THE HONOURABLE PRESIDENT JUSTICE GIUDICE & ORS RESPONDENTS
Visscher v The Honourable President Justice Giudice [2009] HCA 34 2 September 2009 S30/2008
ORDER
1.Special leave to appeal granted.
2.Appeal treated as instituted, heard instanter and allowed.
3.Set aside the orders of the Full Court of the Federal Court made on 21 December 2007 and in lieu thereof order that:
a)a writ of certiorari issue to the Australian Industrial Relations Commission quashing:
i) the decision of the Full Bench of the Australian Industrial Relations Commission dated 9 October 2006 in matter C2006/132; and
ii) the decision of Commissioner Redmond of the Australian Industrial Relations Commission dated 5 May 2006 in matter U2004/2387; and
b)a writ of mandamus issue to the Australian Industrial Relations Commission, directing it to hear and determine matter U2004/2387 in accordance with law.
On appeal from the Federal Court of Australia
Representation
J T Gleeson SC with N J Owens for the applicant (instructed by Yeldham Price O'Brien Lusk Lawyers)
G J Hatcher SC with B K B Cross for the second respondent (instructed by Deacons Lawyers)
Submitting appearance for the first respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Timothy Visscher v The Honourable President Justice Giudice
Industrial law – Contract of employment – Where employee promoted to Chief Officer but promotion later sought to be rescinded by employer – Where employee continued to perform duties and receive salary equivalent to that of Chief Officer – Whether rescission of promotion effective to terminate contract of employment.
Contract – Contract of employment – Repudiation – Where employer repudiated contract of employment – Whether acceptance of repudiation by employee necessary to terminate contract of employment – Relevance of distinction between contract of employment and employment relationship – Whether employee estopped from denying that repudiation effective to terminate contract of employment.
Industrial law – Certified Agreement – Where annexure to Certified Agreement listed gradings of employees – Whether grading listed in Certified Agreement conclusive as to employee's position.
Words and phrases – "at the initiative of the employer", "contract of employment", "employment relationship", "repudiation", "termination".
GUMMOW J. The appellant (Mr Visscher) is an experienced merchant naval officer. On 9 March 2004 he filed an application to the Australian Industrial Relations Commission ("the AIRC"). He sought reinstatement in response to what he maintained was the harsh, unjust or unreasonable termination of his employment by the second respondent, Teekay Shipping (Australia) Pty Limited ("the employer"). Following a hearing on 1‑2 March 2006, on 5 May 2006 the application was dismissed by Commissioner Redmond. After a hearing on 23 July 2006, an application for leave to appeal to the Full Bench was dismissed on 9 October 2006 by the President, Senior Deputy President Drake and Commissioner Bacon.
From this Court Mr Visscher now…
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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Details
AGLC
Visscher v Giudice [2009] HCA 34
Case
[2009] HCA 34
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Visscher concerning the termination of his employment with Teekay Shipping (Australia) Pty Limited. Mr Visscher had been offered and accepted a promotion to Chief Officer, but Teekay subsequently sought to rescind this promotion. Despite the rescission, Mr Visscher continued to perform the duties of a Chief Officer and receive the equivalent salary. The dispute ultimately centred on whether Mr Visscher's employment contract had been terminated, and if so, whether this termination was at the initiative of the employer, thereby attracting the jurisdiction of the Australian Industrial Relations Commission (AIRC) under the Workplace Relations Act 1996 (Cth).
The legal issues before the High Court included whether Teekay's actions in rescinding the promotion were effective to terminate Mr Visscher's contract of employment as a permanent Chief Officer. The Court was also required to consider the relevance of a Certified Agreement which listed Mr Visscher's grading as a position lower than Chief Officer, and whether this grading was conclusive as to his employment status. Furthermore, the Court had to determine whether the distinction between a contract of employment and the employment relationship, and the concept of repudiation, were relevant to the termination of the contract, and if Mr Visscher was estopped from denying the effectiveness of any repudiation.
