Paul L Quinlivan v Norske Skog Paper Mills (Australia) Ltd
[2010] FWA 1166
•15 FEBRUARY 2010
[2010] FWA 1166 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Norske Skog Paper Mills (Australia) Ltd
(U2009/12027)
VICE PRESIDENT LAWLER | MELBOURNE, 15 FEBRUARY 2010 |
Unfair dismissal – reinstatement – meaning of “position” in s.391.
[1] On 8 February 2010 I delivered a decision upholding the applicant’s application for an unfair dismissal remedy, finding that his termination was harsh. 1 I noted the orders that I proposed to make:
[52] I propose to issue orders that:
• the applicant be reinstated to the position in which he was employed immediately before the dismissal;
• the applicant’s continuity of employment and period of continuous service with the respondent be maintained; and
• the respondent pay to the applicant a sum pursuant to s.391(3) representing a restoration of lost pay, assessed in accordance with the matters specified in s.391(4), for the period 7 December 2009 until the actual reinstatement of the applicant.
[2] A lack of information necessary to make an accurate quantification of the proper amount to order pursuant to s.391(3), including in particular a lack of information to make an accurate quantification of the amounts referred to in s.391(4), led me to refrain from making orders at the time the decision was handed down. I noted:
[55] In the circumstances, on balance, although it would be open to me to do so, I do not propose to attempt a quantification of the amount of the order pursuant to s.391(4) without further resort to the parties. Rather, I will give the parties a short period in which to agree the date that reinstatement is to take effect and the amount of the foreshadowed order pursuant to s.391(3). In the event that the parties are unable to reach agreement on those matters by the close of business on 12 February 2010 the matter will be listed for a further hearing by telephone on Monday 15 February 2010 at 2.00pm for the purpose of establishing the precise level of the applicant’s usual earnings and the amount of any income earned from other employment since 24 December 2009 with a view to orders being issued on that day with reinstatement to take effect on Wednesday 17 February 2010.
[3] The parties have been able to agree that the reinstatement order should take effect today and they have agreed the quantum of the order pursuant to s.391(3) representing a restoration of lost pay, assessed in accordance with the matters specified in s.391(4), for the period from 7 December 2009 until the actual reinstatement of the applicant.
[4] There is a debate over the terms of actual reinstatement order itself. By letter dated 9 February 2010 the solicitor for the respondent noted:
“Our client is concerned that the order proposed by His Honour may be taken to mean that Mr Quinlivan must be reinstated as an operator working in the Recycle Fire plant warehouse” (being the substantive role that the applicant was performing at the time of his dismissal).
[5] The letter recorded the respondent’s concern that this role from which the applicant was dismissed was largely unsupervised, the concerns of a relevant manager, Mr Burles, his evidence that it would only be a matter of time before the applicant committed another safety breach. On this basis, the respondent proposed that the applicant be assigned to a paper machine in a role that had the same classification as his role in the warehouse, Operator Level 5, so that he could be subject to closer supervision. Accordingly, the respondent sought a variation to the proposed reinstatement order to read:
The applicant be reinstated with the respondent to a position of level 6 (sic) operator.
[6] I observe that the reinstatement order that I foreshadowed was expressed in the precise words of s.391(1)(a). Subsections 391(1) and (1A) provide:
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
[7] Upon reflection, in my view the reference to “position” in s.391(1) and (1A) is a reference to the particular role performed at a particular work location by the applicant at the time of his or her dismissal at a particular work location and does not refer merely to the classification occupied by an applicant at the time of his or her dismissal. I reach this view on the basis of a comparison of the language in subsections (1) and (1A).
[8] Viewed in this light, the order proposed by the respondent is certainly not an order of the sort described in s.391(1)(a) and, arguably not an order that fully meets the description in s.391(1)(b). The order substantively sought by the respondent is an order that allows the respondent to place the applicant in a role different to the role he was performing at the time of his dismissal albeit at the same classification (which, because of the terms of the prevailing workplace agreement, would mean a role with terms and conditions no less favourable than those on which the person was employed immediately before the dismissal). This is an order under s.391(1)(b) not an order under s.391(1)(a).
[9] It may be noted that while the respondent argued against a finding that the dismissal in this case was harsh, unjust or unreasonable and argued against reinstatement even if the dismissal was found to be harsh, unjust or unreasonable, it made no submissions arguing against reinstatement under s.391(1) in the event that the tribunal determined that an order for reinstatement was appropriate.
[10] Mr Kennedy for the applicant objected to the order proposed by the respondent on the basis that the role on the paper machine contemplated by the respondent was, as it were, a significantly less attractive role and one that was regarded as somehow “lower” in the pecking order notwithstanding that it was a role with the same classification as the applicant’s role in the warehouse.
[11] Ordinarily, a court or tribunal will not permit a party to reagitate matters affirmatively decided in a written decision. There is nevertheless power to do so albeit that the discretion to do so should be exercised with extreme caution: there is a public interest at stake of the sort that informs the principle of Anshun estoppel, namely a public interest in the finality of litigation and an avoidance of unnecessary multiplicity of litigation.
[12] In the peculiar circumstances of this case I have decided that I should exercise my discretion to reconsider the form of the reinstatement order that is appropriate in this case. I do so because the respondent appears to have a right under its workplace agreement to transfer the applicant to another role (position) within the Operator Level 5 classification provided the duties of that new role are within “the employee’s generic stream, skills, competence and training consistent with the classification structure in the [agreement]” and not used to “promote deskilling”. The applicant’s dismissal, the hardship he has suffered on account of being unemployed for almost all of the period since his dismissal and course of these proceedings will undoubtedly have had a salutary effect on the applicant. While I will be surprised if the applicant does other than carefully observe safety policies upon his reinstatement, it seems to me that the respondent’s concern to ensure that there is appropriate supervision of the applicant is eminently reasonable, particularly given the stringency of the obligations imposed by State occupational health and safety legislation in New South Wales. If I were to reinstate the applicant pursuant to s.391(1)(a) to the role that he had at the time of his dismissal and the respondent were to then exercise its apparent rights under the workplace agreement to transfer the applicant to another role with the same terms and conditions but with greater supervision there will be an issue as to whether such transfer was contrary to the order on the basis of the reasoning in Blackadder v Ramsey Butchering Services Pty Ltd 2 with the prospect of a further dispute and further litigation. I think it better to remove that real possibility of further disputation by making the reinstatement order as an order pursuant to s.391(1)(b) to the substantive effect of that now sought by the respondent.
[13] The orders that I will make are:
1. Pursuant to s.391(1)(b) of the Fair Work Act (FW Act) that Norske Skog Paper Mills (Australia) Ltd (respondent), being the employer of Mr Paul L Quinlivan (applicant) at the time he was dismissed, reinstate the applicant by appointing the applicant to another position at the respondent’s Albury site on terms and conditions no less favourable than those on which the applicant was employed immediately before the dismissal with such reinstatement to take effect from 15 February 2010.
2. Pursuant to s.391(2), that the continuity of the applicant’s employment and the period of continuous service with the respondent be maintained.
3. Pursuant to s.391(3), that the respondent to pay to the applicant within 10 days the sum of $16,283.93 (less appropriate tax).
VICE PRESIDENT
Appearances:
Mr J Kennedy for the applicant
Mr G Jervis for the respondent
Hearing details:
2010
Melbourne (by telephone)
February 15
1 [2010] FWA 883
2 (2005) 221 CLR 539
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