Ryan v Furneys Stockfeeds Limited

[1996] IRCA 112

DECISION NO:  112/96

CATCHWORDS

INDUSTRIAL LAW - PROBATIONARY EMPLOYEE - whether employee a 'probationary employee' within the meaning of reg 30B(1)(c) and thus excluded from Div 3 Part VIA Industrial Relations Act 1988 (Cth) - whether provision that employee is a probationary employee must be a term of the contract of employment - whether it is sufficient that provision for probationary employment is a clause of the award - whether period of probation reasonable.

STATUTORY INTERPRETATION - expressio unius maxim - whether this maxim applied to reg 30B.

TERMINATION OF EMPLOYMENT - whether employee afforded procedural fairness - whether termination for valid reason - temporary absence from work - whether employer discharged onus to prove valid reason - whether termination harsh, unjust or unreasonable - compensation - whether compensation excessive.

Milling Industry Award 1990 (Cth)

Industrial Relations Act 1988 (Cth) s 170EA, s 170EB

Byrne v Australian Airlines Limited; Frew v Australian Airlines Limited (1994) 47 FCR 300

Byrne v Australian Airlines Limited; Frew v Australian Airlines Limited (1995) 131 ALR 422

Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) 1982 148 CLR 88

Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199

JAMES FOREMAN RYAN v FURNEYS STOCKFEEDS LIMITED

No. NI 1120 of 1994

Beazley JJ

28 March 1996

Sydney

IN THE INDUSTRIAL RELATIONS COURT )

OF AUSTRALIA                    )

)    No. NI 1120 of 1994

NEW SOUTH WALES                  )

DISTRICT REGISTRY                 )

BETWEEN:      JAMES FOREMAN RYAN

Applicant

AND:          FURNEY STOCKFEEDS LIMITED

Respondent

CORAM:    BEAZLEY J

PLACE:    SYDNEY

DATE:     28 March 1996

SHORT MINUTES OF ORDER

The Court orders:

1.   The orders of the Judicial Registrar be set aside.

Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT )

OF AUSTRALIA                    )

)    No. NI 1120 of 1994

NEW SOUTH WALES                  )

DISTRICT REGISTRY                 )

BETWEEN:      JAMES FOREMAN RYAN

Applicant

AND:          FURNEY'S STOCK FEEDS PTY LTD

Respondent

CORAM:    BEAZLEY J

PLACE:    SYDNEY

DATE:     28 March 1996

REASONS FOR JUDGMENT

Beazley J: This is an application by the respondent employer under s 377(1) of the Industrial Relations Act, 1988 (Cth) (the Act) to review a decision of a Judicial Registrar in which he found that the respondent's termination of the applicant's employment was unlawful under Division 3 of Part VIA of the Act.  The matter proceeded before me on the basis of the evidence adduced before the Judicial Registrar.

Decision of the Judicial Registrar

Before the Judicial Registrar, the respondent had argued that the applicant's employment was governed by the Milling Industry Award 1990 (Cth) and that under clause 20 of the Award, the applicant was a probationary employee to whom reg 30B(1)(c) applied.  It had been submitted that the applicant was thereby excluded from the operation of sub-division B and C of Division 3 of Part VIA of the Act. 

The Judicial Registrar, applying the decision of the Full Court of the Federal Court in Byrne v Australian Airlines Limited; Frew v Australian Airlines Limited (1994) 47 FCR 300 that an award is not an implied term of a contract of employment, held that the applicant did not fall within reg 30B(1)(c).

The Judicial Registrar also held that the applicant's employment was terminated in contravention of s 170DC and s 170DE of the Act and ordered that the respondent pay to the applicant $6925.30. 

Respondent's contentions on the application for review

The respondent submitted that it was an express term of the applicant's employment that he was appointed as a probationary employee and that he was still on probation at the time of his termination.  Accordingly, he was excluded from the operation of Div 3 of part VIA of the Act. 

