INDUSTRIAL LAW - Termination of employment - Claim of unlawful termination - Application for interim or interlocutory injunction restraining proposed termination - Alternatively, application for interim reinstatement order to take effect immediately after termination - Whether Court has power to make such orders - Proper exercise of Court's discretion.
The application for interlocutory relief be refused.
The matter be referred to the Australian Industrial Relations Commission for conciliation pursuant to s.170ED of the Industrial Relations Act 1988.
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 137 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN: ALASTAIR DUNHAM
Applicant
AND:RANDWICK IMAGING PTY LIMITED
Respondent
CORAM:WILCOX CJ
PLACE: SYDNEY DATE: 27 MAY 1994
REASONS FOR JUDGMENT
WILCOX CJ: These reasons for judgment relate to an application by an employee, Alistair Dunham, for an interim order restraining his employer, Randwick Imaging Pty Limited, ("Randwick Imaging") from terminating his employment.
The facts
Randwick Imaging provides services for a company that conducts a radiology practice in seven locations at Sydney, the main centre being at Randwick. The company is controlled by five medical practitioners, referred to in the affidavit evidence as "the partners". Its affairs are managed by a general manager, Douglas Newman.
Mr Dunham is a qualified radiographer. He commenced employment with Randwick Imaging on 2 January 1992. On 7 December 1992, he was appointed Acting Chief Radiographer. He was confirmed in that position on 1 March 1993. As Chief Radiographer, Mr Dunham was in charge of approximately 30 professional staff.
The affidavit evidence refers to differences between Mr Dunham, on the one hand, and Mr Newman and some of "the partners", on the other, after his appointment as Chief Radiographer. I need not detail these differences. Counsel agreed it was unnecessary, for present purposes, to consider the merits of the positions taken by the protagonists. They were content that I note that there were differences about a number of issues and deal with the application for interim relief on the basis that there may have been some merit in each party's position in respect of them. However, it is important also to note that the number of complaints (justified or not) made to Mr Dunham about his work performance increased in the early months of 1994.
On 23 March 1994, Mr Newman told Mr Dunham that the practice had taken a decision to replace him and he could either…
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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AGLC
Siagian v Sanel [1994] IRCA 2
Case
[1994] IRCA 2
Decision Date
CaseChat Overview and Summary
In the case of Siagian v Sanel, the Industrial Relations Court was tasked with determining whether it had the power to grant interim relief in the form of an injunction or reinstatement order to an employee, Alistair Dunham, who was facing termination of his employment by his employer, Randwick Imaging Pty Limited. The Court was required to decide if the Industrial Relations Act 1988 conferred such powers and whether the Court should exercise its discretion to grant such relief.
The Court considered the relevant statutory provisions, particularly sections 170EE, 170EH, 419, and 431 of the Industrial Relations Act. The Court found that while section 431 generally empowered it to grant injunctions to prevent contraventions of the Act, section 170EH specifically excluded the application of this power to termination of employment cases governed by Subdivision B of Division 3 of Part VIA. Furthermore, the Court held that although section 419 gave it broad power to make orders, this power was subject to jurisdictional limits set by specific statutes, such as the Industrial Relations Act, and could not be used to circumvent those limits. The Court also concluded that section 170EE(4) was a saving provision and did not confer additional power to grant interim relief.
The Court further reasoned that granting interim relief in such cases could lead to an undue burden on the Court and potentially subvert the legislative scheme that prioritised conciliation over litigation. It also noted that the applicant's delay in seeking interim relief and the acrimonious relationship between the applicant and his employer were factors against granting the requested relief.
In light of these findings, the Court refused the application for interim relief and ordered that the matter be referred to the Australian Industrial Relations Commission for conciliation, in accordance with section 170ED of the Industrial Relations Act.