Patterson v Newcrest Mining Limited

[1996] IRCA 299

DECISION NO:  299/96

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - CLAIM OF UNLAWFUL TERMINATION - REMEDY - Applicant at risk of injury if returned to his previous employment - No other position available with respondent - Whether reinstatement was impracticable

Industrial Relations Act 1988, s. 170EE

JAMES PATTERSON v. NEWCREST MINING LIMITED

No. WI 196/1012

CORAM:    WILCOX CJ, von DOUSSA AND NORTH JJ
PLACE:    Sydney
DATE:     6 June 1996

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA  )      No. WI 196/1012
NEW SOUTH WALES DISTRICT REGISTRY)

BETWEEN:  JAMES PATTERSON

Appellant

AND:NEWCREST MINING LIMITED

Respondent

CORAM:    WILCOX CJ, von DOUSSA AND NORTH JJ
PLACE:    SYDNEY
DATE:     6 JUNE 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.  

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. WI 196/1012
NEW SOUTH WALES DISTRICT REGISTRY)

BETWEEN:  JAMES PATTERSON

Appellant

AND:NEWCREST MINING LIMITED

Respondent

CORAM:    WILCOX CJ, von DOUSSA AND NORTH JJ
PLACE:    SYDNEY
DATE:     6 JUNE 1996

EXTEMPORE REASONS FOR JUDGMENT

WILCOX CJ: This is an appeal against a decision of a Judge of the Court, Marshall J, in an unlawful termination claim. The sole matter with which we are concerned is whether his Honour erred in declining to accede to the application of the appellant, James Patterson, for an order for his reinstatement in the employment of the respondent, Newcrest Mining Limited, pursuant to s. 170EE(1) of the Industrial Relations Act 1988.

His Honour dealt with the matter in December 1995, before commencement of the amendments that took effect on 15 January 1996 and which amended that subsection and, also, subs. (2).  The subsections as they now read are as follows; the words added last January being underlined:

"In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may, if the Court considers it appropriate in all the circumstances of the case, make the following orders:

(a)an order requiring the employer to reinstate the employee by:

(i)reappointing the employee to the position in which the employee was employed immediately before the termination; or

(ii)appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination; and

(b)if the Court makes an order under paragraph (a):

(i)any order that it thinks necessary to maintain the continuity of the employee's employment; and

(ii)an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination.

170EE(2)   If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may, if the Court considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate."

There is question whether this Court, in disposing of the appeal, must have regard to the January 1996 amendments.  A similar issue arose before another Full court in Anthony Smith and Associates Pty Limited v Sinclair. (Wilcox CJ, Moore and Marshall JJ, 22 April 1996, not yet reported.) In that case the Court found it unnecessary to reach a concluded view concerning the application of the amendments because it took the view that, even if the amendments applied, the order for reinstatement made by the primary judge ought to be upheld. The word "impracticable" has caused difficulty in relation to unlawful termination claims. It appears in subs. (2) and has led Judges of the Court, including myself, to describe the scheme of s. 170EE as one providing a primary remedy of reinstatement and a secondary remedy of compensation where reinstatement is impracticable. These comments must be read in the light of the amendments, where they apply, requiring the Court to reach a determination that it is "appropriate in all the circumstances of the case" to order reinstatement. Contrary to the submission put by counsel for the appellant, it is my opinion that the matter of appropriateness, where that concept applies, is not restricted to the form of a reinstatement but applies to the initial question whether reinstatement shall be ordered or not.

It is not necessary to determine the application of the amendments in this case.  In my view, on the evidence before him his Honour was correct in taking the view that it was impracticable to order Mr Patterson's reinstatement in employment with the respondent.  

