Stannard, in the matter of an application for a Writ of Mandamus and a Writ of Certiorari against Honourable Vice President McIntyre
[2004] FCAFC 310
•25 NOVEMBER 2004
FEDERAL COURT OF AUSTRALIA
Stannard, in the matter of an application for a Writ of Mandamus and a Writ of Certiorari against Honourable Vice President McIntyre [2004] FCAFC 310
INDUSTRIAL LAW – application to set aside decision of Australian Industrial Relations Commission (‘Commission’) – dismissal from employment – initial application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) unsuccessful – where applicant then applied for relief under Workplace Relations Act 1996 (Cth), on grounds that termination was ‘harsh, unjust or unreasonable’ – where Commission considered that the application was barred by s 170HB because a remedy in respect of the same termination had previously been sought – whether Commission had jurisdiction to entertain the application – whether initial application ‘commenced under’ a law of the Commonwealth – whether initial application was seeking a remedy founded on the termination
PRACTICE & PROCEDURE – jurisdiction – extent of a statute’s withdrawal of the jurisdiction of a court
WORDS & PHRASES – ‘commenced under’, ‘in respect of’, ‘termination’
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6
Public Services Act 1922 (Cth) s 82AH
Workplace Relations Act 1996 (Cth) ss 4, 170CA, 170CB, 170CD, 170CE, 170CK, 170CL, 170CM, 170CN, 170FA, 170HBAutomatic Fire Sprinklers Proprietary Limited v Watson (1946) 72 CLR 454 cited
Boddington v British Transport Police [1992] 2 AC 143 referred to
Brackenridge v Toyota Motor Corporation Australia Limited (1996) 67 IR 162 referred to
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618 citedDirector General of Education v Suttling (1987) 162 CLR 427 referred to
Knight v FP Special Assets Ltd (1992) 174 CLR 178 cited
Laz v Downer Group Ltd (2000) 108 IR 244 referred to
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 referred to
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 consideredQantas Airway Limited v Christie (1998) 193 CLR 280 referred to
Workers’ Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642 applied, in dissent
HWR Wade, “Unlawful Administrative Action: Void or Voidable” (1967) 83 Law Quarterly Review 499; (1968) 84 Law Quarterly Review 95
IN THE MATTER OF AN APPLICATION FOR A WRIT OF MANDAMUS AND A WRIT OF CERTIORARI AGAINST THE HONOURABLE VICE PRESIDENT MCINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT HARRISON and COMMISSIONER LAWSON, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND COMMONWEALTH OF AUSTRALIA; EX PARTE JEFFREY RAYMOND KEITH STANNARD
Q 96 OF 2003
MADGWICK, FINKELSTEIN & DOWSETT JJ
25 NOVEMBER 2004BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 96 of 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
IN THE MATTER OF AN APPLICATION FOR A WRIT OF MANDAMUS AND A WRIT OF CERTIORARI
BETWEEN:
JEFFREY RAYMOND KEITH STANNARD
Prosecutor/ApplicantAND:
THE HONOURABLE VICE PRESIDENT MCINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT HARRISON AND COMMISSIONER LAWSON, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First RespondentCOMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGES:
MADGWICK, FINKELSTEIN & DOWSETT JJ
DATE OF ORDER:
25 NOVEMBER 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.Order absolute for a writ of certiorari issue to the Australian Industrial Relations Commission removing into this Court and quashing the decision of the Commission dated 22 November 2001.
2.Order absolute for a writ of mandamus directed to the Commission requiring it to determine the applicant's claim in accordance with its merits and according to law.
3.The second respondent pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 96 of 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
IN THE MATTER OF AN APPLICATION FOR A WRIT OF MANDAMUS AND A WRIT OF CERTIORARI
BETWEEN:
JEFFREY RAYMOND KEITH STANNARD
Prosecutor/ApplicantAND:
THE HONOURABLE VICE PRESIDENT MCINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT HARRISON AND COMMISSIONER LAWSON, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First RespondentCOMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGES:
MADGWICK, FINKELSTEIN & DOWSETT JJ
DATE:
25 NOVEMBER 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
MADGWICK J:
I have had the advantage of reading in draft the judgments of Finkelstein and Dowsett JJ which outline the facts of this case. I agree with the conclusion reached by Finkelstein J but for somewhat different reasons.
All statutory construction of federal legislation is to be both purposive and text-based: s 15AA Acts Interpretation Act 1901 (Cth); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618 at 634-5; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 509. What purposes ought properly be imputed to the Parliament in relation to s 170HB(1)(e)?
Section 170HB is part of the legislative scheme enacted by Div 3 headed ‘Termination of Employment’ of Part VIA, headed ‘Minimum Entitlements of Employees’,
of the Workplace Relations Act 1996 (Cth) (‘the Act’). Statutory guidance as to the objectives of the Division is provided in s 170CA which is in the following terms:
‘(1) The principal object of this Division is:
(a)to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee's employment in certain circumstances; and
(b)to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and
(c)to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and
(d)to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and
(e)by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivisions D and E, to assist in giving effect to the Termination of Employment Convention.
(2)The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a “fair go all round” is accorded to both the employer and employee concerned.’
The Division is divided into Subdivisions. Subdivision A (ss 170CA-170CD) is aptly headed ‘Object, application and definitions’. Subdivision B (ss 170CE-170CJ) gives a right to certain employees to apply to the Workplace Relations Commission for relief in respect of termination of employment on certain grounds, and gives the Workplace Relations Commission the power to give relief by way of arbitration in certain circumstances.
Subdivision C (ss 170CK – 170CT) prohibits or limits termination of employment on grounds that, broadly, offend human rights values; are based on redundancy grounds; are not preceded by prescribed due notice or payment in lieu of it; or would contravene any orders of the Commission concerning severance pay or consultation in redundancy cases.
Subdivision C provides that contraventions of its relevant provisions are to be vindicated by application to a court. Subdivisions CA, D, E and G are not relevant to the present proceedings.
Subdivision F (ss 170HA-170HC) is headed ‘Other rights relating to termination of employment’. It will be necessary to consider this Subdivision in some detail.
