CATCHWORDS \ Industrial Law - whether power to order reimbursement of wages is conditional upon making of order for reinstatement - principles applicable to discretionary power to order reinstatement where employee was retrenched - whether employee must show that "old position or ... a similar position" still exists. Conciliation and Arbitration Act 1904 - s. 5(5) i DONALD SUTHERLAND and HILLS INDUSTRIES LIMITED No. 3 of 1982 CORAM : KEELY J. PLACE : ADELAIDE DATE : 22 SEPTEMBER, 1982 LUTTE Tener met mont memes ae om - re eee Wong ee eee NT I Ge So Sees oa a ete nt ttt or tae ome a All ee a LS dee et Nn ene Ns nee cee ee Me RY eee Mee man Me an Re + ae REVISED FROM ORAL JUDGMENT IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY No. 3 of 1982 oe ee ree ee INDUSTRIAL DIVISION tt a Re at main ht AY RE A mn manned Le mn OT SRM alati Sa St BETWEEN : DONALD SUTHERLAND Applicant AND : HILLS INDUSTRIES LIMITED Respondent 22 September, 1982 KEELY J. REASONS FOR JUDGMENT Mr. Sutherland seeks, under s. 5(5) of the Conciliation and Arbitration Act, an order that he be reimbursed wages lost by him and a direction by the court that he be reinstated in his 01d position or in a similar position. On 18 August, 1982 the respondent was convicted of an offence against s. 5(1) of the Act and the written reasons for judgment delivered by the court on that date in respect of the conviction are to be read with the rasons for judgment that I am now delivering orally. The court heard submissions on behalf of the respondent by both Mr. Bleby and Miss Harrison. It was submitted by Miss Harrison that the court has no power to order that Mr. Sutherland be reimbursed any wages lost by him unless the court has directed that he be reinstated in his a Tg eee remunte en nerreerr acer errr ent aye erent - a ee ee _— eget i kts Se a ne te alt mA 2 arlene bean Le Sor Be nails vie een Ral Ct ara sAeanda beats werent as Maa lsd rn en a NR Et ee te ee , wee ee ee oe ee ee oe me mentee ee eee cee ene Lj 2. old position or in a similar position. She contended that there must be a fixed time by which the "wages lost" could be quantified and that the court would not be able to determine what amount of wages had been lost by Mr. Sutherland unless the court knew the date from which he was to be reinstated in his employment. She referred to the manner in which s. 15(1)(e) of the South Australian Industrial Conciliation and Arbitration Act 1972 has been construed. However, as Mr. Johnston of Queen's Counsel, on behalf of Mr. Sutheriand, pointed out the wording of the South Australian Act is quite different and quite explicit: it refers to wages the employee "would have received had he been employed in that employment between the time of his dismissal and the time at which he was re-employed ...". No such words appear in s. 5(5) of the Commonwealth Act under which the present application is made. In my opinion s. 5(5) of the Commonwealth Act confers upon this court the power to order that an employee be reimbursed any wages lost by him and also confers upon the court the power to direct that an employee be reinstated. The sub-section appears to contemplate that the court may decide to make only one of the two orders sought or to make both orders depending upon the facts of the particular case. It is obviously quite possible that a dismissed ASCP LE HTT POR SOP Er ne ee en ee mere —_ ~~ oe - oo Bee se re ET t employee could be unemployed for some weeks following his dismissal and then obtain other employment before the court heard his application for wages lost and for reinstatement. In such a case the employee might well decide to remain in his new employment and accordingly not pursue his application for reinstatement. I am unable to see anything in s. 5(5) to Te ee eee nee ee suggest that an employee who withdrew his application for { reinstatement in such circumstances would thereby forfeit his right to apply for wages lost. Similarly the court might } refuse to direct the reinstatement of a dismissed employee j who had suffered a serious incapacity as a result of a stroke shortly before the hearing of the application for reinstatement. I do not consider that the statute intends that, as a indirect result of the misfortune of suffering such a stroke, the employee should be unable to seek an order for wages lost before the stroke occurred. Accordingly I am unable to uphold Miss Harrison's submission. mob hte et ha It was common ground that the court's power to order the reinstatement of an employee is a discretionary power. Mr. Bleby conceded that the discretion will generally be exercised in favour of the employee unless good reason is shown why reinstatement should not be ordered. (see Bowling v General Motors Holdens Limited [f1980] 33 A.L.R. 297 at pp. 304-5) However, he