Alternatively, it was submitted upon its proper construction, reg 30B(1)(c) applied to any case where at the time of termination, the employee was a probationary employee for a period which otherwise satisfied the terms of the regulation, whether the probation was under the contract of employment or for example, under the provisions of an award.  In this case, it was submitted that the applicant fell within reg 30B(1)(c) as, under clause 20 of the Milling Industry Award, the applicant's employment was subject to a 3 month probationary period.  It was submitted that clause 20 satisfied the conditions of reg 30B(1)(c).

The respondent also challenged the Judicial Registrar's finding that the termination of the applicant's employment was in contravention of ss 170DC and 170DE of the Act and the amount of compensation ordered.  It is convenient to deal with the reg 30B(1)(c) issue first.

Was the applicant excluded from the operation of Division 3 of Part VIA of the Act by Regulation 30B(1)(c)

Facts: The applicant commenced employment with the respondent in about July 1994.  There was no written contract of employment. The applicant was simply interviewed by the respondent's manager and offered a job.  The applicant described his job as "loader, unloader ... carter, cleaner". 

The applicant said that at the time he was interviewed, the respondent's manager informed him that the position was full time.  He said he was asked to start the following day, which he did.  The respondent's manager did not dispute this evidence, although he believed he may have told the applicant that he could start straight away.  The manager said that he did not say anything to the applicant about the applicant's terms and conditions of employment before he started work.  He said, however, that on the morning that the applicant commenced work:

"...[b]ut as with all employees, he asked me was the work permanent, I recall that, and I said that there was a possibility that it could turn into permanent work.  But as all employees [sic], I believe, that I told Mr Ryan in the chaff shed that he would be on a trial period."

The manager did not specify how long the trial period would be.  He said:

"I think I only told him that if he - that he was on a trial period and that - simply the same as I told all the blokes there, that if they annoyed me that they would be out the gate..." 

It was clear from the applicant's cross examination of the manager that the applicant disputed that he was ever told that his employment was subject to a trial period.  For the reasons which appear below, it is not necessary to decide any conflict between the applicant and respondent on this point.

Was it a term of the applicant's contract of employment that the applicant was on probation?  Counsel for the respondent submitted that the evidence established there was an express term of the applicant's contract of employment that it was subject to a trial period.  I do not agree.  The contract of employment was made at the time the respondent offered and the applicant accepted the job.  At that point, even on the respondent's evidence, nothing was said about the employment being subject to a trial period.  That is sufficient to dispose of this submission.  However, even if the applicant's contract of employment did include a term that the employment was subject to a trial period, that is not sufficient to invoke the operation of reg 30B(1)(c).  Paragraph (c) requires that the period of probation be fixed in advance.  In this case, the respondent's evidence went no higher than that the manager told the applicant that his employment was subject to a trial period.  No period was specified as to the length of that trial period.  Accordingly, I reject this submission.

Does reg 30B(1)(c) apply where an award provides for a period of probation?  I have already referred to the fact that clause 20 of the Milling Industry Award applied to the applicant's employment.  That clause provides:

"Engagement

(a)  ...the engagement of all employees under this award shall be on the basis of either weekly employment (which includes part-time employees) or casual employment.  Employees shall be notified prior to engagement under which category they are employed.

Weekly employees (including part-time employees)

Probationary period of employment

(i)(1)    All new weekly employees...shall be employed under a probationary period of 3 months commencing from the date of engagement....During the probationary period employment shall be on a day to day basis and the employee's employment may be terminated by either the employer or the employee at the end of any day or shift without notice."

In Byrne v Australian Airlines Limited; Frew v Australian Airlines Limited (1995) 131 ALR 422, the High Court upheld the finding of the Full Court of the Federal Court that the terms of an award are not implied into a contract of employment. That does not mean, however, that an award has no operation. Brennan CJ, Dawson and Toohey JJ, in explaining the operation of an award provision, stated at 426-7:

" The award regulates what would otherwise be governed by the contract.  But [the award provision is] imported as a statutory right...The importation of the statutory right into the employment relationship does not change the character of the right.  As Latham CJ points out in his judgment in Amalgamated Collieries of WA Limited v True (1938) 59 CLR 417 at 423, the legal relations between the parties are in that situation determined in part by the contract and in part by the award.

...