The respondent is a mining company operating in a remote part of Western Australia.  For a number of years, Mr Patterson worked in the light vehicles workshop, undertaking light duties.  He was able to do this, at least in his opinion, before his termination.  There was evidence, and indeed it was common ground at the hearing before his Honour, that the appellant was fit at the time of the hearing.  However, that was after a gap of over 12 months since he last worked.  And there was evidence, accepted by his Honour, that Mr Patterson faced a substantial risk of injury if he returned to his previous position.  Dr P.A. Connaugh, who was accepted by his Honour as having a good knowledge not only of Mr Patterson but the circumstances under which he was working, said:

I think he is at a very high and very significant risk of further injury if he returns to work.

In saying this, he took into account Mr Patterson's past history, his age, x-rays and functional capacity evaluation results and, specifically, the increasing symptoms he had reported early in 1994; that is to say, shortly before termination of his employment.  During the hearing of this appeal, counsel for the appellant indicated that his client accepted that there was evidence of a real risk of injury if he was reappointed to his former position.  Counsel indicated that he could not challenge a finding to that effect, although he quite properly pointed out that a finding of a real risk of injury did not mean that there was a certainty of injury and, of course, said nothing about the time when it might happen.  Counsel also indicated that he accepted the view of the primary Judge that there was no other position available in the employment of the respondent to which it would be practicable to appoint Mr Patterson.

As it seems to me, this means that, in making a reinstatement order, the Court would be taking a course which involved it in accepting a real risk of injury.  If one uses the language of Dr Connaugh, the risk is very high.  It seems to me that such a course is impracticable.  I do not think it is necessary to review the various statements in the cases as to the meaning of the word "impracticable".  I am content to adhere to what I said in Nicolson v Heaven and Earth Gallery Pty Limited (1994) 126 ALR 233 at 244. I do not think what I there said is inconsistent with what Keely J and I said in Liddell v Lembke (1994) 127 ALR 343 at 360. The requirement to consider the impracticability of reinstatement necessarily requires the Court to have regard to all the relevant circumstances of the case relating to the employer and the employee; as I said in Nicolson, to evaluate the practicability of a reinstatement order in a commonsense way.

I share the sympathy expressed by Marshall J at Mr Patterson's position.  He has lost his job because of the consequences of an injury that he sustained in the course of his employment.  It appears that he has struggled over a number of years to maintain his employment despite significant injuries.  Anybody would have sympathy for him; but I think it is quite impracticable, and in defiance of common sense, for the Court to order that he be taken back to a job that will involve him in a real risk of injury.  Nothing is to be gained by assessing degrees of injuries or speculating when an injury might occur.  It would simply be irresponsible of the Court knowingly to put the appellant in that position or to require the respondent to accept that risk.

In my view, the order made by the primary judge reflected a proper appreciation of the course to be taken in respect of remedy.  I would dismiss the appeal. 

VON DOUSSA J: I agree with the reasons of the Chief Justice. In particular I agree with the construction which the Chief Justice places on the word "impracticable" in s. 170EE. I, too, have sympathy for the position of the appellant. This is a case where the medical evidence establishes a clear picture of a serious medical condition of advanced degeneration in the spine and a picture of increasing symptoms of pain and discomfort and disability that was becoming more and more pronounced as the year 1994 progressed. I, too, agree that the appeal should be dismissed.

NORTH J:   I agree that the appeal should be dismissed.  In my view, it is unnecessary in this case to resolve any differences in the authorities on the meaning of the word "impracticable."  In my view, the amendments to the section apply and the matter is resolvable by reference to the additional words inserted by the amendment.

WILCOX CJ:   The order of the Court will be that the appeal be dismissed.  We thank counsel for co-operating in arranging this video hearing which has enabled us to bring the matter on earlier than would otherwise have been possible.  

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of the members of the Court.

Associate:

Dated:

APPEARANCES

Counsel for the Appellant:     M E Herron

Solicitor for the Appellant:        Gibson & Gibson

Counsel for the Respondent:         H J Dixon

Solicitor for the Respondent:       Jackson McDonald

Date of hearing:  6 June 1996