submitted that there oe ch SER a PTS mete ae alee TET NT I A A A LON RO Te Soleninadbeataaten! toe Meremermeere + oe semecrerymepey p mr mm ewe INEM estar, = ee A ee at reas 2. Stents pene eee Renee teat ale meta ece 4 "st eeu "A a en rel ee ee tee oo 4. were good reasons why the discretion should not be exercised in Mr. Sutherland's favour in this case. In support of that submission he advanced three reasons. First, he said that "the company was in a situation of labour reduction, for economic reasons, at the time of the dismissal ... not only occurring at Woodlands Terrace but also across the opelation of the company". He submitted that A the present case constituted "a unique situation under s. 5 where the occasion for the dismissal ... is not brought about by any factors pertinent to the particular employee or his performance". The case may or may not be "unique" but I do not regard that aspect as relevant to the exercise of the court's discretion in accordance with the principles enunciated by the Full Court in Bowling's case (supra). Mr. Bleby pointed out that it had not been found by the court that Mr. Sutherland's "union activity" was the only reason for dismissal and submitted that, before the court could order reinstatement, it "must be satisfied that dismissal would not have occurred (in any event) for perfectly proper and legitimate reasons". He contended that the court should not direct reinstatement unless it was satisfied that "without the union membership reason he would not \have been dismissed". He made it clear that his submission was that the court should not direct reinstatement unless it is affirmatively satisfied that Mr. Sutherland SPORE EER TOT Re age eee Sep te tes te ee TT era Salaaeeetaee? dea ee ek me lt ee A ek a eee ce ee ee eh nt a nee rma mr i tae em . , r 5. would not have been dismissed but for his "union activity" and said that the onus is on the applicant to satisfy the court that he would not have been dismissed had it not been for his "union activity". I reject those submissions as being contrary to the principles enunciated in Bowling's case (supra). In my opinion the policy and purpose of s. 5 to protect organizations and their representatives "from discrimination and victimization" applies just as strongly to dismissals by way of retrenchment as it does to dismissals in other " circumstances. In this connection I also reject Mr. Bleby's alternative submission that the court "should only order reinstatement if ... satisfied that someone else was taken on in the organization to replace" Mr. Sutherland. Mr. Bleby also asked the court to make a finding of fact that Mr. Sutherland would have been dismissed even if he had not engaged in the "union activity" refered to, but I am not prepared to make that finding on all the evidence before the court, including the evidence given last Monday by Mr. Johns that "I presume it would have to be process worker. I do not know of any second-class machinist vacancies - there was one in houseware - but I think it would have to be a process worker". As Mr. Bleby himself said later in his address "It is not enough to say he could be working as a process-worker at E&dwardstown, or as a storeman or die-caster or something; that is all a matter of conjecture". It is true that Mr. TE IO ER Ott ate mine AS ae ay SR enema Renter, pee RR ERB OE IN eR Sn SS PETTATI ' H t 't t i fI ! I I I t | \ ' \ \ t \ \ tt ha a he, od sce Ee tn a a het ea re a OB Neel neh ental Ne RRR eR RD Ad Liman Oe Mt perenne news ven Pee tee A EB EET PU sa a Ee Tate kee ce are Bleby went on to say "He would certainly not, on the evidence, have been working in his old or a similar position" but I am not prepared to make that finding having regard to Mr. Johns' evidence. Counsel for both parties agreed that any order made by the court should be in the form that Mr. Sutherland be "reinstated in his old position or in a similar position". Mr. Bleby's second submission was that it followed that the court should not give such a direction unless it was satisfied that his old or a similar position exists saying that the order must be capable of being reasonably complied with. I reject that submissionn as being much too sweeping. The mere fact that a position had been abolished (if it had occurred in a particular case) in order to prevent a direction to reinstate an employee could not thwart the intention of the section but, in any event, on the facts, I am not satisfied that "his old or a similar position" does not exist. Further I do not. consider that any onus lies on Mr. Sutherland to prove the existence of the position. In any event Mr. Bleby conceded that the position currently occupied by Mr. Buring is a "similar position" within s. 5(5). I should add that I accept Mr. Bleby's submission that a