In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award.  The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award (See Kilminster v Sun Newspapers Ltd (1931) 46 CLR 284) and, as we have said, the award operates with statutory force to secure those terms and conditions.  Neither from the point of view of the employer nor the employee is there any need to convert those statutory rights and obligations to contractual rights and obligations."

Their Honours further stated at 428-9:

"...a term of an award derives its force, not from agreement between the parties, but from statute. That being so, if a contract of employment is made in reliance upon a provision of an award, it is not a reliance which requires the provision to be made a term of the contract because it already has statutory force."

In this case, there was no direct evidence as to whether the applicant was employed as a weekly employee or as a casual.  Nor was there any evidence that the respondent, as obliged by clause 20, informed the applicant under which category he was engaged.  However, I infer from the discussions between the applicant and the manager that, had the applicant satisfactorily performed his work during the period of his trial or probationary employment, he would become a permanent employee.  Permanent, in this context, must be contrasted with casual employment under the terms of the award.  Under the terms of the award, the applicant would be a weekly employee.  Accordingly, under cl 20(a)(i)(1), he was on probation for a period of 3 months commencing from the date of his employment.  He was still on probation at the date of termination of his employment.

Counsel for the respondent submitted that if the provisions of clause 20(a)(i)(1) satisfied reg 30B(1)(c), the applicant was thereby excluded from the unfair dismissal provisions of the Act.  In support of this submission, counsel for the respondent relied upon the difference in the terms of pars (a) (aa) & (b) of reg 30B(1) on the one hand and pars (c) and (d) on the other.  It is useful to set out the regulation in full at this point.  Regulation 30B(1) provides:

"(1) Subject to subregulation (2), for the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act:

(a)  an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into before 16 November 1994;

(aa) an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into on or after 16 November 1994, if the specified period is less than 6 months;

(b)  an employee engaged under a contract of employment for a specified task;

(c)  an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period as the case requires:

(i) is determined in advance; and

(ii) is reasonable having regard to the nature and circumstances of the employment;

(d)  a casual employee engaged for a short period of time within the meaning of subregulation (3)."

Counsel for the respondent submitted that it is clear from the express terms of the regulation that the earlier paragraphs are predicated upon the employee being engaged "under a contract of employment".  This was not the case in respect of paragraphs (c) and (d), which made no reference to a contract of employment.  Counsel for the respondent submitted that the difference in drafting between paragraphs (a), (aa) and (b) and paragraphs (c) and (d) indicated that paragraphs (c) and (d) were not confined to cases where the terms of the contract of employment provided for a relevant period of probation. 

This submission involves an application of the expressio unius maxim of statutory interpretation.  Pearce and Geddes Statutory Interpretation in Australia 4th Ed., par [4.22] state the maxim in these terms:

"It is a reasonable assumption that where legislation includes provisions relating to similar matters in different terms, there is a deliberate intention to deal with them differently".

The maxim is to be used with care.  In Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) 1982 148 CLR 88 Stephen, Mason, Aicken, Wilson and Brennan JJ stated at 94:

"The maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument."

It is not be used if to do so would bring about a result unintended by the legislature: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 574-6.

In my opinion, the expressio unius rule does apply here.  Paragraphs (a), (aa) and (b) relate to specific contracts of employment.  If a contract of employment falls within the terms of any of these paragraphs it is excluded from the operation of Division 3 of Part VIA of the Act.  There is nothing in the language of para (c) to indicate that it should be confined to cases where it is satisfied by a term of a contract of employment.  This construction is reinforced by the Act itself.  Division 3 of Part VIA of the Act is not confined to cases which are only governed by a contract of employment.  It equally applies where an award also operates in respect of the employment.  Accordingly, if, under an award, the employment satisfies the conditions of reg 30B(1)(c), an employee is excluded from the operation of Division 3 of Part VIA of the Act.

Under Clause 20 the applicant's period of probation was fixed in advance, thus satisfying subpara (i) of reg 30B(1)(c).  That leaves for determination whether the probationary period of 3 months was "reasonable having regard to the nature and circumstances of the employment".