By virtue of s 170CB, the Subdivision C prohibitions and limitations on terminations of employment apply in respect of employees generally, no doubt in constitutional reliance on the external affairs power and the partial giving of effect to the relevant international conventions. However, the Subdivision B right to approach the Commission for relief in relation to allegedly harsh, unjust or unreasonable termination of employment is only given to certain classes of employees (s 170CB(1)):
‘(a) a Commonwealth public sector employee; or
(b) a Territory employee; or(c)a Federal award employee who was employed by a constitutional corporation;…’ (emphasis added)
The emphasised terms are defined in s 170CD.
The legislative approach seems to have been to limit the right to seek such relief to employees regarded as properly within the sphere of Commonwealth industrial relations regulation, including to all employees in the Territories. Historically, Territory employees’ terms and conditions of employment were regulated by Commonwealth common rule awards. Section 170CC permits the exclusion of certain classes of employees, notably probationers and short-term casuals, from specified provisions of the Division.
Subdivision B allows the Commission to be approached on the harsh unjust or unreasonable ground or on the ‘breach of Convention’ type grounds set out in Subdivision C (ss 170CK to 170CN inclusive). The Commission is in all such cases to attempt conciliation: s 170CF.
Section 170CFA contains elaborate provisions requiring election by an applicant where conciliation has been or is likely to be unsuccessful as to one or more of the grounds upon which the Commission has been approached. The scheme is that arbitration by the Commission is made available as the remedy for putatively harsh etc. termination of employment, but for contravention of any of the Subdivision C provisions, proceedings in a court legislatively deemed appropriate to that task are mandated.
The provisions of Subdivision F are as follows:
Subdivision F-Other rights relating to termination of employment
170HA Division not to limit other rights
Subject only to the operation of sections 170HB and 170HC, the provisions of this Division are not intended to limit any rights that a person or trade union may have to appeal against termination of employment or to secure the making of awards or orders relating to termination of employment.170HB Applications alleging harsh, unjust or unreasonable termination
(1)An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the prior proceedings) for a remedy in respect of that termination have been commenced by or on behalf of that employee:
(a) under another provision of this Act; or
(b) under another law of the Commonwealth; or
(c) under a law of a State or Territory;alleging that the termination was:
(d) harsh, unjust or unreasonable (however described); or
(e) unlawful;for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.
(2)Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:
(a)have been discontinued by the party who began the proceedings; or
(b)have failed for want of jurisdiction.
(3)For the avoidance of doubt, a proceeding under this Act or any other law of the Commonwealth or under a law of a State or Territory seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation:
(a)to give adequate notice of the termination; or
(b)to provide a severance payment as a result of the termination; or
(c)to provide any other entitlement payable as a result of the termination;
is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination.
(4)If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application:
(a)is discontinued by the applicant; or
(b)fails for want of jurisdiction.’
170HBA No second applications under section 170CE concerning same termination to be made
An application must not be made under section 170CE in relation to a termination of employment of an employee where a previous application under section 170CE was made in respect of the same termination unless the second application corrects an error in the previous application, or the Commission considers that it would be fair to accept the second application.170HC Applications alleging contravention of section 170CK
(1)An application must not be made under section 170CE on the ground that the termination of an employee's employment constitutes an alleged contravention of section 170CK because it was done for a reason set out in subsection 170CK(2) if proceedings (the prior proceedings ) for a remedy in respect of that termination have been commenced by or on behalf of that employee:
(a)under another provision of this Act; or
(b)under another law of the Commonwealth; or
(c)under a law of a State or Territory;
alleging that the termination was unlawful because it was done for such a reason.
(2)Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:
(a)have been discontinued by the party who began the proceedings; or
(b)have failed for want of jurisdiction.
(3)If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before that application would, because of the operation of subsection (1), have prevented that application unless the application:
(a)is discontinued by the applicant; or
(b)fails for want of jurisdiction.’
A number of observations may be made as to the legislative policy inherent in these provisions:
(1)A general intention to limit, but not entirely to prevent, multiple proceedings in relation to a disputed termination of employment is evident.
(2)A mistaken approach to another court or tribunal by a disaffected employee contesting his or her termination of employment (‘an ex-employee’) might nevertheless expose an employer to be ‘twice-vexed’: either by such proceeding failing for want of jurisdiction or by its discontinuance, even at a very late stage.
(3)Even ‘merits review’ involving a consideration of alleged harshness etc of an employer’s decision to terminate might be twice litigated, under the rubric of ‘failure to provide a benefit to which the employee was entitled on termination’ (see s 170HB(1) and (3)). Whether there was a failure to give adequate notice, for example, may depend on whether the employee was guilty of serious misconduct: see s 170CM(1).
(4)Under s 170HB(1) (and see also s 170HC(1)), it is only proceedings ‘commenced … under’ a provision of the Act, another law of the Commonwealth or a law of a State or Territory making allegations of harshness etc or unlawfulness that limit the right to apply to the Commission. Proceedings by way of constitutional writ for a Commonwealth public servant or under the common law (e.g. for breach of contract) would or may not have this effect. This is further touched on below at [24].
(5)Applications to the Commission are limited co-extensively with the limitation on other proceedings brought about by an application to the Commission: see s 170HB(4) and 170HC(3).
The last matter raises an important point: existing rights to approach a court may be lost if an application is made to the Commission under s 170CE. That is to say, questions of the extent of a statute’s withdrawal of the courts’ jurisdiction (including this court’s jurisdiction) are involved. It is well-settled that the statutory grant of jurisdiction to a court is to be very generously construed: see the cases collected by Allsop J in ACTEW Corp v Pangallo (2002) 127 FCR 1 at 23. By parity of reasoning, it appears equally appropriate that the statutory withdrawal of jurisdiction should be jealously construed. If that is so, then there would be here a corresponding diminution in the extent to which applications to the Commission would be limited as a result of the institution of a proceeding in a court.
Further, the rationale for so construing grants of jurisdiction to a court generously is that ex hypothesi the jurisdiction will be fairly exercised (see Knight v FP Special Assets Ltd (1992) 174 CLR 178 per Mason CJ and Deane J at 185, per Gaudron J at 205) and/or exercised so as not to give rise to abuse (ibid per Mason CJ and Deane J). The Australian Industrial Relations Commission is not a court but it has some strongly quasi-curial aspects. The Presidential Members are given the same rank, status and precedence as judges of this Court (s 9); the President is to be qualified as for such a judge (s 10(1)); the Presidential Members are to be similarly qualified or to have high level experience or to have relevant tertiary qualifications (s 10(2)). All Commissioners are to have appropriate skills and experience in industrial relations (s 10(2) and (3)). In Australia, such skills and experience imply, among other matters, knowledge of the legal requirements of quasi-judicial tribunals, including the substance of the duty to act fairly. To some extent, statutory provisions which vest the Commission with jurisdiction should, on account of its nature, be generously construed.
