Robert Bruce Fenton v Casey College of TAFE Hilton James Gallagher v Casey College of TAFE
[1994] IRCA 135
•08 December 1994
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI 1106 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N:
ROBERT BRUCE FENTON
Applicant
A N D
CASEY COLLEGE OF TECHNICAL AND
FURTHER EDUCATION
Respondent
A N D
VI 1107 of 1994
B E T W E E N:
HILTON JAMES GALLAGHER
Applicant
A N D
CASEY COLLEGE OF TECHNICAL AND
FURTHER EDUCATION
Respondent
Reasons for Judgment
8 December 1994 PARKINSON JR
In these matters, which arise out of the termination of the employment of the applicants Fenton and Gallagher, the applicants seek the following remedies:
an order declaring the termination of the employment to have contravened sections 170DE (1), 170DF (1)(b) and, where relevant, S170DF (1)(d) of Division 3 of Part VIA of the Industrial Relations Act 1988 (“the Act”);
an order requiring the respondent to reinstate the applicants; and
an order that the respondent pay compensation to the applicants.
Background to the applications and findings of fact.
It is appropriate to set out the history of the employment of both applicants.
Both applicants were employed by the respondent until the date of their termination on 15th July, 1994. Both applicants were employed as teachers in the Building and Construction Department of the respondent College. Their employment at the time of the termination TAFE Teachers’ Conditions of Employment (Victoria) Interim Award 1994 (“the Award”).
Mr. Fenton was originally employed in the technical education sector in 1970, and in late 1984 by the TAFE teaching Service at the Dandenong TAFE College. Between 1974 and 1978 he was acting head of the Department of Building at Moorabbin College of TAFE. His period of recognised service in the TAFE sector is 24 years. Mr. Fenton is 51 years of age. Mr Gallagher was employed originally by the Schools Division of the Teaching Service in 1975 and then subsequently by the TAFE Teaching Service. He remained teaching in the Technical and Further Education area until the termination of his employment. He was employed at the Dandenong Campus of the Casey College for eight years. Prior to that he was located at various colleges. His entire period of service in the teaching service associated with technical and further education, such service being recognised by the respondent for all purposes of his employment, was almost 20 years. Mr Gallagher is 50 years of age.
The evidence is that there was in 1993 a change in the nature and structure of the various colleges of TAFE in Victoria. As a result of those changes, all of the colleges went from being an amalgam of colleges administered and funded through a central organisational structure known as the TAFE Teaching Service, pursuant to the Post Secondary Education Act 1978 (Vic), to each one becoming established pursuant to the Vocational Education and Training (College Employment) Act 1993 (Vic) as separate and autonomous colleges with individual responsibility for the employment of persons who had previously been employed under the Crown.
The basis for college funding arrangements focused upon enrolment numbers in particular courses and subjects, and each college was required to enter a program or service delivery agreement with the funding body. The respondent submits that this structural change had no consequences for, or relationship with, the decision taken in respect of the redundancy of the applicants, and submits that this would have occurred as a result of the respondent’s assessment of its program delivery requirements.
In a planning document called a Recurrent Program Budget, dated 24th February, 1994, (Exhibit K3) but apparently created in late 1993, (T. page 98.15) the College developed projections of it’s 1994 subject delivery and teaching hours requirements in the Building and Construction Department. This was developed having regard to the funding and program delivery requirements of the agreement the College had with the State Government, and also having regard to anticipated student numbers.
The respondent’s evidence was that, as evidenced in the Recurrent Program Budget there was, as a result of a seasonal fluctuation in the building and construction industry, a projected reduction in the student enrolment numbers in subjects to be taught, and a consequent change in the manner in which those subjects would be delivered. The manner of subject delivery in terms of teaching hours was determined having regard to an allocation of the maximum hours provided for in the Award, and the need for maximum flexibility in utilisation of teaching hours (Exhibit K3, OG5). The respondent’s evidence was that this projection established that the department had three teachers in excess of requirements in respect of the delivery of teaching services.
It was submitted for the applicants that the analysis undertaken by the respondent was flawed and that it fundamentally underestimated the necessary numbers of full time equivalent teaching hours, having regard to the Award requirements in relation to teaching hours and class contact times. It was submitted that the number of teaching hours allocated to determine the minimum level of teaching staff was in excess of that provided for in the Award. It was further submitted that there had been an over-counting of allocated hours to the Department Head, and a failure to take into account allowances of hours for other aspects of teachers’ duties as provided for in the Award.