There was no evidence as to why 3 months was reasonable having regard to the nature and circumstances of the employment.  However, it was submitted that the Court should take into account the fact that the award was made by a specialist Tribunal and should be reluctant, in such circumstances, to find that the 3 month probationary period was unreasonable.

In Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199, Wilcox CJ held at 208-9:

"Whether or not the stipulated period is reasonable, is a matter that has to be determined by the person hearing the case, as an exercise of judgment.  The judgment should be based on the proved objective facts, not on someone else's opinion.  Probably the most important consideration, in determining what is a reasonable period, will be the nature of the job.  In the case of a person employed to carry out repetitive duties under close supervision, a reasonable period may not extend beyond a week or two....Circumstances will vary from case to case;  the size, location and mode of operation of the employer being relevant factors, along with the personal characteristics and circumstances of the employee.  The legislature has not prescribed the maximum extent of a reasonable period.  It is not for me to do so.  But I suspect that an employer will rarely be able to justify a period exceeding two or three months, in the case of an employee to whom Pt VIA now applies;  that is, an award employee or a non-award employee whose wages do not exceed $60,000 per year.  See s 170CD of the Act."

Although there was little evidence on the nature of the work performed by the applicant, I am satisfied that it was work of a repetitive nature involving little skill.  However, Nicolson does not purport to set down any rule of universal application.  Each case has to be considered according to its own circumstances.  It may be that a period as short as that indicated by the Chief Justice may not be sufficient to assess an employee's overall suitability for the position.

An employer intending to rely on regulation 30B(1)(c) may be well advised to adduce evidence as to why the period of probation in the employment in question is reasonable.  Having said that, there is force in the submission of the respondent's counsel that regard should be had to the provisions of the award, although its terms are not necessarily determinative.  An award could specify a period which was not reasonable having regard to the nature and circumstances of the employment.  However, it must be borne in mind that the award was made by a specialist tribunal.  That is an important consideration although not a conclusive one.  It specifies a period of probation which is not unusual in this country in many forms of employment, including those which do not involve a great deal of skill.  In my opinion, the award period of 3 months is reasonable.  Accordingly, the applicant is excluded from the operation of Division 3 of Part VIA of the Act.

Was the termination in breach of Div 3 of part VIA of the Act?

Having regard to the conclusion which I have reached in respect of reg 30B(1)(c), it is not necessary to determine whether the termination of the applicant's employment was in breach of the ss 170DE and DC.  However, I should express my views on that matter, should I be wrong as to the application of reg 30B(1)(c).

The applicant worked for a period of about four and a half weeks.  During that time he had two absences from work.  The first was on 29 July 1994.  The applicant said he took time off because he had wrenched his ankle at work.  He said he only took off a few hours, sufficient to enable him to have an x-ray taken and obtain a prescription for Panamax.  He presented a doctor's certificate to his employer for his time off work. 

The medical certificate was dated 23 August 1994 and stated:

"This is to certify that James Ryan is suffering from a twisted ankle and will not be fit for duty 25 and 26 July 1994."

Initially, the applicant said that he had provided the doctor's certificate to his employer when he returned to work after having had the few hours off.  When shown a copy of the doctor's certificate, bearing a date nearly one month later than the absence from work, he said:

"Well that does seem to be a contradiction in terms.  I don't know why that is the case."

He was asked how soon after the injury he obtained the certificate to which he responded:

"It may have been afterwards, too".

He then said:

"...that was in relation to having to produce evidence in relation to why I had time off and that is why I had the doctor's certificate drawn up."

The applicant finally said he gave the certificate to Vicky Duff, the then manager, at about the time that it was dated.  He also said that he did not make a workers' compensation claim in respect of the injury to his ankle as he wanted to keep the job.

He gave the following explanation for his failure to inform anybody at the mill or at the office in Dubbo that he would not be in on 29 July 1994:

"Well, obviously, with the extent of the injury that I had received, is I was incapacitated and I have not got a phone at my residence, and I would have had to have come all the way down the street to undertake to have made contact, and that being the case, is it would have been just as easy for me to walk all the way, which would have then furthered - this is more times than I would have had to have taken off in respect to recuperating from that particular injury."

