the exclusion of other remedies that may be available on the same facts, and a statutory estoppel from taking proceedings for remedies based on the same facts unless proceedings under the present State Act fail for want of jurisdiction. The federal Act contains no similar provisions; indeed, there is available to an employee who invokes s. 170EA of the federal Act the additional jurisdiction given by s. 430 of the federal Act. Section 109 of the present State Act puts the employee at greater risk of an order for costs against him or her than is the case under s. 347 of the federal Act. A provision similar to s. 109 was found in s. 31(5) of the former State Act.

Section 111 of the present State Act.

Section 111 of the present State Act appears to be an attempt by the South Australian parliament to ensure that, as a last resort, the remedies given by pt. VI of ch. 3 of the present State Act will constitute an adequate alternative remedy for the purposes of s. 170EB of the federal Act in all cases. The attempt fails, not only in the relation to the present cases, but altogether.

I am unable to accept the construction of s. 111 advanced by counsel for the employers in the present cases.  That was a construction which focussed on subs. (2) as a provision independent of subss. (3) and (4).  This construction would require that any person reading pt. VI of ch. 3 of the present State Act for any purpose should read it notionally, not as it is, but as it would be modified to the extent necessary to provide an adequate alternative remedy.  Thus, not only the Industrial Relations Commission of South Australia would be required to read it in that fashion, but every employer desiring to dismiss an employee without the risk of legal proceedings and every dismissed employee contemplating taking legal proceedings would be required so to read it.  This result would be so onerous that it is extremely unlikely to have been intended by the South Australian legislature.

The only way in which sense can be made of s. 111 is to read it as a whole. Subsection (1) discloses the intention of parliament to give effect to the Convention. Subsection (2) requires modifications so as to make pt. VI of ch. 3 of the present State Act an adequate alternative remedy for the purposes of s. 170EB of the federal Act. Subsection (3) prescribes the machinery under which such modifications are to be laid down; the Industrial Court of South Australia, on application by the Minister administering the present State Act, is to declare the necessary modifications. Subsection (4) then gives legislative force to the modifications so declared. In other words, the intention is that the only modifications which are to operate are those which have been declared under subs. (3). On this construction, subs. (2) merely announces the purpose for which the modifications are to be made; it does not impose an independent duty on every reader of the present State Act to decide which modifications are necessary.

The Industrial Court of South Australia has not declared any modifications under s. 111(3) of the present State Act.  Part VI of ch. 3 of the present State Act must therefore be read in its unmodified form.

Because of the qualitative difference between the function given to the Industrial Commission of South Australia by s. 107(1) of the present State Act and the function given to this Court by s. 170EE of the federal Act, it is impossible for s. 111 of the present State Act to operate according to its terms. Part VI of ch. 3 of the present State Act would require more than "modifications", in order to transform it into legislation providing an adequate alternative remedy for the purposes of s. 170EB of the federal Act. It would require abandonment of the essential scheme chosen by the South Australian legislature, under which the Commission is required to consider all the circumstances of a dismissal and decide whether the dismissal is harsh, unjust or unreasonable. It would require the substitution of the scheme of the federal Act, which requires this Court to determine whether there has been a contravention of certain specified provisions. The changes required would be so drastic as to fall well outside any reasonable meaning which could be given to the word "modifications".

In any event, s. 31 of the former State Act contained no equivalent of s. 111 of the present State Act, which is therefore irrelevant to the cases of Mr. Fryar and Mr. Simpson.

Conclusion.

For the foregoing reasons, I concurred in the making of the orders which were made in these three cases on 5th April 1995.

I certify that this and the preceding sixteen (16) pages are a true copy of the reasons for judgment of his Honour Justice Gray

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