Raymond John Taylor v Janome Sewing Machine Co (Aust) Pty Ltd
[1994] IRCA 15
•19 Aug 1994
C A T C H W O R D S
INDUSTRIAL - respondent's motion to dismiss application - whether dispute on the facts - applicant's motion to restrain respondent from terminating applicant's employment - whether "not appropriate" to refer matter to Australian Industrial Relations Commission for conciliation.
Dey v. Victorian Railways Commissioners(1949) 78 CLR 62 at 91
Industrial Relations Act 1988 (Cth) s.170EC, 170EE
RAYMOND JOHN TAYLOR -v- JANOME SEWING MACHINE CO (AUST) PTY LTD
VI No. 551 of 1994
KEELY J.
MELBOURNE
19 August 1994
General distribution not required
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA ) VI No. 551 of 1994
)
VICTORIA DISTRICT REGISTRY )
B E T W E E N :
RAYMOND JOHN TAYLOR
Applicant-and-
JANOME SEWING MACHINE CO (AUST) PTY LTD
Respondent
REASONS FOR JUDGMENT
19 August 1994 KEELY J.
The respondent's motion, notice of which was dated 10 June 1994, sought dismissal of the applicant's application on two grounds.
One ground, supported by the affidavit of Mr Yasutoki Kozu, the managing director of the respondent, was that the termination, if any, of the applicant's employment, occurred by notice given on 30 November 1993 or, alternatively by notice given on or about 3 December 1993 and that the Industrial Relations Reform Act 1993 (the Reform Act) did not come into operation until 30 March 1994. As to that ground, I accept the submission by the applicant's counsel that, on the affidavit material before the court, there is a dispute as to whether the termination occurred on either of those dates; it may be added that the respondent's counsel said that there "is a dispute as to a number of the facts and that is of course a complication in an interlocutory proceeding".
Having regard to the existence of a dispute on the facts and of arguable questions of law, the respondent's motion must fail because it has not been shown to be "so obviously untenable that it cannot possibly succeed" or "manifestly groundless" (per Barwick CJ. in General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129). Barwick CJ. quoted the following passage from the reasons for judgment of Dixon J. in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 at 91:
"A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury."
It should be added that both counsel referred to the reasons for judgment of this court delivered by Wilcox C.J. in Siagian v. Sanel Pty Limited (1994) 122 ALR 333 and by Gray J. in the Association of Professional Engineers Scientists and Managers Australia and others v. Skilled Engineering Pty Ltd and others (1994) 122 ALR 471. It is obviously arguable that different opinions have been expressed by their Honours in those two cases.
The other ground upon which the respondent's motion was based was that termination of the employment had not yet occurred. For similar reasons to those relating to the first ground, namely, dispute as to the facts and arguable questions of law, the respondent's motion based on this ground cannot succeed. Accordingly the respondent's motion, notice of which was dated and filed on 10 June 1994, must be dismissed.
It has been held by Moore J. in Canceri v. Taylor (Matter No. NI 226 of 1994, judgment delivered 11 August 1994 in Sydney, not yet reported) that the court has power to order costs. On the material before the court it is arguable that the respondent by its motion "instituted the proceeding . . . without reasonable cause" within the meaning of s.347 of the Industrial Relations Act 1988 (Cth) (the Act). As the question of costs has not been argued, liberty will be reserved to the applicant, Mr Taylor, to apply for an order that the respondent pay his costs of and incidental to the respondent's motion.
The applicant's motion, notice of which was dated and filed 10 June 1994, sought the following orders.
That the respondent be restrained until further order from:
(a)communicating any advices to N.M. Superannuation Pty Ltd (ACN 008 428 322), as trustee of the National Mutual Simple Superannuation Fund ("the Fund"), to the effect that the applicant has retired or is to retire on 30 June 1994 or at all;
(b)taking any steps to terminate the applicant's membership of the Fund;
(c)taking any steps to obtain the release to the applicant of his vested benefit under the Fund or of such amounts as would be payable to him as in the case of his retirement on 30 June 1994.
That the respondent continue, until further order, to make contributions to the Fund in such amounts and at such times as required by the terms of the contract of employment between the applicant and the respondent, and in accordance with the requirements and terms of the Fund.
That the respondent be restrained, until further order, from reducing or withdrawing from the applicant any monetary or other benefits required to be paid or given to him under the terms of his employment with the respondent.
That the respondent be restrained, until further order, from taking any step in the recruitment, appointment or commencement of any person to occupy the position of National Credit Manager of the respondent or to perform such duties as are the duties of that position or duties substantially the same as those duties presently carried out by the applicant in the said position.