As mentioned, Division 3 itself falls within Part VIA of the Act, entitled ‘Minimum Entitlements of Employees’. Its contents confirm that it confers rights on employees. Tolerance by the common law of lawful but harsh terminations of employment by employers has been ameliorated. Remedial statutory provisions should, in case of ambiguity, be generously construed.
Under s 170CA(1)(c) and (2) the provisions of remedies, as well as other aspects of the scheme, are intended to ensure a ‘fair go all round’ on the consideration of an application.
So much suggests that, to the full extent to which the language of the Act will bear it, the limitation of the jurisdiction of the Court inherent in s 170HB(4) and the corresponding limitation of the Commission’s jurisdiction under s 170HB(1) should be minimised.
The disqualificatory requirement in s 170HB(1) is that:
‘proceedings … for a remedy in respect of [a] termination have been commenced …:
(a)under another provision of the Act; or
(b)under another law of the Commonwealth; or
(c)under a law of a State or Territory.’
alleging that the termination was:
(d) harsh, unjust or unreasonable (however described); or
(e) unlawful;for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.’
This might mean that:
(a)the jurisdictional/procedural basis for the proceedings is such a provision or law, or
(b)the substantive rationale of the proceeding, the allegation of injustice etc or unlawfulness and the ‘reason’ for such alleged injustice or unlawfulness is asserted in reliance on a standard expressed by such a provision or law.
It seems to me that the latter is the preferable construction, for the following reasons.
Firstly, this accords better with the Australian industrial relations and human rights settings. The Act itself contains provisions outside Part VIA, making termination of employment unlawful for various reasons, for example termination for engaging in ‘protected action’ (s 170MU) and termination for membership etc of an industrial organisation (ss 298K and 298L). Other laws of the Commonwealth also make certain terminations of employment unlawful. An example is s 15(2)(c) of the Disability Discrimination Act 1992 (Cth) which renders it unlawful for an employee
‘…to discriminate against an employee on the ground of the employee’s disability…
…
(c) by dismissing the employee’.The States and Territories might also well provide by statute, and some have, for their own tribunals to have jurisdiction over allegedly harsh (or some near synonym for harsh), if lawful, terminations of employment and prohibiting terminations of employment for various
reasons, notably on human rights discriminatory grounds, or in order to protect free participation in their own industrial relations system.
Secondly, such an inferred legislative policy accords well with that expressly adopted in relation to the provisions of Division 3 and Part VIA of the Act themselves, notably s 170CK(2) which, as mentioned above, prohibits the termination of an employee’s employment for a range of reasons, some in vindication of human rights, and some protective of the industrial relations system contemplated and established by the Act.
Thirdly, this keeps to a sensible minimum the extent of the statutory limitation of this Court’s (and other courts’) jurisdiction. In relation to the present matter, it avoids any necessity that, having regard to its terms, the Act should be read down so as to avoid an unconstitutional denial of the right of a Commonwealth public servant, disappointed in the Commission, to seek a constitutional writ to challenge the validity of his or her termination. Likewise, it avoids the oddity of a legal challenge being able to be made by an individual approaching the High Court at first instance about loss of a job, but being unable to approach the more generally suitable courts for such a challenge.
Fourthly, the first approach would have the likely effect of prohibiting double litigation of claims asserted on common law grounds brought in purely statutory courts such as local and district courts but not where they are brought in courts having an existence anterior to State or Commonwealth statutes or as a result of constitutional establishment or implied entrenchment (c.f. s 73(ii) of the Constitution), that is, at least some of the State Supreme Courts and the High Court. (For the reasons given by Finkelstein J, ‘laws’ means statutory laws). That would be a very unsatisfactory outcome and one not lightly to be attributed to Parliament as its inferred intention.
This still leaves for determination whether the applicant’s initial application to this Court for a remedy in respect of his termination was commenced in the relevant sense ‘under’ a law of the Commonwealth. In my opinion it was not.
The applicant brought such application as provided for by the Administrative Decisions Judicial Review Act 1977 (the ‘ADJR Act’). He relied on grounds set out in s 6 of the ADJR Act. It may be assumed (without deciding) for the purposes of the present discussion, that the statutory provision of the relevant grounds amounts to imposing implicit statutory requirements on the makers of decisions to which that Act applies, even though most of those grounds are merely declaratory of the common law. Nevertheless, that Act does not say anything as to the lawfulness or otherwise of purported termination of employment. Its subject is the lawfulness of administrative decisions of very many kinds on general administrative law grounds. That the applicant might, as he considered, have been able to pray such generalities in his aid in relation to the decision to terminate his employment does not convert his claim into a ‘remedy in respect of that termination ... under’ that Act, in the relevant sense of the word ‘under’. The remedy under that Act was not a termination-related one but one related to public decision-making and administrative law. That it would or might have had a consequentially beneficial effect for him in relation to the termination was, in my opinion, not what s 170HB should be taken to have been concerned with.
I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.
Associate:
Dated: 24 November 2004
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 96 of 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
IN THE MATTER OF AN APPLICATION FOR A WRIT OF MANDAMUS AND A WRIT OF CERTIORARI
BETWEEN:
JEFFREY RAYMOND KEITH STANNARD
Prosecutor/ApplicantAND:
THE HONOURABLE VICE PRESIDENT MCINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT HARRISON AND COMMISSIONER LAWSON, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First RespondentCOMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGES:
MADGWICK, FINKELSTEIN & DOWSETT JJ
DATE:
25 NOVEMBER 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
FINKELSTEIN J:
In November 1990 the prosecutor was appointed to an office in the public service. The office was within the Australian Tax Office (ATO). In that position the prosecutor had access to ATO databases. Those databases contained confidential information relating to the affairs of taxpayers. The prosecutor made use of some of that confidential information otherwise than in the performance of his duties. Consequently, in July 1998 he was charged with three counts of misconduct under ss 55 and 56 of the Public Service Act 1922 (Cth). Before the charges were dealt with, the Public Service Act 1922 was repealed by the Public Service Act 1999 (Cth). Nevertheless, by the combined effect of s 14(3) of the Public Employment (Consequential and Transitional) Amendment Act 1999 (Cth) and reg 2.19(2) of the Public Employment (Consequential and Transitional) Regulations 1999, the repealed Act continued to apply in relation to the charges. An investigating officer was appointed under s 62(1) to hold an inquiry into the charges. Following his inquiry the investigating officer directed that the prosecutor be dismissed from the service. The direction was given under s 62(6)(b). By s 62(10) the direction (if validly given) took effect from the day that the prosecutor was given particulars of the reasons for the direction. He received the particulars on 18 February 2000.