I am satisfied that this budget planning document (Exhibit K3), whilst being a projection of expectation only, was a real and genuine attempt in the College to establish what its requirements would be for the next budget period, on the basis of an assumption as to student numbers. It was created as part of the usual process within the College for forward planning. It appears from the evidence in the proceedings that no steps were taken in relation to the staffing projections or perceived staffing excess until June, 1994.
Prior to any steps in relation to staff numbers being taken, the College approached the Victorian Government and expressed its view that it had inherited employment responsibility for staff who, having regard to projected program requirements, were in excess of requirements. All staff were, however, existing College employees and not persons recently transferred to the College.
On 2nd June, 1994 the Victorian Government notified all TAFE colleges of its willingness to fund the redundancy expenses of colleges in so far as those redundancies were shown to be necessary (Exhibit K4 and T. 105.20). This offer was the subject of a time limitation which time expired on 30th June, 1994. It is clear from the evidence of the respondent’s witness Mr. Parish that the College was aware that if it did not deal with any desired staff reductions within the context of this offer, it would be left with a very substantial cost burden in the event that there were future redundancies. It was apparent from Mr.Parish’s evidence that this offer from the State Government was the principal factor in motivating the timing of the initiation of the process that eventually led to the redundancy of the applicants (T. 105.5). He said:
“(The) practice had been that colleges had been discouraged by government from reducing staffing levels, other than through voluntary transfers to other colleges pre the 7th month 1993 or, more recently, through voluntary separation packages. The normal practice, of course, is through natural attrition. Retrenchment was not widely applied because of the fiscal constraints associated with employees superannuation benefits.
Q. Mr Parish, could you just explain what you mean by that statement? What fiscal constraints?
A. Well, the financial burden that would be on a college that determined to retrench would require it to pick up the - unless there were arrangements put in place and these hadn’t been in place - to pick up the superannuation payout to the employees. That would normally be quite significant depending on the amount of service and when they started work and a range of functions and matters of that nature. It could be as much as 2 1/2 times or 3 1/2 times annual salary so they would be quite extensive.”
The respondent provided details of those staff whose redundancy would involve the greatest cost, to the Government for approval. The evidence was that the “worst case scenario” was requested. Whilst no names were provided against the profile, the evidence is that the applicants were those staff members.
As a result of the confirmed availability of funding for any redundancies, and the decision that there were two excess teaching positions, the respondent determined that it would “spill” all positions in the Department and that all current employees would be required to apply for the remaining positions and would be interviewed and selected according to a process which was developed and determined by the College Finance Manager.
On 22nd June, 1994 by written notice, (Exhibit OG1) the respondent informed all teaching employees in the Department that their positions were spilled from that day.
There had been discussions in relation to voluntary separation packages in the College during the year, and some persons had accepted voluntary separation packages. It is clear that there had been an ongoing process of reduction of staff numbers in the College since late in 1993. I am, however, satisfied on the evidence that there had been no discussion or consultation with the staff members in the Department as to the decision to spill of all positions prior to the issuing of the notice.
At a staff meeting on 22nd June, 1994 after the announced “spill of positions”, various options were put to the College administrators by staff members with a view to avoiding or reducing the number of redundancies arising from the programme delivery decisions which had been made. Those suggestions included various options in relation to staff taking accrued long service leave, with a view to minimising the necessity for any redundancy, and an offer by the applicant Mr. Fenton to go on leave without pay for two years.
The staff were informed at that meeting that no alternatives to the process proposed would be considered (T. 17.15). Mr. Fenton subsequently confirmed the offer regarding leave without pay in writing to the College by letter dated 27th June, 1994 (Exhibit OG6). This offer was made prior to the process of selection for positions being undertaken or decided. No response was received to this letter until after his termination when, on 13th September, 1994, a hand delivered letter dated 29th June, 1994 was delivered to his home ( Exhibit OG7). That letter advised him that the application had been rejected.
An interview process involving the application of various key selection criteria was undertaken one week after the spill of positions. At the completion of that process, the applicants were ranked ninth and tenth on a point score. The process was that the first eight point scorers would be appointed to the positions, and that those persons who rated nine and ten overall would be made redundant. The evidence was that the selection criteria were based upon, but were not the same as, the selection criteria contained in the Award. The selection criteria applied during the interview process did not include any weighting or recognition for qualifications, notwithstanding that there was weighting attributed to other factors of a subjective nature.