The High Court found that the Full Court of the Federal Court and the AIRC had erred in their approach to the rescission of Mr Visscher's promotion. The Court held that the Certified Agreement, which came into force in May 2002, was determinative of Mr Visscher's position, and that despite performing the duties of a Chief Officer and receiving the associated salary, he was not permanently engaged in that role according to the agreement. The Court concluded that there was no termination of employment at the initiative of the employer, and that Mr Visscher's own assertion of a "constructive termination" due to a demotion was unjustified, as there had been no demotion in his current grade as defined by the Certified Agreement.
Consequently, the High Court allowed the appeal, set aside the orders of the Full Court of the Federal Court, and ordered that writs of certiorari and mandamus issue to the AIRC. These writs were directed at quashing the decisions of the AIRC and directing it to hear and determine Mr Visscher's matter in accordance with the law, specifically in light of the High Court's findings regarding the Certified Agreement and the absence of termination at the employer's initiative.
Orders
Orders of the court
1.Special leave to appeal granted.
2. Appeal treated as instituted, heard instanter and allowed.
3. Set aside the orders of the Full Court of the Federal Court made on 21 December 2007 and in lieu thereof order that:
a. A writ of certiorari issue to the Australian Industrial Relations Commission quashing:
i. The decision of the Full Bench of the Australian Industrial Relations Commission dated 9 October 2006 in matter C2006/132; and
ii. The decision of Commissioner Redmond of the Australian Industrial Relations Commission dated 5 May 2006 in matter U2004/2387; and
b. A writ of mandamus issue to the Australian Industrial Relations Commission, directing it to hear and determine matter U2004/2387 in accordance with law.
Background
Background to the litigation
The Full Court concluded that Mr Visscher was unable to establish the fact upon which his allegation of jurisdictional error on the part of the AIRC depended, namely that a contract whereby he was appointed a Chief Officer continued in existence in 2004[20]. Two grounds were given for that conclusion. It held that Teekay's actions in September 2001 were effective to "terminate Mr Visscher's employment as a permanent Chief Officer"[21]. This appears to have also been the view of the Full Bench of the AIRC[22] and was likely to have been influential in the decision reached by Commissioner Redmond. The second ground identified by the Full Court had regard to the terms of a Certified Agreement which came into force on 5 May 2002 ("the Certified Agreement")[23]. The Court held that Mr Visscher, as a Deck Officer who was a member of the Australian Maritime Officers Union ("the AMOU") and employed by Teekay, was bound by the terms of the Certified Agreement[24]. In the agreement he was listed as a Third Officer (or Third Mate), and subsequently as a Second Mate, but never as a Chief Officer. The Certified Agreement was taken to be conclusive as to his position[25]. That conclusion is not correct as a matter of construction of the Certified Agreement, for the reasons which follow. Further, the approach of the Full Court and the AIRC to the rescission of Mr Visscher's contract as a Chief Officer proceeded upon a wrong assumption of law.[20]Visscher v Australian Industrial Relations Commission (2007) 170 IR 419 at 423 [18] and 432 [59].[21]Visscher v Australian Industrial Relations Commission (2007) 170 IR 419 at 431 [54].[22]Visscher v Teekay Shipping (Australia) Pty Ltd (2006) 157 IR 7 at 13 [21].[23]The "Teekay Shipping Australia/Australian Maritime Officers Union (Deck Officers) Sea‑Going Officers Agreement 2001".[24]Visscher v Australian Industrial Relations Commission (2007) 170 IR 419 at 425 [32].