The applicant's second absence occurred approximately one month later and was the incident which precipitated his dismissal.  The applicant said that the cause of his absence on this occasion was that he was suffering from injuries which he had sustained in an assault the previous weekend.  He said that in the assault:

"My knee...[was] driven into the ground, which then left me with a bad ankle and a bung knee."

He said that if he had gone to work and performed his usual duties, which involved heavy lifting, he "would have been asking for trouble."  

The applicant again explained his failure to inform his employer of his absence because he did not have a telephone.  At the time, the applicant rented premises at the rear of premises in Narromine.  His landlord lived in the front of the premises.  The applicant said that whilst the landlord had a telephone, the landlord worked.  In addition, the applicant did not see it as his landlord's responsibility to notify his employer of the applicant's absence from work.

On 14 August 1994, the respondent's manager, Vicky Duff, came to the applicant's home and told him "not to bother turning up the following day."

I am satisfied that the termination of the applicant's employment was due to his unexplained failure to turn up on the two occasions to which I have referred.  Those absences were "conduct" for the purposes of ss 170DC and 170DE of the Act.  Those sections provide:

"S 170DC. An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:

(a)  the employee has been given the opportunity to defend himself or herself against the allegations made; or

(b)  the employer could not reasonably be expected to give the employee that opportunity."

"S170DE(1)    An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

(2)  A reason is not valid if, having regard to the employee's capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable.  This subsection does not limit the cases where a reason may be taken not to be valid." 

The onus of proof under s 170DE(1) is on the employer.  The onus of proof in respect of s 170DE(2) is on the employee: s 170EDA.

Failure to afford procedural fairness

Counsel for the respondent implicitly recognised that the respondent had breached s 170DC, as it clearly had.  The manager simply told the applicant not to turn up at work again.  However, counsel submitted that any breach of procedural fairness was, at the best, a technical breach.  He did not expand on why the breach should be viewed in this way.  It is a difficult submission for counsel to make good.  The dismissal was in complete disregard of the respondent's obligations under the section (assuming of course that the Act applied to the applicant's employment).  The section is not "technical" in any sense of that word.  The legislature has determined that an employee has a right to defend herself or himself against any allegation relating to the employee's conduct or performance.  That is a valuable right.  As Wilcox CJ said in Nicolson v Heaven & Earth Gallery Pty Limited (1994) 1 IRCR 199 at 209-210:

"Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as 'nature justice' or, more recently, 'procedural fairness'.  The relevant principle is that a person should not exercise legal power over another, to that person's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case.  The principle is well-established in public administrative law.  It was accepted into international labour law when Art 7 was inserted in the Termination of Employment Convention.   Section 170DC is directly modelled on Art 7.  The principle is, I believe, well understood in the community.   It represents part of what Australians call 'a fair go'.  In the context of 170DC, it is not to be treated lightly.  The employee is to be given the opportunity to defend himself or herself 'against the allegations made'; that is, the particular allegations of misconduct or poor performance that are putting the employee's job at risk.  Section 170DC(a) is not satisfied by a mere exhortation to improve."

Accordingly, the termination of the applicant's employment was in contravention of s 170DC of the Act.

Valid reason for termination.

Counsel for the respondent submitted that the applicant's unexplained absences from work on two occasions provided a valid reason for his termination on any of three bases.  First, it was submitted that the applicant had failed to comply with clause 40 of the award which required an employee to notify the employer of an intended absence.  Secondly, it was submitted that there was an implied term of the applicant's employment that he inform the employer of any intended absences.  Thirdly, it was submitted that an incident of the employment that an employee inform the employer if the employee is going to be absent.

The respondent's reliance on clause 40 is misguided.  That clause only applies in respect of an employee who had at least three month's service with the same employer and related to the eligibility to be paid sick leave.  The applicant did not fall within clause 40 of the award.

Nor do I agree that there was an implied term of the employment as alleged.  Counsel did not address any submissions as to the circumstances in which any such implication might arise.  It cannot be said that a such a term fulfilled the conditions necessary for the term to be implied into a contract: BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266.