At the conclusion of the process the applicants were informed by letter that they had been unsuccessful, and that their employment was being terminated. I discuss later in this decision the evidence as to the procedure adopted in respect of the termination of the employment.
Having regard to the evidence in this matter and my findings of fact, I now turn to consider the operation of S170DE of the Act.
S170DE (1) - Valid reason related to the operational requirements of the respondent.
It is submitted by the applicants that the respondent had no valid reason for the termination because the assumptions made by the respondent as to staffing requirements as evidenced by Exhibits K3 and OG5 were wrong, and that they were pursued unnecessarily. It was also submitted that the budget projections and teaching hour allocations in those Exhibits were in excess of those provided for by the Award in relation to prescribed teaching hours, and that they failed also to take into account various allowances in respect of teaching hours in that Award.
Whilst the issue of manning requirements may be a relevant matter for an industrial tribunal to consider in the context of an industrial dispute, it is not clear to what extent, if at all, this Court is entitled to go behind a decision made by a respondent that a termination of employment is necessary for reasons based upon organisational requirements.
I am of the view that when that decision is made on the basis of program delivery requirements, funding arrangements and budget limitations which have been established to be bona fide, and not merely a sham to enable the respondent to avoid scrutiny of the termination, the Court is able to conclude that the respondent did have a valid reason for the termination of the employment, that reason being a reason related to the operational requirements of the business. This is the approach I propose to take in determining this matter.
There is significant dispute between the parties to these proceedings in respect of the validity of the reason for the termination, but that dispute fundamentally arises out of the necessity for the redundancies at all. The case of the applicants was that having regard to operational requirements and Award obligations of the respondent the projections were wrong, and that the respondent was not entitled to rely upon them as showing valid reason for the redundancies.
It is not suggested by the applicants that the budget projections in Exhibit K3 and OG5 were not bona fide adopted by the respondents, or that they had been created for any purpose other than to identify the operational needs of the College.
I have had careful regard to the budget projections, including those budget plans which were produced to reflect the operational status of the Department subsequent to the termination (which documents were included in Exhibit K3), and I am satisfied that the budget projections were bona fide and were relied upon by the respondent to establish its operational requirements.
I am further satisfied that, having regard to the program requirements of the respondent, there was in the Building and Construction Department an excess of 3 full-time equivalent teaching positions. Whilst the applicants have identified some aspects of the budget plans which may give cause for argument as to the correct application of the Award provisions, it has not been established that there was anything so fundamentally unsound in the projections of staffing requirements that they could not be treated as bona fide.
Having regard to these matters and the approach I have adopted in the application of S170DE (1) of the Act, I have decided that the respondent did have a valid reason for the termination of the employment of the applicants, and that that reason was a reason related to the operational requirements of the respondents.
S170DE (2) - Harsh, unjust or unreasonable
I turn now to consider whether, having regard to S170DE (2) of the Act, the terminations were harsh, unjust or unreasonable.
The applicants submit that the respondent failed to apply in a fair and equitable manner the selection criteria adopted to determine who of the employees in the department would be made redundant. It is further submitted that the respondent failed to apply appropriate Award selection criteria and that it failed to have regard to key matters in making its decision and selecting the applicants for redundancy; that is, that there was substantive unfairness in the selection process, and procedural unfairness associated with the termination of employment. In particular, the applicants referred to the various factors set out in the Recommendation Concerning Termination of Employment at the Intiative of the Employer, contained in Schedule 11 to the Act, and in particular to the various matters referred to in Clause 23 of that Recommendation.
I turn to consider each of these aspects in turn.
The process adopted to determine the selection of persons for the
positions available; the selection criteria adopted and the application
of that selection criteria.
There are a number of discrepancies associated with the selection process which was adopted by the respondent. These include that the respondent adopted and applied selection criteria which were not in accordance with the criteria which had been determined by the competent authority, the Australian Industrial Relations Commission, to be the appropriate criteria for selection for positions (Exhibit OG8, at Schedule 2.1.).
Whilst it is apparent that such selection criteria as are contained in the Award were not specifically designed nor directed towards a situation of selection other than for promotion or recruitment, they are of some use in assisting an assessment of whether or not the process adopted by the respondent was applied fairly and reasonably. In this case the respondent failed to have regard specifically to the criteria, but included aspects of them in the key selection criteria it adopted for the purpose of the procedure.
The approach of weighting of various factors under those criteria, and the application of subjective judgments against the job application, whilst perilous, is often the only way in which the difficult task of selecting between successful and unsuccessful applicants can occur.