On 14 March 2000, the prosecutor filed an application in the Federal Court under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of the investigating officer’s decision. In that application the prosecutor sought, among other things, “an order quashing the decision of [the investigating officer] … directing that the [prosecutor] be dismissed from the Public Service”. The grounds for review were that: (1) there had been a breach of the rules of natural justice; (2) the investigating officer took irrelevant considerations into account; (3) the officer failed to take relevant considerations into account; (4) the investigating officer exercised his power in a way that was so unreasonable that no reasonable person could have exercised the power; and (5) the decision involved an error of law. Following a hearing on the merits the application was dismissed.
Historically, the common law looked with disfavour on employees. Contracts for service would not be specifically enforced, except in very special circumstances. An employer could terminate the contract at any time, whether for good reason or not. If the contract was wrongfully terminated, (the common expression is wrongful dismissal), the employee could only recover damages limited to the payment of wages he would have earned during the period of notice to which he was entitled. But from this payment would be deducted any amount which he earned (or through his fault did not earn) during the period of notice. The damages would not include compensation for the manner of the dismissal or compensation for injured feelings, at least if Addis v Gramophone Company, Limited [1909] AC 488, is good law. Now, at least in some jurisdictions, courts are beginning to recognise that the physical, financial and psychological welfare of employees deserves some protection. In England, for example, there has been developed the implied term of trust and confidence which acts as a break on what might otherwise be an employer’s unreasonable conduct: Malik v Bank of Credit and Commerce International S.A (In Compulsory Liquidation) [1998] AC 20. In both Canada and New Zealand Addis v Gramophone Company, Limited [1909] AC 488 has not been followed: Wallace v United Grain Growers Ltd. (1997) 152 DLR (4th)1; Whelan v Waitaki Meats Ltd [1991] 2 NZLR 74; Ogilvy & Mather (New Zealand) Ltd v Turner [1994] 1 NZLR 641. In Australia, state and federal parliaments have introduced unfair dismissal legislation. At the federal level the relevant provisions are to be found in Part VIA, Div 3 of the Workplace Relations Act 1996 (Cth), comprising ss 170CA to 170HI.
Following the dismissal of his judicial review application, the prosecutor filed an application with the Australian Industrial Relations Commission under s 170CE(1) for relief in respect of the termination of his employment. The Department of Families and Community Services, a non-existent body, was the named respondent. Section 170CE(1) provides:
“Subject to subsections (5) and (5A), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:
(a)on the ground that the termination was harsh, unjust or unreasonable; or
(b)on the ground of an alleged contravention of section 170CK, 170CL, 170CM or 170CN; or
(c)on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a).”
The application was based “on the ground that the termination was harsh, unjust or unreasonable”. The relief which the prosecutor sought was reinstatement and damages: see s 170CH(3) and (4).
The application to the Commission was out of time. Section 170CE(7) of the Act, as it stood in 2000, provided that an application under subsection (1) “must be lodged within 21 days after the day on which the termination took effect”. The current provision is much the same. The prosecutor sought an extension nunc pro tunc of the time within which to file his application. The extension was granted by a single member of the Commission.
The Minister administering the Department of Family and Community Services appealed to the Full Bench of the Commission against the order granting the extension. Only one ground of appeal is relevant. The Minister contended that irrespective of the merits of the prosecutor’s case for an extension of time, “the Commission was bound by s 170HB(1) of the Workplace Relations Act 1996 to hold that it had no jurisdiction to entertain [the prosecutor’s] application under s 170CE(1)”. Section 170HB(1) provides:
“An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the prior proceedings) for a remedy in respect of that termination have been commenced by or on behalf of that employee:
a. under another provision of this Act; or
b. under another law of the Commonwealth; or
c. under a law of a State or Territory;alleging that the termination was:
d. harsh, unjust or unreasonable (however described); or
e. unlawful;for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.”
The Full Bench upheld this submission. The Full Bench said:
“In our view, each of the three grounds of [the prosecutor’s] Federal Court application alleged that his termination was unlawful. The first because a breach of the rules of natural justice had occurred in connection with the making of the decision to dismiss him. The second because the making of the decision to dismiss him was an improper exercise of the power conferred by the Public Service Act 1922. The third because the decision to dismiss him involved an error of law”.
For that reason, the Full Bench allowed the appeal and quashed the decision of the Commission granting the extension of time.
The prosecutor brought an application in the High Court for an order nisi for a writ of certiorari directed to the Commission to quash the decision of the Full Bench. That application has been remitted to the Federal Court for determination.
The central questions on this application concern the interpretation to be given to the words “the termination” and to the phrases “a remedy in respect of that termination” and “alleging that the termination was … unlawful” in s 170HB(1). Before turning to those questions it is necessary to look a little more closely at s 170CE, the section which creates the cause of action that, by reason of the operation of s 170HB, it is said the prosecutor is precluded from pursuing.
Part VIA Div 3 of the Workplace Relations Act has as two of its objects: (1) to provide for remedies where the termination of an employee’s employment is harsh, unjust or unreasonable; and (2) to provide for sanctions where a termination, or proposed termination, is found to be unlawful: ss 170CA(1)(c) and (d). Neither the word “termination” nor “unlawful” is defined in the Workplace Relations Act, although s 170CD(1) provides that “termination or termination of employment” means “termination of employment at the initiative of the employer”. However, by s 170CD(1B) termination or termination of employment may include demotion if two conditions, which need not be mentioned, are satisfied.
