Orford v Western Mining Corporation

[1996] IRCA 480

DECISION NO:480/96

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - costs

INDUSTRIAL RELATIONS ACT 1988, Sections 170 EHA, 347(1)

ORFORD V WESTERN MINING CORPORATION

SA96/1049

JUDICIAL REGISTRAR:                   L FARRELL
PLACE:  ADELAIDE
DATE:  3 OCTOBER 1996

IN THE INDUSTRIAL RELATIONS COURT          )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY          )

No. SA96/1049

B E T W E E N:

DENNIS JOHN ORFORD

Applicant

AND

WESTERN MINING CORPORATION

Respondent

MINUTES OF ORDER

BEFORE:                 JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  3 OCTOBER 1996

THE COURT ORDERS THAT:

1. The  Respondent’s Application for costs against the Applicant and the Applicant           Union is dismissed.

NOTE:            Settlement and entry of Orders is dealt with by Order 36 of the   Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT          )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY          )

No.SA96/1049

B E T W E E N:

DENNIS JOHN ORFORD

Applicant

AND

WESTERN MINING CORPORATION

Respondent

BEFORE:                  JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  3 OCTOBER 1996

REASONS FOR JUDGMENT

This is the Respondent’s application for costs against the Applicant and the Applicant Union pursuant to the provisions of Section 347 and Section170 EHA of the Industrial Relations Act.

This application follows the withdrawal of the substantive application for relief in relation to the termination of the Applicant’s employment at the commencement of the third day of the trial.   It follows some comments I made at the end of the second day of the trial to the parties regarding remedy, when it became clear that the case would take at least five and possibly six days.   I was conscious of the fact that the Applicant resides in Brisbane and would need to return to Adelaide at some time in the future for the case to conclude.   My comments were addressed to the issue of whether reinstatement  was practicable following the restructuring of the  Respondent’s business since the termination of the Applicant’s employment.   My comments were also addressed to the lack of evidence of any loss of wages that the Applicant had experienced since the termination of his employment.   The Applicant was to put in his evidence of such loss in documentary form at some stage during the hearing.   The amount of compensation that he would receive if successful may have been quite small.

At the time the substantive application was withdrawn the Applicant had given evidence and been cross examined, and one witness of the Respondent had given evidence but had not yet been cross examined.

For the Respondent to succeed in its claim for costs it must be able to demonstrate an unreasonable act or omission of the Applicant in connection with the conduct of the proceedings.

It was the Applicant’s case that he had been dismissed because he refused to sign a new contract of employment.   Tied up with that were his concerns that he was being discriminated against in relation to his marital status because he was being housed in single quarters rather than a house.

The Respondent’s case was that the Applicant had written offensive memoranda to a number of the Respondent’s managers.   As a consequence he had been advised by managers on 14 February 1996 that his memos were offensive.   The following day his employment was terminated because he refused to agree to a Behaviour Management Program.

It is important to note here that the Respondent has the onus of proving that the termination of the Applicant’s employment was for a valid reason.

Here I would need to be satisfied that the Applicant’s conduct was offensive and did in fact offend, and that the degree of offence and offensiveness was such as to warrant the termination of the Applicant’s employment.  

As I did not hear evidence from a number of the Respondent’s witnesses and the evidence of the one witness that the Respondent did call remains untested by cross examination, I am unable to draw the conclusion that the Applicant’s claim would not have succeeded. Even if I was able to draw such a conclusion it seems to me that Section 170 EHA requires some further examination of the conduct of the Applicant in pursuing his claim and some means by which I could ascribe the word “Reasonable” or “Unreasonable” to his conduct in pursuing this claim.

It seems to me that the Applicant cut his losses when he withdrew when he realised the cost of pursuing a vindication of his rights was more than any remedy would provide him.

On the evidence before me I do not think that the Applicant was unreasonable in pursuing his claim, nor do I think in the circumstances of this case that the Applicant behaved unreasonably in withdrawing the application.

The Respondent also argued that the Union had acted unreasonably.   I was advised from Bar Table that the Union had always acted on instructions from the Applicant and there was no suggestion by counsel for the Respondent that the Union had not done so.   In these circumstances I do not think any order for costs should be made against the Applicant Union.

The Respondent also argued that it was entitled, pursuant to Section 347, to its costs because the proceedings were instituted vexatiously or without reasonable cause.   I cannot accept that argument, in my view at the time he commenced his application the Applicant at the very least had an arguable claim. 

I certify that this and the preceding 2 pages are a true copy of the reasons for my judgment.

DATES OF HEARING  :          11, 12 & 13 SEPTEMBER 1996
FOR THE APPLICANT  :          MR CUNNINGHAM
FOR THE RESPONDENT                 :          MR SHORT