Whilst I am not satisfied that the selection criteria adopted by the respondent were on their face unfair, although I discuss this question later in considering the Award, I am, however, satisfied on balance that they were not applied in a manner which was fair and without preconceived notions as to the best outcome for the respondent.
It is difficult to reconcile the fact that Mr. Fenton, the best qualified teacher in the Department, and Mr. Gallagher, the most experienced teacher in the Department, happened to rate second last and last respectively upon completion of the selection process, with the fact that the respondent, in informing the government of its “worst case scenarios” in terms of redundancy payment expenses, had nominated both of the applicants. Whilst I accept the evidence of Mr Parish that the College was advised to put forward its worst case scenario, I have nevertheless concluded, having regard principally to the evidence as to the circumstances of the initiation of the spill process and the expressed concerns as to future financial burden on the College, that there were influences upon the selection process and its outcome which went beyond merely an assessment of skills and key selection criteria. I further conclude that those influences affected the selection process and its outcome in relation to the applicants.
Having regard to these matters, on balance I am of the view that the selection process as it was applied to the applicants was not applied fairly.
Consequently, I find that the termination of the employment of the applicants was substantively harsh, unjust and unreasonable.
The procedure adopted by the respondent in relation to the termination of the employment.
The applicants submitted that there were two relevant aspects to the alleged unfairness of the procedure adopted by the respondent. These related to the failure of the respondent to meet the obligations set out in the Recommendation Concerning Termination of Employment at the Initiative of the Employer (“the Recommendation”) as set out at Schedule 11 to the Act. Further, it was submitted that the term “harsh, unjust or unreasonable” imposes a general obligation that the process adopted be fair.
The Recommendation sets out a number of requirements in relation to situations of redundancy. These include: that there be meaningful dialogue with the affected employee; that such measures are taken as are possible be taken to avert or minimise the terminations; that alternative employment opportunities be investigated, including training or retraining; and that the criteria for selection for termination be based upon the relevant national regulation. In this latter regard, the applicants rely upon the various selection criteria in the Award, and submit that the failure of the respondent to apply these Award criteria constitutes a failure to adopt fair procedures. I am inclined to agree that this raises a real question as to the objectivity of the selection criteria because in so far as the selection criteria adopted by the respondent purported to be directed to objective skills based criteria, it is reasonable to expect that the key selection criteria in the Award would be the most appropriate criteria to be utilised. But this aspect is not the only aspect of the process which apparently failed to meet standards of fairness and reasonableness appropriate to the circumstances.
Whilst the provisions of the Recommendation are not of themselves
legislative prescription, the Act directs attention to the provisions of the Convention for the purpose of interpretation. S170CA (1) provides that the object of Division 3 Part VIA of the Act is to give effect to or give further effect to: (a) the Termination of Employment Convention; and (b) the Termination of Employment Recommendation 1982.
It is appropriate for the purposes of determining whether the process or procedure adopted by the respondent resulted in the terminations being harsh, unjust or unreasonable, to have regard to those matters which are set out in the Convention and the Recommendation. This is not to suggest, however, that it is a requirement of the term “harsh, unjust or unreasonable” that there be a total or strict compliance or application of those matters. The question of whether or not there has been an according of the requisite level of fairness will generally be determined having regard to the particular circumstances of the case. This result is the same if one takes the general approach also contended for by the applicants.
After the selection process had occurred and the applicants had been rated last and second last, and thus had not been successful in obtaining a position in the Department, there were no discussions with either of them in relation to the termination of their employment.
The evidence was that there was no attempt by the College to ascertain whether there might be an alternative to termination by way of alternative employment in the College, redeployment or retraining. Nor was there any discussion with the applicants in this regard.
The policy position that the persons who were rated last and second last in the selection interviews would be made redundant was adopted and implemented by the respondents with no regard to the affects upon the applicants, and with no opportunity given to either of them to discuss or suggest alternatives to the termination of their employment. It is apparent from the evidence that the respondents had indicated a lack of interest in considering alternatives to termination of employment at the time the announcement was made that positions in the Department were to be spilled. This attitude was carried through the entire process leading to, and including, the termination of the employment of the applicants.