direction for reinstatement in the terms of the section would not permit "an employer to take back a second-class machinist ve a en ee ee pe Renn aah iad atid am aroun rest tn | | | { 7. as a process worker with a lower rate of pay"; such an action would not comply with the order. The third reason advanced by Mr. Bleby was that "the dismissal occurred in a situation of labour reduction" and that on the evidence it was clear that, even if he had not been dismissed in March 1982, Mr. Sutherland would not now be working at Woodlands Terrace. He submitted that the court should find "that some change would have occurred" in respect of Mr. Sutherland's employment in that he would have "agreed to go somewhere else to accept another offer or if he had not accepted such an offer, he would of necessity have been dismissed or retrenched". In this context he submitted that no reinstatement order should be made unless the court could be satisfied that he would still otherwise be working in his old or a similar position if he had not been dismissed. He put that as being "a complete bar to the exercise of discretion". Again I reject those submissions as being inconsistent with the purpose of the section and the principles referred to by the Full Court in Bowling's case (supra). Accordingly, I direct that Donald Sutherland be reinstated by the respondent, Hills Industries Limited, in his old position or in a similar position on Tuesday next, 28 September 1982. aaa a ke ons ee ee ee 8. As to the question of wages lost by Mr. Sutherland a quéstion was raised by Miss Harrison as to whether Mr. Sutherland would be required to repay, to the appropriate Commonwealth department, the amount of any social service payments received by him in respect of his periods of unemployment. As I have not had the benefit of any argument from counsel for either party on that question I do not intend to form any opinion on it. Section 5(5) of the Act simply refers to "wages lost by him" and in my opinion the wages that Mr. Sutherland would have earned, had he not been dismissed, are "wages lost by him" and are still "wages lost" even if he received social service payments in respect of certain periods of unemployment. Those payments are not wages. Accordingly, I" consider that the sum to be paid by the respondent should not have a deduction made in respect of those payments - although Mr. Johnston made it clear that he would not object to an order which permitted the employer to hold back $950-80 pending the making of inquiries as to whether there was any obligation on the employer to refund the amount to the department. I accept Mr. Johnston's submission that the amount of wages to be reimbursed should be based upon the position held by Mr. Sutherland at the time of his dismissal. I reject the respondent's argument that the order for the Sno cocl dnuaniadden tel dradadeenaanan tonaatemtan eaemenan een eee te nee Sen a pen ne Me eee eee ae ee Repo rrrenn ar area etr _ = ee oad Sa meen eermmcrmenees are RN em SS = Ce YEE " amount of "wages lost" should be based upon an assumption that Mr. Sutherland would have been reclassified as from 2 August, 1982 and thereafter paid as a process worker. The evidence does not establish that Mr. Sutherland would have accepted a lower position. It is possible that he would have been retrenched from 2 August, 1982 but in my opinion that is not a good reason for treating his loss of wages as having ended at that date. The amount payable for "wages lost" must also include an amount for the period ending Monday next, 27 September 1982 as the reinstatement order is to operate from the following day, 28 September 1982 - a date agreed upon by the parties as being suitable in the event of an order being made. Mr. Johnston indicated that he had supplied certain, information to Mr. Bleby as to earnings by Mr. Sutherland but the figure in respect of one period was not known. In the circumstances, I do not propose making a formal order today as to the amount payable for wages lost. The parties should be able to reach agreement as to the precise amount. Miss Harrison said that the respondent did not wish to make any submissions on the question of annual leave. Presumably it follows that the parties will be able to reach agreement as to whether Mr. Sutherland's annual leave credits are to be restored and the respondent in turn given a corresponding credit for the amount of $713-33 paid by it to ek eR nee eee ee ek ee ee ' * 10. him at the time of his dismissal. Liberty is reserved to either party to apply, on seven days notice to the other party, to have the matter restored to the list. I certify that this and thea. 1€ preceding pages are a true copy of the Reasen: for Judgmeni herein of the Honsurable Mr. Justice Keely, ON A OR ee Et EI A a ee ee er nen a