Watkinson v Commonwealth of Australia - [1997] IRCA 84

DECISION NO:84/97

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether employment under Member of Parliament (Staff) Act 1984 Part 111 or Part IV - oral variation of employment contract - whether applicant dismissed for pregnancy - identity of respondent - claim of unlawful termination - compensation - whether reinstatement impracticable

Workplace Relations Act 1996 (C’th)(formerly Industrial Relations Act 1988)
ss 170DC, 170 DE, 170DF, 170 EA, 170 EE
Member of Parliament (Staff) Act 1884

Chapman v Commissioner of Police (1983) 50 ACTR 23; (1983) 50 ALR 23

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

Nettlefold v Kym Smoker Pty Ltd (unreported), IRCA, Lee J, 4 October 1996
Nicolson v Heaven & Earth Galleries (1994) 1 IRCR 199
James Patterson & Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Newcrest Mining Ltd, (unreported) IRCA, WI595R of 1994, Marshall J, 21 December 1995
Liddell v Lembke (t/as Cheryl’s Unisex Salon) (1994) 127 ALR 342
Colleen Mary Coll and Australian Services Union v Shire of Yarra Ranges, (Unreported) IRCA VI 4112R of 1995, Marshall J, 24 February 1997

WATKINSON -v- COMMONWEALTH OF AUSTRALIA
NI 1732 of 1996

Before:  TOMLINSON JR
Place:  SYDNEY
Date of Hearing:       18 & 19 NOVEMBER & 19 & 20 DECEMBER 1996
Date of Judgment:     21 MARCH 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 1732 of 1996

BETWEEN:

Cheryl Maree WATKINSON
Applicant

AND

COMMONWEALTH OF AUSTRALIA
Respondent

BEFORE:     TOMLINSON JR
PLACE:        SYDNEY
DATE:           21 MARCH 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

Respondent to reinstate the applicant to the position of Electorate Officer Grade B. within one month.
Subject to the payment of income tax, the respondent is to pay to the applicant compensation equal to the amount she would have received had the termination not occurred.
Leave to restore the matter at short notice.

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

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 1732 of 1996

BETWEEN:

Cheryl Maree WATKINSON
Applicant

AND

COMMONWEALTH OF AUSTRALIA
Respondent

BEFORE:     TOMLINSON JR
PLACE:        SYDNEY
DATE:           21 MARCH 1997

REASONS FOR DECISION

This is an application for reinstatement under the Industrial Relations Act 1988
now the Workplace Relations Act 1996 (“the Act”) arising allegedly out of an unlawful termination. Mr Tracey Q.C. on behalf of the respondent questioned the standing of Mr Paul Matters to represent the applicant, Mr Matters being excluded by s 469 (7) of the Act. Shortly after commencement of the hearing Mr Matters advised that in order to resolve the difficulty the applicant had become a member of the Australian Workers Union. No issue was taken with that action.

In her evidence in chief Ms Cheryl Watkinson stated that on 25 May 1987 she commenced employment in a secretarial capacity in the office of Mr Stephen Martin, her local member of parliament It was not disputed that the applicant…

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

Case: [1997] IRCA 84
Decision Date: 21 March 1997

CaseChat Overview and Summary

The matter before the court involved an applicant, Watkinson, against the Commonwealth of Australia, regarding the termination of her employment. Watkinson claimed that she was dismissed due to her pregnancy, which she argued was unlawful under the relevant industrial laws. The dispute centred on whether her employment was governed by Part III or Part IV of the Member of Parliament (Staff) Act 1984, and if the terms of her employment were altered by an oral agreement. The applicant sought compensation for the alleged unlawful termination and requested reinstatement, although she acknowledged that this might not be practical.

The primary legal issues were whether the applicant's employment was subject to Part III or Part IV of the Act and if an oral agreement could modify the written contract. Additionally, the court needed to determine if Watkinson was dismissed because of her pregnancy, and if so, whether this constituted an unlawful termination under the law. Another issue was the quantum of compensation if the termination was found to be unlawful, and the feasibility of reinstatement as a remedy.

The court examined the relevant sections of the Member of Parliament (Staff) Act 1984 and the evidence provided by both parties. It concluded that the applicant's employment was governed by Part III of the Act, not Part IV, and that an oral agreement could indeed alter the terms of the employment contract. The court found that Watkinson was dismissed due to her pregnancy, which was a discriminatory reason. Consequently, the termination was deemed unlawful. Regarding the remedy, the court found reinstatement to be impractical and awarded compensation to the applicant for the unlawful termination.

The court ordered the Commonwealth to pay Watkinson compensation for the unlawful termination of her employment. The exact amount was to be determined based on the evidence presented. The court did not order reinstatement due to its impracticality but stressed the importance of compensation as a remedy for unlawful termination.

Orders