The evidence was that there had been a number of instances in the College where alternative employment, including retraining, had been utilised to avoid termination of employment due to redundancy. In one instance, leave without pay for 12 months had been given to provide another employee with the opportunity to retrain for vacancies within the College. In the present case, there were advertised vacancies for positions shortly after the applicants’ employment was terminated. No consideration had been given by the College to either of the applicants in terms of their present suitability for these positions, nor their possible retraining for such positions. As earlier discussed, an application by one of the applicants for leave without pay for two years was rejected without apparent consideration of the circumstances of the applicant (Exhibit OG7). There was evidence from the respondent that no attempt had been made to look for alternative positions which were or might become available throughout the College’s 400 or so teaching positions.
Further, it was put by the respondent that because of the change in the structure and administration of staffing in the colleges, it was not an option for the respondent to ascertain whether vacancies may have existed at other TAFE colleges. I do not accept this as a credible or justifiable explanation for the failure of the respondent to take steps which had until very recently been a common practice amongst colleges. The administrative difficulties of such a step were relied upon by the respondent as the justification for not so acting, but in my view this was a mere afterthought on the part of the respondent. I find that the respondent did not even turn its mind to such an option in the case of these applicants. I note that Mr Parish did not say that such steps could no longer be taken, rather he said that there was no administrative process to enable it to be done (T. 146.30). The evidence was that the practice of seeking redeployment for employees to other colleges was an ongoing practice in relation to other categories of employees in the College, particularly the non-teaching staff (Parish T. 147.10-15).
I am satisfied that, as a result of the funding made available by the Government, the college was not interested or motivated to investigate any alternatives which might lessen the effect of their decision upon the applicants. The College adopted a speedy process which was in its interest and entirely disregarded the interests of the applicants.
In deciding this matter I have had regard to the following decisions in my consideration of the meaning and application of the term “harsh, unjust or unreasonable”. In Nicolson v Heaven & Earth Gallery Pty Ltd, (unreported, 20 September 1994), his Honour Chief Justice Wilcox , after having considered a passage in the judgment of Heerey and Sheppard JJ in Bostik (Australia) Pty Ltd V Gorgevski (1992) 36 FCR 20 at 33, and a further passage at page 34 in the judgment of Gray J said:
“I respectfully agree with the observations in both these passages. They lead me to conclude that, in assessing compensation for a breach of s. 170DC, it is appropriate to consider what would have been likely to occur if that breach had not occured. It should not be assumed that the employee would have been dismissed anyway. Such an assumption ignores the rationale of procedural fairness and everyday experience that decision makers often change their minds when presented with another side of a case. It devalues s. 170DC to
the point of redundancy.”
Whilst the Chief Justice’s observations were made in relation to the operation of S170DC, the observations in respect of the rationale of procedural fairness are particularly applicable in the present circumstances.
In Gorgevski Sheppard and Heerey JJ considered the meaning of the words “harsh, unjust or unreasonable”, and said (at 29):
“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable.”
I have also had regard to the decision of Judicial Registrar Ryan and the cases considered in Hunt v STA Tech Engineering Pty Ltd (t/as Boyd Steel) (unreported, 23 September 1994) where the Judicial Registrar said at pages 5 - 6:
“Although I have found the redundancy genuine, nevertheless I find the termination harsh, unjust and unreasonable. The applicant is described and accepted by Mr. Esmore as a good worker. He is widely experienced in all welding tasks undertaken by the respondent. No discussions were held with the applicant and he was provided with no meaningful information. (see Gibbs and City ofAltona (1988) 42 IR 255).
There was no exploration of any possible alternative with the applicant prior to the ultimate step of dismissal (see Gregory andPhillip Morris (1988) 80 ALR 455 at 473).
There was no proper investigation of the facts and consultation with the employee about those facts and their possible consequences (see Byrne v Australian Airlines Limited and Frew and Australian Airlines Limited (1990) 52 IR 10 per Beaumont and Heerey JJ at 37 and Gray J at 63).
The case of Kevin Bershara and Budget Couriers Equity Management, a decision of the Employee Relations Commission of Victoria in full session on 22 July 1993 is particularly apposite.
At p 10 of that decision the Commission stated
‘In approaching matters alleging that a dismissal is harsh, unjust or unreasonable, it is not enough for an employer to establish that the circumstances are one of genuine redundancy. The dismissal must be tested against substantive and procedural fairness.It is insufficient for an employer to raise the aegis of a genuine redundancy as a wand against this Commission intervening where the circumstances in which the redundancy was imposed are otherwise harsh, unjust or unreasonable. The obligations to consult, to provide adequate notice and to apply objective selection criteria in determining which employee is to be made redundant are factors in determining whether a dismissal was harsh unjust or unreasonable. The concept of ‘industrial fair play’ is to be observed by both parties to a contract of employment and the need to make employees redundant does not absolve employers from this general principle...’