The only person entitled to bring an application to the Commission under s 170CE is an “employee” whose employment has been “terminated” by the employer. To obtain relief the employee must establish that “the termination of his employment” was either harsh, unjust or unreasonable (s 170CE(1)(a)) or that it was in contravention of one of a number of provisions located in Subdivision C: see s 170CE(1)(b). To bring an application for relief on the ground that the termination was harsh, unjust or unreasonable the employee must satisfy the qualifying period for employment set out in ss 170CE(5A) and (5B). The qualifying period must be satisfied either (a) at the time when the employer gave the employee notice of his termination; or (b) the time when the employer “terminated the employee’s employment”. Thereafter the application to the Commission must be lodged within 21 from the day on which “the termination” took effect, unless the Commission extends the period: s 170CE(7). If an employee is successful in establishing that “the termination” was harsh, unjust or unreasonable or in contravention of one of the stipulated sections mentioned in s 170CE(1)(b), various remedies are available. The remedies include reinstatement or the appointment of the employee to another position on terms and conditions no less favourable than those on which the employee had been “employed immediately before the termination”: s 170CH(3). If reinstatement is inappropriate, the Commission may order the employer to pay the employee an amount in lieu of reinstatement: s 170CH(6). In calculating that amount the Commission must have regard to among other things, “the length of the employee’s service” and the remuneration the employee would have received if the “employee’s employment had not been terminated”: s 170CH(7).
It will by now be evident that central to every aspect of a claim under s 170CE (the action itself, the period within which it must be commenced and the relief that is available) is the “termination” of an applicant’s employment. Indeed, in any application under s 170CE the applicant must establish the following “facts” before the Commission can consider whether there has been a “termination” of employment on a proscribed ground: (1) That the applicant had been employed by the respondent; (2) That the applicant’s employment has been terminated; and (3) That it was the respondent who terminated the employment. No useful purpose would be served in determining whether any of these “facts” are jurisdictional or elements of the cause of action created by s 170CE. It is sufficient to say that if any one of these “facts” is not established, and some may well be controversial, the claim under s 170CE must fail.
What in the context of s 170CE is meant by “termination” of employment? To answer this question it is necessary to consider, first the position of an employee under an employment contract and then to look at the position of government employees (or Crown servants as they used to be called). In the case of employment contracts, termination may be by operation of law (such as on the death of the employee or the compulsory winding up of the employer if it be a company), by agreement, by notice when notice is required, by dismissal following breach (sometimes called summary dismissal) or by acceptance of repudiatory conduct. An employment contract can also come to an end by effluxion of time (in the case of a fixed term contract) or by performance (for example when an employee is engaged to perform a specific task and the work is completed). Sometimes termination by effluxion of time or by performance is referred to as termination by non-renewal: see for example M Freedland, The Personal Employment Contract (2003) at 295-296.
The case of wrongful dismissal is a little more complex. By wrongful dismissal I mean the dismissal of an employee in breach of the employer’s duty to maintain the employment relationship. Examples of wrongful dismissal include where the employer without proper notice terminates the employment contract, refuses to provide tasks for the employee to perform, or refuses to pay the employee the wages to which he is entitled. In accordance with well settled principles of contract law, in each of these circumstances the employee would be entitled to treat the employment contract as discharged. But if the employee does not take that step, there is a long line of cases which hold that a wrongful dismissal will automatically bring to an end the “employment relationship” while leaving standing the employment contract: Automatic Fire Sprinklers Proprietary Limited v Watson (1946) 72 CLR 435, 454. The continued existence of the employment contract is, however, of little moment to the employee; the wrongful dismissal operates to discharge the employee from the obligation to render any further services, and as wages are only paid for work that is performed, the employee cannot recover the amount that he would have been paid if work had been made available: Automatic Fire Sprinklers Proprietary Limited v Watson (1946) 72 CLR 435, 465. See also Byrne v Australian Airlines Limited (1995) 185 CLR 410, 427-428.
Returning to s 170CE, there can be no doubt that termination by notice given to the employee, the acceptance of repudiatory conduct or by summary dismissal can all amount to the “termination” of the employment for the purposes of the section. The termination of the employment relationship where the employment contract remains on foot however, presents some difficulty. To date, the authorities have held that this also falls within s 170CE: Brackenridge v Toyota Motor Corporation Australia Limited (1996) 67 IR 162; Laz v Downer Group Ltd (2000) 108 IR 244. On the other hand, termination by non-renewal is not termination by the employer, even when it is the employer who refuses to renew the employment contract: Qantas Airway Limited v Christie (1998) 193 CLR 280, 302
The situation of public servants may be different. First it should be noted that Part VIA, Div 3 of the Workplace Relations Act applies to an employee who was “before the termination” of his employment a “Commonwealth public sector employee”: s 170CB(1). Commonwealth public sector employees are defined to include a person in employment “by authority of a law of the Commonwealth”: s 170CD(1)(c). It is common ground that by virtue of the position the prosecutor held in the public service he was a Commonwealth public sector employee and, therefore, a person who could, on loss of office, bring a claim under s 170CE.
The circumstances in which the employment of a public servant is terminated are not the same as an employee under an employment contract. Under the common law, the power to dismiss a Crown servant could be exercised at any time and for any reason at all: that is, a Crown servant held his appointment at pleasure: Fletcher v Nott (1938) 60 CLR 55, 67, 72, 74, 77-78. The right of dismissal at pleasure could, however, be removed by statute: Gould v Stuart [1986] AC 575. The right has been removed in the case of most public servants.
Under the Public Service Act 1922, apart from resignation, an officer held office until he reached the maximum retirement age (s 76V) or was deemed to have retired due to unauthorised absence (s 82AJ). The officer’s employment could also be terminated for one of the grounds specified in s 82AH. These included that the officer had wilfully disobeyed or disregarded a direction given by his superior; inefficiency or incompetency; neglect or carelessness in the discharge of his duties; improper conduct; or that the officer had contravened the terms and conditions upon which he was employed. Division 6 of the Act provided for the manner in which he could be dismissed on account of misconduct. Until that process was completed the public servant had a legal right to perform his duties and earn his salary: Director General of Education v Suttling (1987) 162 CLR 427, 441.