Finally, counsel for the respondent relied upon the following passage at page 6, of the Judicial Registrar's decision:

"True it is that the applicant did not notify his employer in advance that he was to be absent. I accept that he was obliged to do that.  It was certainly a transgression that he did not do that but there is a distinction to be drawn, in my opinion, between simply taking time off for no good reason and being unable to work because of injury, injury which was no fault of his.  I do not seek to excuse the applicant's failure to notify his employer that he was not going to come to work and I am at pains to say that."

The Judicial Registrar did not state the basis upon which he considered that there was an obligation to notify the employer if the employee was to be absent.  He did not find that it was a term of the employment, nor did he link that statement with any provision of the award.  It may be that, having regard to the nature and circumstances of particular employment, an unexplained absence or absences may provide a valid reason for termination.   However, there is no evidence to establish that this would be a valid ground for termination in this case.  In any event, I agree with the Judicial Registrar's conclusion that in the circumstances of this case, there was a good reason for the absence on both occasions.  The applicant was injured and he did not have access to a phone.   Accordingly, the respondent has not satisfied its onus under s 170DE.

Even if I am wrong in this regard, I am satisfied that the termination was harsh unjust or unreasonable within the meaning of s 170DE(2).  The applicant on each occasion of his absence was injured.  He did not have ready access to a phone.  He had not been advised that he should inform his employer if he was unable to attend work.  He was not warned that his employment was in jeopardy for having failed to so inform his employer.   It would be unreasonable in such circumstances to terminate the applicant's employment on the occasion of his second absence.

Judicial Registrar's award of compensation

Counsel for the applicant sought to argue that as the breach of s 170 DC was only technical, a cautious approach to damages should have been taken.  It was submitted that the Judicial Registrar had, by awarding damages for a period of about 8 months, incorrectly exercised his discretion under the Act.  Section 170EE provides for the following orders which may be made where a party is in breach of s 170 DE or DC: 

"(1) In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may make the following orders:

(a)  an order requiring the employer to reinstate the employee by:

(i)  reappointing the employee to the position in which the employee was employed immediately before the termination;  or

(ii) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination;  and

(b)  if the Court makes an order under paragraph (a):

(i)  any order that it thinks necessary to maintain the continuity of the employee's employment;  and

(ii) an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination.

(2)  If the court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate."

The applicant does not seek reinstatement.  He submitted that his relationship with the employer as a result of his termination has been so poor that reinstatement is not reasonably practical.  The respondent does not argue to the contrary.

The applicant was unemployed from the date of his dismissal until 23 April 1995.  The Judicial Registrar was satisfied that the applicant diligently tried to find work in the meantime; that he was not a "slacker"; that it was through no fault of his own that he was unable to find alternative employment; and that he suffered a significant financial loss because of the termination of his employment.  The Judicial Registrar thus awarded damages for the period that the applicant was off work, less the amount which the applicant had received by way of unemployment benefits.

Counsel for the respondent submitted that this resulted in the award of excessive damages and in effect provided a windfall gain to the plaintiff.  I do not agree.  The specific findings of the Judicial Registrar on this point were not challenged.  The only challenge was that the question of damages should be viewed from the employer's viewpoint, namely, that it had committed a technical breach only.  As I have said, I do not consider that is an appropriate description of the respondent's breach of s 170DC, or, for that matter, s 170DE.  In my opinion there was no error in the approach of the Judicial Registrar and I would not interfere with the award which he made, had the applicant been entitled to the benefits of the Act.

Conclusion

Having regard to my finding in respect of reg 30B(1)(c), the orders of the Judicial Registrar should be set aside.

I certify that this and the preceding 21 pages

are a true copy of the Reasons for Judgment

of the Honourable Justice Beazley.

Associate:

Dated:    28 March 1996

APPEARANCES

Applicant:   Applicant in person

Counsel for the Respondent:       Mr Higgins

Solicitors for the Respondent:    Messrs Mallesons Stephen Jacques

Dates of hearing:                 18 December 1995

Place of Hearing:                 Dubbo