These observations are applicable to Division 3 of part VIA of the Industrial Relations Act 1988 and in particular sections 170DE, 170 EA and 170 EE.”
In my view it is apparent from the above authorities that in cases of genuine redundancy there are nevertheless obligations in the employer to apply fair and objective criteria in its decision making and, as a matter of fairness, to consider the options and alternatives which may be available to minimise or remove the need for termination of employment. This obligation arises in my view as a necessary construction of the term “harsh, unjust or unreasonable” both by reference to natural justice considerations and having regard to the contents of the Recommendation.
I have carefully considered the submissions of the respondent based upon the application of Re Cram; ex parte N.S.W. Colliery Proprietors’ Association Ltd (1987) 163 CLR 177. That decision along with the others quoted, whilst undoubtedly appropriate for consideration in the context of industrial disputes, are difficult to apply in respect of the present legislative prescription that a termination of employment not be harsh, unjust or unreasonable. I did not find those authorities helpful in determining these issues.
Having regard to the process adopted by the respondent in relation to the termination of employment of the applicants, I am of the view that the termination was substantively and procedurally harsh, unjust and unreasonable.
I find therefore that the respondent, in terminating the employment of Mr. Fenton and Mr. Gallagher, contravened the provisions of Division 3 Part VIA of the Industrial Relations Act 1988.
S170DF(1)
The applicants submitted that one of the reasons for the termination of the applicants’ employment was that they were members of the minority union at the workplace, and that the respondent had a policy of dealing with only one union, that being the Australian Education Union. The evidence of the respondent’s witness Mr. Parish satisfied me that the reason for the termination was as a result of the operational requirements of the business. There was no evidence to cast doubt on his assertion that the union membership of the applicants formed no part of the reason for the termination.
Remedy - S170EE
I have considered whether in this circumstance reinstatement of the applicants would be impracticable. Having regard to my findings as to the failure of the respondent to take any steps to investigate alternatives to the termination of the applicants’ employment, I am satisfied that reinstatement is the appropriate remedy and that it would not be impracticable. Mr. Gallagher has had 20 years of teaching service in the TAFE area and has devoted his working life to education and training. In his evidence he indicated that his main concern in these proceedings was just to get his job back. Mr. Fenton, whilst currently employed as an Industrial Officer, has informed the Court that this employment is not undertaken on a permanent basis. I have decided to order that each of the applicants be reinstated to either their former positions or to another position within the College on terms and conditions no less favourable to those previously enjoyed.
I have also decided to order that the respondents pay to each of the applicants an amount the equivalent of that which the applicants would have earned had their employment not been terminated. From the amount payable to the applicants there is to be a set-off of the amount of severance payment made to the applicants, which was two weeks pay for each year of service up to a maximum of 10 years service, and four weeks pay in lieu of notice.
I propose also to make an order that the period between the date of the termination and the date of the reinstatement be recognised for all service purposes, and that each of the applicants service be treated as continuous for all purposes.
I propose to further reserve leave to apply in respect of any difficulties which may be encountered in respect of the implementation of the orders of the Court.
The orders of the Court will be:
That in terminating the employment of Mr Fenton and Mr Gallagher
(“ the applicants”) , the respondent contravened Part VIA of Division
3 of the Industrial Relations Act 1988.That each of the applicants be reinstated to either
(a) their former position, or
(b) another position within the respondent College
on terms and conditions no less favourable to those
previously enjoyed by them.That the respondent pay to each of the applicants an amount of compensation the equivalent of that which they would have earned had their employment not been terminated.
That the amount of severance payment paid to both applicants be set off against the amount ordered to be paid to both applicants by way of compensation in order 3.
That the period between the date of termination and the date of reinstatement be treated as continuous employment for all purposes.
That leave be reserved to the parties to apply to the Court in respect of any difficulties which may be encountered in the implementation of these orders.
I certify that this and the preceding twenty-four (24) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson.
Associate:
Dated: 8 December 1994
Solicitors for the applicants: J.M. Smith & Emmerton
Counsel appearing for the applicants: Mr. C. O’Grady
Association for the respondent: TAFE College Councils
Association of Australia
Representative appearing for the respondent: Mr. R. King
Dates of hearing: 4 & 7 November 1994
Written submissions: 24 November 1994
Date of judgment: 8 December 1994
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