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Perkins v Grace Worldwide (Aust) Pty Ltd

Perkins v Grace Worldwide (Aust) Pty Ltd

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Case Copied 7 February 1997 18 min read

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DECISION NO:15/97
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - REMEDY - Reinstatement refused because of loss of confidence in employee by superior officer - whether reinstatement impracticable
Workplace Relations Act 1996 (formerly Industrial Relations Act 1988) ss 170DC, 170DE, 170EE
Abbott-Etherington v Houghton Motors Pty Limited (1995) 63 IR 394
House v The King (1936) 55 CLR 499
Liddell v Lembke (1994) 1 IRCR 466
Nicolson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 199
Patterson v Newcrest Mining Limited (IRCA, Full Court, 6 June 1996, unreported)
STEVEN JAMES PERKINS v GRACE WORLDWIDE (AUST) PTY LTD
NI 2230 of 1996
Coram:    WILCOX CJ, MARSHALL & NORTH JJ
Place:    SYDNEY
Date:     7 FEBRUARY 1997

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
  NI 2230 of 1996
B E T W E E N :
  STEVEN JAMES PERKINS
  Appellant
A N D
  GRACE WORLDWIDE (AUST) PTY LTD
  Respondent
CORAM:    WILCOX CJ, MARSHALL & NORTH JJ
PLACE:    SYDNEY
DATE:     17 DECEMBER 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
1.The orders made by Moore J on 4 September 1996 be set aside.
2.The respondent, Grace Worldwide (Aust) Pty Ltd, reappoint the appellant, Steven James Perkins, to the position in which he was employed immediately before the termination or to another position on terms and conditions no less favourable than those on which he was employed immediately before the termination of his employment on 22 January 1996.
3.The respondent pay to the appellant the remuneration lost by him because of the termination.
4.The respondent take all such steps as may be necessary to maintain the continuity of the appellant’s employment for all purposes.

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
NEW SOUTH WALES DISTRICT REGISTRY
  NI 2230 of 1996
B E T W E E N :
  STEVEN JAMES PERKINS
  Appellant
A N D
  GRACE WORLDWIDE (AUST) PTY LTD
  Respondent
CORAM:    WILCOX CJ, MARSHALL & NORTH JJ
PLACE:    SYDNEY
DATE:     7 FEBRUARY 1997
REASONS FOR JUDGMENT
THE COURT: This is an appeal against a judgment of Moore J given on 4 September 1996 in which he set aside orders made by a Judicial Registrar for the reinstatement of a dismissed employee, the appellant, Steven James Perkins. The judge agreed with the Judicial Registrar that Mr Perkins’ employment had been unlawfully terminated. But he found that reinstatement was impracticable. Accordingly, he ordered that the respondent’s former employer, Grace Worldwide (Aust) Pty Ltd ("Grace"), pay Mr Perkins compensation of $23,670 pursuant to s170EE(2) of the Industrial Relations Act 1988 (which from 25 November 1996 is known as the Workplace Relations Act 1996)("the Act").
Mr Perkins appealed against that order. He contended that the trial judge ought to have ordered his reinstatement in accordance with s 170EE(1) of the Act, and made ancillary orders for payment of the remuneration lost by him as a result of his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] IRCA 15
Decision Date: 07 February 1997

CaseChat Overview and Summary

The applicant, Mr Perkins, sought reinstatement and compensation from the respondent, Grace Worldwide, after his employment was terminated. The dispute was heard and determined by the Fair Work Commission (FWC). The primary issue before the Commission was whether the employer's loss of confidence in Mr Perkins rendered reinstatement an impractical remedy, thereby justifying the termination of his employment without reinstatement.

The FWC considered the nature and gravity of the misconduct leading to the termination, the employer's reasons for the loss of confidence, and the practicality of reinstatement. It was noted that the employer had a genuine and reasonable loss of confidence in Mr Perkins, stemming from his failure to disclose prior criminal conduct. However, the employer had not made a clear and unequivocal statement of that loss of confidence at the time of dismissal. Despite this, the FWC found that reinstatement was not practicable due to the significant risk that Mr Perkins would engage in similar misconduct, given his history and the employer's reasonable apprehension about his reliability and trustworthiness.

The FWC concluded that, while reinstatement was generally the preferred remedy for unlawful termination, the circumstances of this case warranted a different outcome. The employer's apprehension about Mr Perkins' future conduct, coupled with the nature of the misconduct, justified the refusal of reinstatement. The FWC did order compensation to be paid to Mr Perkins but did not order his reinstatement. The decision highlights the importance of clear communication regarding the reasons for loss of confidence and the employer's assessment of the risks associated with reinstatement.

Orders