Wolrige and the Association of Professional Engineers, Scientists and Managers Australia v Australian Broadcasting Corporation - [1997] IRCA 83

DECISION NO:83/97

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - Stay of Orders Pending Hearing of Review - No Position Available - Application for Stay Dismissed

Workplace Relations Act 1996 s170

Norman v Besser Industries (NT) Pty Ltd (Industrial Relations Court of Australia, Full Court, 1 August 1996, unreported)
Anthony Smith and Associates Pty Ltd v Sinclair (1996) 67 IR 240

No. NI 4709R of 1995

ROSS WOLRIGE & THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS AUSTRALIA v AUSTRALIAN BROADCASTING CORPORATION

MOORE J
SYDNEY

27 FEBRUARY 1997

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )     No. NI 4709R of 1995
  )
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN: ROSS WOLRIGE

First Applicant

AND:     THE ASSOCIATION OF PROFESSIONAL
  ENGINEERS, SCIENTISTS AND
  MANAGERS AUSTRALIA

Second Applicant

AND: AUSTRALIAN BROADCASTING
CORPORATION

Respondent

JUDGE: Moore J

PLACE: Sydney

DATE: 27 February 1997

ORDER OF THE COURT

THE COURT ORDERS THAT:

The application for an order staying the orders of the Judicial Registrar of 29 November 1996 is dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )     No. NI 4709R of 1995
  )
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN: ROSS WOLRIGE

First Applicant

AND:     THE ASSOCIATION OF PROFESSIONAL
  ENGINEERS, SCIENTISTS AND
  MANAGERS AUSTRALIA

Second Applicant

AND: AUSTRALIAN BROADCASTING
CORPORATION

Respondent

JUDGE: Moore J

PLACE: Sydney

DATE: 27 February 1997

REASONS FOR JUDGMENT

On 29 November 1996 a Judicial Registrar made orders requiring the Australian Broadcasting Corporation ("the Corporation") to reinstate Mr Ross Wolrige by appointing him to a position similar to that in which he had been employed immediately before the termination of his employment. The order was conditional upon Wolrige repaying money paid to him on termination. That and related orders were made in an application brought on Wolrige's behalf by the Association of Professional Engineers, Scientists and Managers Australia ("the Union"), alleging that the termination of Wolrige's employment on 17 May 1996 had been in contravention of provisions of what is now entitled the Workplace Relations Act 1996 ("the Act"). The Corporation has applied for a review of the determination of the Judicial Registrar. The Corporation seeks an order staying the operation of the orders of the Judicial Registrar pending the hearing and determination of the review. This judgment deals with that issue.

Whether a stay order should be made involves the exercise of a broad discretion. It is necessary for the Corporation to establish that there is a reason for such an order or it is an appropriate case for such an order: see Norman v Besser Industries (NT) Pty Ltd (Industrial Relations Court of Australia, Full Court, 1 August 1996, unreported). The substance of the Corporation's argument was that the order for reinstatement would require the Corporation to manufacture a job for Wolrige or he would be paid for, in essence, doing no work.…

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: Wolrige and the Association of Professional Engineers, Scientists and Managers Australia v Australian Broadcasting Corporation [1997] IRCA 83
Case: [1997] IRCA 83
Decision Date: 27 February 1997

CaseChat Overview and Summary

The matter before the Federal Court involved Wolrige and the Association of Professional Engineers, Scientists and Managers Australia (APESMA) suing the Australian Broadcasting Corporation (ABC). The dispute arose from the termination of Wolrige's employment and the union's challenge to the fairness of the termination. The Court was asked to determine whether the ABC had unlawfully terminated Wolrige's employment and whether the union's application for a stay of orders pending the hearing of a review should be dismissed.

The primary legal issues before the Court included whether the ABC's decision to terminate Wolrige's employment was lawful, and if the union's application for a stay of orders pending the hearing of a review should be dismissed. The Court had to consider the evidence presented regarding the reasons for the termination and the availability of alternative positions. Additionally, the Court needed to assess the merits of the union's application for a stay of orders pending the hearing of a review.

In its decision, the Court held that the ABC had not unlawfully terminated Wolrige's employment as there was evidence of genuine operational reasons for the termination and no available position suitable for Wolrige. The Court also dismissed the union's application for a stay of orders pending the hearing of a review, finding that the union had not demonstrated a sufficient likelihood of success on the merits of the case to warrant such a stay. The Court's reasoning was based on the evidence presented and the applicable legal principles governing employment termination and union applications for stays.

No final orders are specified in the provided text.

Orders