Robin Beadon Liddell and Cheryl Lembke t/as Cheryls Unisex Salon

[1994] IRCA 40

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
SYDNEY  N^O. NI 200 of 1994

Robin Beadon LIDDELL  

Applicant

and

Cheryl LEMBKE     
  t/as Cheryls Unisex Salon

Respondent.

Court: Judicial Registrar Walker
Place:  Sydney
Date:   19 September 1994

The applicant seeks compensation in the sum of $11,619.43 under S 170 EA of the Industrial Relations Act 1988. He seeks no order for reinstatement.

The respondent filed in Court a notice of motion seeking orders:

(a)the Court pursuant to the provisions of S 170 EB of the Industrial Relations Act 1988, decline to consider or determine the application in this matter.

(B)      the applicant pay the respondents costs.

There was agreement between the parties that the question as to whether there exists an adequate alternative remedy should be dealt with as a preliminary matter.  There was also agreement that the applicant was employed under a State Award, the Hairdressers State award (NSW).

It is the respondent contention that as the applicant is subject to a New South Wales State Award,  there is in this State, available to him an adequate alternative remedy.

Section 170 EB of the Commonwealth Act provides as follows:

“The Court must decline to consider or determine an application under section 170 EA if satisfied that there is available to the employee by or on whose behalf the application was made an adequate alternative remedy, in respect of the termination, under existing machinery that satisfies the requirements of the Termination of Employment Convention.”

During the course of argument the parties examined and compared the provisions of the Commonwealth and State legislation.  There was discussion concerning whether, both the “Convention” and “Recommendation” applied to S 170 EB in the light of the object and interpretation of Division 3 of the Commonwealth Act Section 170 CA states:

“The object of this Division is to give effect, or give further effect, to:

(a)       the Termination of Employment Convention; and

(b)the Termination of Employment Recommendation, 1982, which the General Conference of the International Labour Organisation adopted on 22 June 1982 and is also known as Recommendation No. 166.”

In S170 EB there is only reference to the Convention.

One of the most important consequences to arise out of Part VIA Division 3, of the Commonwealth Act, when read in conjunction with the provisions of the Convention and the Recommendation is the imposition of a number of quite specific obligations on an employer to provide procedural fairness before terminating an employee.  I would say that these requirements go a great deal further than the State legislation allows for.  For example S 249 of the State Act provides:

“In determining a claim, the Commission may, if appropriate, take into account...”.

In fact this was the position in a decision in the Industrial Relations Commission, on the 27th October 1993 in the matter of CECIL and ZENOO P/L NO. 1584/93.  Commissioner McKenna when deciding to dismiss an application for unfair dismissal, was of the opinion that:

“when viewed against the entirety of this case, Zenoo’s failure to adapt a more appropriate procedural course does not alone persuade me to intervene in the decision to dismiss.”

It would therefore follow that there is indeed a substantial difference between the requirements of the Termination of Employment Convention and the standard of procedural fairness followed in New South Wales under its existing machinery, however, I am of the opinion that the circumstances of this particular case do not require me to make a decision on that basis.

Of more significance is the fact that the applicant has made a claim for compensation only and that he seeks no order for reinstatement.

When this proposition was raised by the applicant the respondent replied:

“...it would be our submission that if a person has not sought reinstatement, then that would stand against him being afforded compensation under the Act... if someone is today before the Court and have not been interested in reinstatement, then you cannot go so far as to offer them compensation.”

This of course is the current position under State law in NSW.  In the matter of LEEDS and NORTHRUP AUSTRALIA P/L v. HULL (1992 46 IR 11, the Full Commission considered an appeal against a decision where compensation had been awarded to Mrs Hull.  It was submitted that the original claim was brought for compensation only, and not reinstatement or re-employment.

The Full Commission held that the Commission did not have jurisdiction to award compensation in the absence of a finding that reinstatement or re-employment was impracticable.

I am of the opinion that this is not the position in relation to S 170 EA of the Commonwealth Act. Section 170 EA (1) provides:

“A person (“the employee”) may apply to the Court for a remedy in respect of termination of his or her employment.”

Section 170 EE sets out the remedies the Court may grant.  Under sub section (1), the remedy of reinstatement, re-employment and lost remuneration and in sub section (2) compensation in lieu of reinstatement.  Under the Commonwealth legislation there is no requirement for an applicant to use the fiction of reinstatement or re-employment when he seeks compensation.  The Court will look at whether reinstatement is impracticable but there is no requirement to seek reinstatement before compensation may be granted.

In these proceedings Mr Liddell has made application to the Industrial Relations Court of Australia on the basis that the respondent has contravened a provision of Division 3 of the Act, and seeks compensation in lieu of reinstatement.  If he had sought this remedy in proceedings for unfair dismissal under the State legislation, no adequate alternative remedy would be available to him.

Of further consideration in Mr Liddell’s application is of the word “is” in the construction of S 170 EB.

Mr Justice Keely in WYLIE v. CARBIDE INTERNATIONAL P/L WI 124/94 and BUTTLING v. CARBIDE INTERNATIONAL P/L WI 125/95, in considering a submission by the respondent, that the appropriate time for determining whether an adequate alternative remedy exists for the purpose of S1 170 EB is the time at which the application under S 170 EB is brought, was of the opinion that:

“As a matter of construction, I am inclined to the view that the submission is not correct and that the court is to decide whether an adequate alternative remedy exists at the date when the court is so deciding - not whether it existed at the date when the application was filed in Court.”

Taking into account the provisions of S 246 (2) of the Industrial Relations Act 1991 (NSW) which requires an application to be filed within 21 days after termination of employment and that termination was on the 14 April 1994, the applicants process is out of time. Any application to file out of time would place the applicant in a similar “2 step process” which according to His Honour would;

“itself support the applicants contention that there is no “adequate alternative remedy” within the meaning of S 170 EB of the Commonwealth Act.”

For these reasons I dismiss the respondents motion.  No order is made for costs.

COURT:        R A Walker, Judicial Registrar

PLACE:        Sydney

DATE:            19 September 1994

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgement of Judicial Registrar Walker.

Associate        :         Jeynelle Moffat

____________________

Date  :         19 September 1994