That the respondent be restrained until further order, from taking any step or steps to terminate the employment of the applicant on 30 June 1994.
An injunction pursuant to s.80 of the Trade Practices Act 1974 restraining the respondent, until further order, from terminating the employment of the applicant.
The hearing of the matter was adjourned overnight, and on the next day the respondent gave an undertaking, by its counsel, "not to terminate the employment of the applicant pending the decision of the court in relation to both notices of motion" and accepted "that all [moneys] that are properly payable in respect of the employment will continue to be paid". It had been "indicated" to the court shortly after the undertaking was first offered that "the respondent will not require the applicant to perform any duties after today [24 June 1994] pending the decision of the court in relation to both notices of motion".
The applicant's counsel informed the court that the undertaking was not acceptable to the applicant and said that "the primary concern of the applicant is to preserve the viability of reinstatement as a remedy". In answer to a question from the court the respondent's solicitor then said:
"he is still holding the job, he is still being paid in full and if your Honour determines by his notice of motion that he is to remain in employment he will return to his job. He has to return to the company; we have no alternative, sir. We are certainly not constructively dismissing him. However, in the interim the employer does not require him to perform any duties. . . . if it is of concern to the applicant that he retain the title of National Credit Manager pending the outcome of your decision . . . The replacement [officer] can simply be acting and, sort of, carrying out duties without necessarily having a title."
The matter was stood down until 2.15 p.m. and the court, after hearing further argument from the applicant's counsel, in support of an application by the applicant for an interim order that the applicant's employment not be terminated pending the determination of the motions by the applicant and the respondent, and after hearing the undertaking given by counsel on behalf of the respondent, refused the applicant's application for interim orders pending the determination of the notices of motion. The brief reasons given for that refusal were as follows:
"As you probably gather, I have considered this matter over night and again over [the luncheon adjournment] in the light of the cases cited by Mrs Moon on behalf of the respondent. I have heard what Mr Bourke has put here this afternoon. . . . I understand the applicant's concern, but in all the circumstances I do not really think it is appropriate to make an order at this stage . . . I think that the fears which Mr Bourke has expressed that may be in his client's mind probably do not pay sufficient regard to what appears to me to be the natural interpretation of the Act, all of which of course is subject to contrary contention from anyone else."
Having considered the matter since the hearing, and the transcript of the submissions of both counsel, I am not prepared to make any of the orders sought by the applicant. The applicant's motion, notice of which was dated and filed 10 June 1994 will be dismissed.
The court expressed the view during the hearing that this is a case in which there should be serious negotiations. It also directed that the solicitors for both parties inform:
" . . . their clients of the costs incurred to date; secondly, of the costs likely to be incurred in the future if this matter runs to full hearing, including possible reference to the Industrial Relations Commission of course; and including the possibility of an appeal by whatever party loses."
Notwithstanding that I still adhere to the view that both parties should seriously consider settlement, I am satisfied on the material at present before the court that it is not appropriate to refer the matter to the Australian Industrial Relations Commission (the Commission) for conciliation under s.170EC of the Act. In forming that opinion I have taken into account the circumstances of the case, including the affidavit evidence from both parties as to the nature of the employment relationship, the history of relevant events, the disputed questions of fact and the delay that has already occurred since the application was filed on 25 May 1994. If the matter were to be referred under s.170EC, and the Commission later certified that it was "unable to settle the matter", the case would probably not be heard by the court for at least three months from today. Such a delay should not be allowed to occur in this case, where the applicant is seeking an order that the respondent reinstate him in his employment. Section 170EE(1) gives the court power to make such an order. The court has no power to order the payment of compensation to the employee unless "the Court thinks . . . that the reinstatement of the employee is impracticable" (s.170EE(2)).
On 23 June 1994 the parties' counsel both informed the court that the hearing of the case was estimated to occupy four or five days. The applicant's counsel said that his case would be ready in two weeks; on the other hand, the respondent's counsel asked that the case be fixed for hearing on a date about two months ahead. In my view a date for the hearing should be fixed and all necessary directions given to the parties today in respect of any interlocutory steps. The matter will be stood down until 2 p.m. today to enable the parties to consider their positions as to the directions to be given.
I certify that this and the five (5) preceding pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Keely.
Associate:
Dated: 19 August 1994
Solicitors for the applicant : I. W. Dunlop & Co
Counsel for the applicant : Mr Justin Bourke
Solicitors for the respondent : Madgwicks
Counsel for the respondent : Mr Frank Parry
Dates of hearing : 23, 24 June 1994
Date of judgment : 19 August 1994
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