The position is different under the 1999 Act. The new Act brought about a fundamental change to the structure of the public service. No longer does the public service consist of offices, filled by office holders; public servants are now “engage[d] .. as employees” by the relevant departmental head (in the legislation referred to as “Agency Head”): s 22(1). The terms and conditions of employment are determined by the Departmental Head, provided they are no less favourable than those found in awards, certified agreements or Australian Workplace Agreements: s 24. Section 29(1) provides that an Agency Head may terminate the employment of an APS employee (a defined expression) at any time. However in the case of an ongoing APS employee (by s 5 of the Public Employment (Consequential and Transitional) Amendment Act 1999 (Cth) the prosecutor was deemed to fall within this category of employee) the power of termination may only be exercised in the limited circumstances described in s 29(3). One is for a breach of the Code of Conduct which itself is set out in s 13. Others are that the employee lacks, or has lost, an essential qualification for performing his or her duties and an inability to perform duties due to physical or mental incapacity. No mechanism is provided for determining when there has been a breach of the Code of Conduct. The 1999 Act merely requires each Agency Head to establish procedures for determining whether an employee has breached the Code: s 15(3). The procedures must, among other things, have due regard to procedural fairness: s 15(3)(a). The procedures may be different for different categories of public servants. It will be seen that a public servant’s position is now regulated in part by contract and in part by statute.
With this background in mind I can now consider the operation of s 170HB. First it should be noted that the “prior proceeding” to which reference is made must be for a remedy in respect of the “termination” of the employer’s employment. Second, that termination must be the same termination which is the subject of the claim in the s 170CE proceeding. Next, the prior proceeding must be a proceeding for a claim, or cause of action, in which the termination of employment is an element, if not an essential element. This construction is confirmed by the Supplementary Explanatory Memorandum which accompanied the Workplace Relations and Other Legislation Amendment Bill 1996. There the purpose of s 170HB was said to be the prevention of “dual applications (under Subdivision B and otherwise) in relation to a single termination of employment”.
To determine whether the judicial review proceeding is a prior proceeding for the purposes of s 170CH, it is necessary to characterise the nature of that proceeding. Having regard to the grounds upon which review was sought, it is clear that the prosecutor claimed that jurisdictional error had affected the investigating officer’s decision. In substance this was a claim that the prosecutor had not in fact been dismissed from the service. At one point the prosecutor would have contended that his dismissal was “void”. That is how the House of Lords described the purported dismissal of a Crown servant or holder of public office in Ridge v Baldwin [1964] AC 40 and in Malloch v Aberdeen Corporation [1971] 1 WLR 1578. There has, however, been a longstanding debate as regards whether an administrative decision affected by jurisdictional error can correctly be described as “void”: HWR Wade, “Unlawful Administrative Action: Void or Voidable” (1967) 83 LQR 499 and (1968) 84 LQR 95. Some judges prefer to describe such a decision as being “invalid”: Craig v The State of South Australia (1995) 184 CLR 163, 179; Regina v Wicks [1998] AC 92, 108. Even this terminology has been criticised. Now the preferred view seems to be to refer to an administrative decision affected by jurisdictional error as one which has “no legal effect” (as in Boddington v British Transport Police [1992] 2 AC 143, 158, 165) or even “no decision at all”: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 615, 647.
However one describes the impugned decision, the prosecutor’s judicial review proceeding was not a proceeding seeking a remedy founded on the termination of his office. To the contrary, the prosecutor’s allegation (of course in more formal legal language) was that his employment as a public servant had not been terminated. The only effect of the remedy which he sought, if the remedy were granted, would be to establish that his deemed contract of employment with his Agency Head continued in force. This is the direct opposite of a claim for “a remedy in respect of [the] termination” of the employee’s employment. In Miller v University of New South Wales (2002) 115 IR 404, Branson J tentatively was of a like view in the case of a claim for a declaration of wrongful dismissal; the Full Court (Miller v University of New South Wales (2003) 2000 ALR 565) was not required to deal with this point.
There is, in my mind, no doubt that s 170HB does not bar the prosecutor’s claim under s 170CE. It follows that in my view the decision of the Full Bench was in error, its decision should be removed into this Court and quashed and a writ of mandamus should issue to compel it to determine the prosecutor’s claim in accordance with its merits.
Finally, since preparing these reasons I have read in draft the reasons for judgment of Madgwick J. I am in substantial agreement in those reasons as an alternative basis for reaching the conclusion that the Full Bench wrongfully acceded to the respondent’s argument.
I certify that the preceding twenty- three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.
Associate:
Dated: 24 November 2004
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 96 of 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
IN THE MATTER OF AN APPLICATION FOR A WRIT OF MANDAMUS AND A WRIT OF CERTIORARI
BETWEEN:
JEFFREY RAYMOND KEITH STANNARD
Prosecutor/ApplicantAND:
THE HONOURABLE VICE PRESIDENT MCINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT HARRISON AND COMMISSIONER LAWSON, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First RespondentCOMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGES:
MADGWICK, FINKELSTEIN & DOWSETT JJ
DATE:
25 NOVEMBER 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
DOWSETT J:
THE PRESENT PROCEEDINGS
As Finkelstein J has sufficiently outlined the facts of this matter, it is not necessary that I do so. The prosecutor (“Mr Stannard”) seeks writs of certiorari and mandamus directed to the Full Bench of the Australian Industrial Relations Commission (the “Commission”). The proceedings in the Commission arose out of Mr Stannard’s dismissal from the Australian Public Service on 18 February 2000. On 1 November 2000, he applied to the Commission for relief pursuant to s 170CE of the Workplace Relations Act 1996 (Cth) (the “Act”), alleging that his termination was ‘harsh, unjust or unreasonable’. The application was filed more than 21 days after the termination took effect, and so it was necessary, pursuant to subs 170CE(8) that Mr Stannard obtain an order extending the time in which he might make his application. A Commissioner made such an order. The Full Bench set aside that order. It considered that Mr Stannard’s substantive application was barred by subs 170HB(1) of the Act. In those circumstances, no good purpose could be served by extending time. Subsection 170HB(1) bars applications under subs 170CE(1) where the applicant has previously sought a remedy in respect of the same termination.