[25]Visscher v Australian Industrial Relations Commission (2007) 170 IR 419 at 432 [58].The facts Mr Visscher commenced casual employment with Teekay in March 2000. In March 2001 he accepted an offer of permanent employment as a Third Mate. It was found by Commissioner Redmond that in August 2001 Mr Visscher was offered a promotion to the position of a Chief Mate, which he accepted on 7 September 2001. It does not appear to have been disputed that Mr Visscher satisfied the requirements of the Certified Agreement of 1998, then in force, for promotion to such a position. An industrial dispute arose between Teekay and the AMOU concerning, relevantly, the promotion. The AMOU demanded that Teekay hold open vacancies for permanent positions as Chief Officer in order to allow employees with longer service to obtain the necessary qualifications. The Commissioner who dealt with the dispute recommended, on 11 September 2001, that "promotions recently made" be rescinded. Teekay notified Mr Visscher on 20 September 2001 that it intended to comply with the recommendation and that his "recent promotion to permanent 1st Mate is unfortunately rescinded". Mr Visscher did not accept the rescission. The Full Bench of the AIRC observed that he "thereafter maintained that it was of no legal effect"[26]. However he remained in Teekay's employ, continuing to undertake the role and duties of a Chief Officer and receiving an amount equal to the salary of a Chief Officer, as earlier mentioned.[26]Visscher v Teekay Shipping (Australia) Pty Ltd (2006) 157 IR 7 at 8 [3].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GUMMOW J
HEYDON, CRENNAN, KIEFEL AND BELL JJ
Commissioner Redmond found that the actions of the employer had not repudiated the contract of employment, that there was no termination at the initiative of the employer and that Mr Visscher had brought his employment to an end on 22 February 2004 by his resignation. It followed that he had no right conferred by s 170CE(1) to apply to the AIRC and the application had to be dismissed for want of jurisdiction.Conclusions There was no termination of the employment of Mr Visscher at the initiative of the employer. It may be accepted that "termination" for the purpose of s 170CE(1) may include a "demotion in employment" which involves a significant reduction in the remuneration or duties of the demoted employee (s 170CD(1B)). However, from its commencement the 2001 Certified Agreement had specified the place of Mr Visscher in the Deck Officers Grading List at a rank lower than that of Chief Officer. Mr Visscher had been paid as a Second Mate with a higher duties allowance to Chief Officer and had performed those duties. But the employer correctly submits that, given the predominant operation which must be accorded to the 2001 Certified Agreement, whilst Mr Visscher was acting in the position of Chief Officer he was not permanently engaged as such. To construe the course of events by reference to no more than what in the absence of the Act would be the operation of the common law of contract would be to apply the remedial provisions of Pt VIA (in particular, of ss 170CE‑170CJ) without giving effect to the certified agreement provisions of Pt VIB. The relationship between the employer and Mr Visscher came to an end following his unjustified assertion by the 22 February 2004 email of "demotion from my position of Chief Officer" as constituting "constructive termination of our contract of employment". The employer properly denied that there had been any demotion in Mr Visscher's current grade, and Commissioner Redmond correctly concluded that the jurisdiction of the AIRC under s 170CE(1) had not been attracted.Orders Special leave to appeal should be granted but the appeal should be dismissed. Section 347 of the Act makes special provision respecting costs in a matter, including an appeal, "arising under" the Act, and the general provision in s 26 of the Judiciary Act 1903 (Cth) is to be read accordingly[12]. No order under s 347 is sought, and, in any event, this would not be a case for an order under that section.[12]Re McJannet; Ex parte Australian Workers' Union of Employees (Q) [No 2] (1997) 189 CLR 654; [1997] HCA 40. See also Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 476‑477 [25]‑[28]; 177 ALR 491 at 498‑499; [2000] HCA 67. In proceedings before the Australian Industrial Relations Commission ("the AIRC") the applicant, Mr Visscher, claimed that his employment with the second respondent, Teekay Shipping (Australia) Pty Limited ("Teekay") had been terminated and that the termination was harsh, unjust or unreasonable within the meaning of s 170CE(1)(a) of the Workplace Relations Act 1996 (Cth) ("the WRA")[13]. He sought reinstatement by appointment to the position in which he had been employed immediately before the alleged termination[14].[13]Which ceased to have effect as of 1 July 2009, see Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), s 2 and Sched 1. The relevant reprint of the Workplace Relations Act 1996 (Cth) is Reprint 6.[14]Pursuant to the Workplace Relations Act 1996, s 170CH(3).
Ratio Decidendi
Legal Principle Established
Established by:
GUMMOW J,
HEYDON, CRENNAN, KIEFEL AND BELL JJ