Wan v Australian Industrial Relations Commission [2001] FCA 1803
INDUSTRIAL - termination of employment - application to Australian Industrial Relations Commission for relief - application dismissed by Commissioner - application for leave to appeal refused by a Full Bench of the Commission - approach taken by Full Bench - considerations relevant to grant of leave to appeal
ADMINISTRATIVE LAW - prerogative writs - application for writs of mandamus, certiorari and prohibition
ALICE WAN v AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND AUSTRALIAN BROADCASTING CORPORATION Q 37 OF 2001
SPENDER, KIEFEL, DOWSETT JJ BRISBANE 17 DECEMBER 2001
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 37 OF 2001
BETWEEN:
ALICE WAN APPLICANT
AND:
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FIRST RESPONDENT
AUSTRALIAN BROADCASTING CORPORATION SECOND RESPONDENT
JUDGES:
SPENDER, KIEFEL, DOWSETT JJ
DATE OF ORDER:
17 DECEMBER 2001
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant pay the second respondent’s costs of the proceedings.
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 37 OF 2001
BETWEEN:
ALICE WAN APPLICANT
AND:
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FIRST RESPONDENT
AUSTRALIAN BROADCASTING CORPORATION SECOND RESPONDENT
JUDGES:
SPENDER, KIEFEL, DOWSETT JJ
DATE:
17 DECEMBER 2001
PLACE:
BRISBANE
REASONS FOR JUDGMENT
THE COURT:
On 11 September 1998 the applicant’s employment with the second respondent was terminated on the grounds of redundancy. The applicant applied to the Australian Industrial Relations Commission for relief pursuant to s 170CE of the Workplace Relations Act 1996 (“the Act”) on the ground that the termination was “harsh, unjust or unreasonable”. The matter was determined by arbitration following an election made pursuant to s 170CFA(1). On 9 December 1999 Senior Deputy President Harrison dismissed the application. On 2 June 2000 a Full Bench of the Commission refused an application for leave to appeal. The applicant then sought orders for writs of mandamus, certiorari and prohibition directed to the Full Bench from the High Court of Australia. The proceedings were remitted to this Court by consent of the parties. The Commission members against whom the orders are sought include the President. Section 415(1) of the Act requires that the matter be determined by a Full Court of this Court.
The essential submission made on behalf of the applicant is that the Full Bench was itself required to address the question posed by the Act (s 170CG(3)(a)) as to whether there was a valid reason for the termination of the applicant’s…
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
Wan v AIRC [2001] FCA 1803
Case
[2001] FCA 1803
Decision Date
CaseChat Overview and Summary
The applicant, Ms Wan, appealed against a decision of the Australian Industrial Relations Commission (AIRC) regarding the termination of her employment. Ms Wan argued that the Full Bench of the AIRC was required to consider whether there was a valid reason for the termination of her employment, rather than just whether the findings of fact and conclusions reached by the Senior Deputy President were open on the evidence. The legal issue before the court was whether the Full Bench was required to conduct its own assessment of the validity of the reason for the termination, or whether it was sufficient to consider whether the findings of the Senior Deputy President were open on the evidence. The court found that the Full Bench was not required to conduct its own assessment of the validity of the reason for the termination, and that it was sufficient for it to consider whether the findings of the Senior Deputy President were open on the evidence. The court noted that the AIRC was required to have regard to certain matters in determining whether a termination was harsh, unjust or unreasonable, including whether there was a valid reason for the termination. However, the court found that the Full Bench was not required to conduct its own assessment of the validity of the reason for the termination, and that it was sufficient for it to consider whether the findings of the Senior Deputy President were open on the evidence. The court further found that the Full Bench had properly considered the evidence and had reached a conclusion that was open on the evidence. The applicant’s appeal was dismissed, and she was ordered to pay the costs of the second respondent.
Orders
Orders of the court
1. The application is dismissed.
2. The applicant pay the second respondent’s costs of the proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
SPENDER, KIEFEL, DOWSETT JJ
The essential submission made on behalf of the applicant is that the Full Bench was itself required to address the question posed by the Act (s 170CG(3)(a)) as to whether there was a valid reason for the termination of the applicant’s employment. It was not sufficient, it is submitted, for it to consider only whether the findings of fact and conclusions reached by the Senior Deputy President were open on the evidence. THE DECISION OF THE SENIOR DEPUTY PRESIDENT Section 170CG(3) of the Act requires: In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to: (a)whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer’s undertaking, establishment or service; and(b)whether the employee was notified of that reason; and (c)whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d)if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and (e)any other matters that the Commission considers relevant.” The focus of the applicant’s submissions is upon on the enquiry in (a). The applicant’s case was that she had been employed as a systems accountant in a team within the second respondent which dealt with financial management information systems. The applicant’s case referred to a decision having been made to install a new system and relocate the systems administration staff. As a result all members of the team became potentially excess to requirements. This occurred in 1997. The applicant applied for various positions from about late 1997. She wished to remain working within the organisation of the second respondent. She was unsuccessful in obtaining the position of Information Technology Co-ordinator and was unhappy with the assessment report on her application. At the same meeting, in April 1998, where her application was discussed, her status as an employee was also discussed. It was agreed that she resubmit her application for the position, which she did. In the meantime she received a letter dated 23 April 1998 advising of her status as “potentially excess” and that she had four weeks to consider whether to elect immediate redundancy or take a redeployment and redundancy option. The applicant was given an extension of time within which to elect and she chose redeployment. Redeployment was to occur over a sixteen week period. On 15 May 1998 the applicant was told that she had been unsuccessful in her second application for the abovementioned position. The applicant sent a number of memos or emails regarding the provision to her of assistance or training. Her communication with some of those people, including a Mr Clancy, who was the Human Resources Manager for New South Wales, appeared to upset her and she became frustrated with the progress she was making in the preparation of a re-deployment and redundancy action plan. Mr Clancy explained to her the level of priority that her training had, and she attended one course. The applicant was unsuccessful in other positions for which she applied.