PRIOR PROCEEDINGS IN THIS COURT
Mr Stannard had previously applied to this Court (the “prior proceedings”) for a review of the decision to terminate his employment (the “termination decision”) pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”). The termination decision was made pursuant to s 82AH of the Public Services Act 1922 (Cth) (the “Public Service Act”). It has not been disputed that judicial review was available in connection with it. Mr Stannard sought an order quashing the termination decision and a declaration that he remained an officer of the public service. His grounds were:
·breach of the rules of natural justice;
·improper use of a power;
·that the decision-maker had taken into account irrelevant considerations;
·that the decision-maker had failed to take into account relevant considerations; and
·that the decision-maker had exercised his power in a way which was unreasonable.
Mr Stannard also alleged that the termination decision involved an error of law, although no error was identified other than those set out above, all of which were expressly raised. He also submitted that the termination decision was inappropriate and that other steps might have been taken in lieu thereof. On 24 October 2000 I dismissed the application on the ground that Mr Stannard had not demonstrated any basis for reviewing the termination decision.
PROCEEDINGS IN THE COMMISSION
Subsection 170CE(1) of the Act provides:
‘Subject to subsection (5), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:
(a)on the ground that the termination was harsh, unjust or unreasonable; or
(b)on the ground of an alleged contravention of section 170CK, 170CL, 170CM or 170CN; or
(c)on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a).’
Section 170CK prohibits an employer from terminating employment for certain identified reasons. Section 170CL prohibits termination for reasons which might be collectively described as “redundancy”, unless certain procedural steps have been taken. Section 170CM prohibits termination without appropriate notice and payment of entitlements. Section 170CN prohibits termination where an order under s 170FA is in force. That section relates to orders made ‘… for the purpose of giving effect to the requirements of Article 12 … or 13 of the Termination of Employment Convention …’. I will return to the Convention at a later stage.
Section 170CD(1) provides that in Division 3 of Par VIA of the Act (“Division 3”), “termination or termination of employment” means ‘termination of employment at the initiative of the employer’. All presently relevant provisions are in that division. Section 170CD(2) provides that:
‘An expression used in Subdivision C, D or E of this Division has the same meaning as in the Termination of Employment Convention.’
The expression “Termination of Employment Convention” is defined in s 4 of the Act to mean:
‘… the Termination of Employment Convention, 1982, a copy of the English text of which is set out in Schedule 10.’
The Convention was adopted by the General Conference of the International Labour Organisation at Geneva on 2 June 1982.
Section 170CA of the Act asserts that a principal object of Division 3 is to establish procedures for conciliation, arbitration and court resolution in connection with disputes concerning termination or proposed termination of employment. Another object is:
‘(e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivisions D and E, to assist in giving effect to the Termination of Employment Convention.’
Subdivision B of Division 3, in which s 170CE is found, applies to employees who are Commonwealth public sector employees (see s 170CB). There is no dispute that it applies to Mr Stannard’s termination. Sections 170CK, 170CL, 170CM and 170CN (all referred to in s 170CB(2)) are in Subdivision C of Division 3. Subdivisions D and E contain provisions relating to orders made by the Commission.
Section 170HB provides:
‘(1) An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the prior proceedings) for a remedy in respect of that termination have been commenced by or on behalf of that employee:
(a) under another provision of this Act; or
(b) under another law of the Commonwealth; or
(c) under a law of a State or Territory;
alleging that the termination was;
(d) harsh, unjust or unreasonable (however described); or
(e) unlawful;
for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.(2) Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:
(a) have been discontinued by the party who began the proceedings; or
(b) have failed for want of jurisdiction.(3) For the avoidance of doubt, a proceeding under this Act or any other law of the Commonwealth or under a law of a State or Territory seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation:
(a) to give adequate notice of the termination; or
(b) to provide a severance payment as a result of the termination; or
(c) to provide any other entitlement payable as a result of the termination;
is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination.(4) If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application:
(a) is discontinued by the applicant; or
(b) fails for want of jurisdiction.’The Full Bench concluded that the prior proceedings were for a remedy in respect of the termination of Mr Stannard’s employment and that subs 170HB(1) barred any application pursuant to s 170CE(1).
GROUNDS ADVANCED IN THE PRESENT PROCEEDINGS
In his written submissions before us Mr Stannard canvassed in some detail the rights and wrongs of the decision to dismiss him from the Public Service. However the bar imposed by subs 170HB(1) is absolute. There is no discretion to relieve from its consequences. The merits of his case pursuant to s 170CE are therefore irrelevant for present purposes. Similarly, it is irrelevant that, as he alleges, his present dilemma is attributable to incorrect or incomplete legal advice.
Mr Stannard presently submits, concerning the operation of s 170HB(1) in his case:
·that the prior proceedings were either discontinued or failed for want of jurisdiction;
·that he had not, in those proceedings, alleged that the termination was unlawful;
·that in the proceedings in the Commission he sought to address the merits of the matter whereas in the prior proceedings, he had sought to address a different issue not involving consideration of the merits;
·that his termination was invalid and had no legal effect;
·that s 170HB(1) does not bar an application pursuant to s 170CE where the remedy sought in the relevant prior proceedings was based upon the alleged invalidity of the termination.
The last three grounds are closely linked.
“TERMINATION OF EMPLOYMENT”
Having regard to the way in which this case was argued, it is necessary to determine whether or not the term includes only a lawful termination or also includes a purported termination which may, for some reason, be invalid, void or unlawful. In my view it is relatively clear that the wider meaning was intended. The only suggestion to the contrary appears in subs 170CE(7) which provides that any relevant application must be lodged ‘… within 21 days after the day on which the termination took effect’. It might be argued that a termination which was, in effect, no termination, could never take effect and so time would not run, suggesting that it was not a “termination of employment” for present purposes. However there are two reasons for concluding otherwise.
Firstly, subs 170CE(1) itself contemplates the possibility that in respect of the same termination, an application for relief might be made upon the ground that it was ‘harsh, unjust or unreasonable’ and/or ‘on the ground of an alleged contravention’ of various identified sections. Such an alleged contravention would, at least arguably, lead to the conclusion that the termination was void, depending upon the proper construction of the relevant provisions. See, for example, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [92] – [93]. Parliament clearly intended that relief be available in the Commission where a termination contravenes ss 170CK, 170CL, 170CM or 170CN. In other words, such an unlawful dismissal is a ‘termination of … employment’ for the purposes of s 170CE(1). Other provisions in Division 3 use that expression and cognate expressions, apparently with similarly broad meanings. There is no reason why a termination which is unlawful for some reason other than those prescribed in Division 3 (such as the provisions of another statute) should be treated as outside the definition.
Secondly, the meaning attributed to the terms “termination” and “termination of employment” in subs 170CD(1) applies throughout Division 3. That definition has been borrowed from article 3 of the Convention. Subsection 170CD(2) of the Act provides:
‘An expression used in Subdivision C, D or E of this Division has the same meaning as in the Termination of Employment Convention.’
The Convention appears at Schedule 10 to the Act. Article 10 provides:
‘If the bodies referred to in Article 8 of this Convention [domestic courts and tribunals] find that termination is unjustified and if they are not empowered or do not find it practicable, in accordance with national law and practice, to declare the termination invalid and/or order or propose reinstatement of the worker, they shall be empowered to order payment of adequate compensation or such other relief as may be deemed appropriate.’
Thus the Convention itself treats invalid terminations as being within the expressions “termination” and “termination of employment”. The distinction drawn in article 10 between declaring a termination to be invalid and ordering re-instatement demonstrates that the relevant invalidity includes the situation in which the termination is of no legal effect. Although Convention definitions are not expressly applied to Subdivision B of Division 3, it is reasonable to infer that the definition of “termination of employment”’ in subs 170CD(1) (which applies to the whole of Division 3) was intended to reflect the Convention meaning of that expression. Mr Stannard did not submit otherwise. I conclude that a purported, but invalid, termination is a termination of employment for the purposes of Division 3, including ss 170CE and 170HB.
SUBSECTION 170HB(1)
Subsection 170HB(1) bars proceedings pursuant to subs 170CE(1) in relation to a termination of employment where:
·prior proceedings for a remedy in respect of that termination have been commenced by, or on behalf of the employee under another law of the Commonwealth alleging that:
·the termination was ‘harsh, unjust or unreasonable (however described)’; or
·the termination was unlawful,
for a reason other than a failure by the employer to provide a termination benefit to which the employee was entitled.
However subs 170HB(1) will not bar such an application if the prior proceedings:
·were discontinued by the employee; or
·failed for want of jurisdiction.
Concerning these various matters, I observe as follows:
·The prior proceedings were under other laws of the Commonwealth, namely the Public Service Act and the ADJR Act.
·There has been no suggestion that Mr Stannard’s employer failed to provide a termination benefit.
·It is probably arguable that in the prior proceedings, Mr Stannard alleged that his dismissal was ‘harsh unjust or unreasonable (however described)’. However it is not necessary to examine that question further because, in my view, he clearly alleged that the decision was unlawful. That he sought an order quashing it and a declaration that he was an officer of the Public Service ‘… on and from 27 July 1998 …’ indicates as much.
·In the course of my reasons in the prior proceedings, I observed that Mr Stannard had not pursued the ‘third ground’ in his application which was that ‘[t]he decision involved an error of law’. He now argues that this meant that he had abandoned that ground and/or had not raised such a ground. However his other grounds also constituted an allegation that the termination decision was unlawful, and those grounds were prosecuted to judgment.
·It also cannot be argued that the prior proceedings failed for want of jurisdiction. Although Mr Stannard failed to establish any basis for review of the decision, he was entitled to commence proceedings for judicial review in this Court, and in his application, he advanced arguable grounds. He failed because he could not establish them, not because of any question of jurisdiction.
·In Mr Stannard’s proposed proceedings in the Commission, he clearly alleged that his termination was harsh, unjust or unreasonable.
The only question remaining for consideration is whether or not the prior proceedings were ‘… for a remedy in respect of that termination …’. Subsection 170CE(1) creates a new right to relief for a termination which is ‘harsh unjust or unreasonable’, regardless of whether it is unlawful. However an unlawful dismissal would usually be ‘harsh, unjust or unreasonable’. Section 170CE also creates the procedure for enforcing such right. The explanatory memorandum accompanying the 1996 amendment to the Act demonstrates that in enacting s 170HB, Parliament intended, where relief was available pursuant to s 170CE, to prohibit multiple proceedings in connection with the same termination. That prohibition applies where there have been prior proceedings ‘… for a remedy in respect of [the same] termination …’. If it matters, I can see nothing harsh or unjust in Parliament’s offering the benefit of relief pursuant to s 170CE upon the basis that no other remedies have been, or will be sought in connection with the same termination.
The phrase “in respect of” generally has a wide meaning. See Workers’ Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642 at 646-7 (per Wilson and Gaudron JJ) and at 653-4 (per Deane, Dawson and Toohey JJ). However, as appears from the latter passage, it ‘… gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends’. In the present case, the phrase connects the words “remedy” and “termination”. It has not been suggested that the relief sought in the prior proceedings did not constitute a “remedy”. The “termination” is, of course the termination of Mr Stannard’s employment. In the prior proceedings Mr Stannard sought remedies which would have established and recognized that the termination of his employment was invalid. Given that an invalid or unlawful termination is nonetheless a “termination” or “termination of employment” for the purposes of Division 3, it follows that relief which establishes any such invalidity or unlawfulness for the purpose of identifying the relevant employee’s ongoing status is ‘… a remedy in respect of that termination …’. I see no justification for the proposition that relevant prior proceedings for the purposes of subs 170HB(1) must have involved a claim or cause of action of which the termination of employment was an element. Once it is accepted that the terms “termination” and “termination of employment” include an invalid termination, such an approach attributes an unjustifiably narrow meaning to the words “in respect of”.
One other argument occurs to me. It might be submitted that it is necessary to divorce the decision to terminate employment from the actual cessation of employment. It might then be argued that in the present case, the prior proceedings concerned the decision to terminate, whereas the proposed proceedings pursuant to s 170CE(1) concerned the cessation of employment. The Act offers little or no justification for such an artificial distinction. Indeed, s 170CE seems to focus upon the employer’s decision to “initiate” the termination and the reasons for that decision, together with other factors personal to the employee. In any event, no such argument was advanced before us.
ORDERS
In my view the application should be dismissed with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 24 November 2004
Counsel for the Prosecutor/Applicant:
The Prosecutor/Applicant appeared in person.
Counsel for the First Respondent:
No Appearance for the First Respondent.
Counsel for the Second Respondent:
Mr J A Logan SC
Solicitor for the Second Respondent:
Australian Government Solicitor
Date of Hearing:
16 August 2004
Date of Judgment:
25 November 2004
0
18
0