JUDGMENT No.2 6.7 €&=, CATCHWORDS Industrial law - employer and employee - dismissal by reason of membership of registered organization - penalty - reinstatement in employment - whether delay a bar - hardship to other employees - financial circumstances of employer - reimbursement of wages lost - whether deduction for delay - whether duty to mitigate whether reduction for higher earnings during part of period - financial circumstances of employer. Conciliation and Arbitration Act 1904 s.5. AU T LO ' UNION v. s PR : . trading as $ WHOLESALE MEATS Nos. I 33 and I 44 of 1987 GRAY J. MELBOURNE 8TH JUNE 1988 ) Py ) NEW SOUTH WALES DISTRICT REGISTRY } No. I 33 of 1987 INDUSTRIAL DIVISION } BETWEEN: U: TT STRY EMPLOYEES' UNION Prosecutor -and- SUNLAND ENTERPRISES PTY. LTD. trading as OLE: rs Defendant MINUTES OF ORDER THE COURT 0. THAT: The defendant, Sunland Enterprises Pty. Ltd., is convicted of an offence against s.5(1)(a) of the Conciliation and Arbitration Act 1904, in that on 25th September 1986, it did dismiss Christopher Bernard Collins from his employment, by reason of the circumstance that he was a member of the Australasian Meat Industry Employees' Union, an organization registered pursuant to that Act. The defendant is sentenced to pay a fine of $250.00 in respect of the offence. The defendant forthwith reinstate Christopher Bernard Collins in the position of permanent slaughterman at the defendant's abattoir at Landsborough, or ina similar position. The defendant reimburse Christopher Bernard Collins wages lost by him as a result of the dismissal on 25th September 1986, in the sum of $3,461.92. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) " NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION OF"_AU: IA No. I 44 of 1987 BETWEEN: 'AN r_ INDUSTRY OYEES' UNION Prosecutor -and- SUNLAND ENTERPRISES PTY. LTD. trading as SUNLAND WHOLESALE MEATS Defendant MINUTES OF ORDER THE COURT ORDERS THAT: 2. The defendant, Sunland Enterprises Pty. Ltd., is convicted of an offence against s.5(1)(a) of the Conciliation and Arbitration Act 1904, in that on 25th September 1986, it did dismiss Selwyn Andrew Cannon from his employment, by reason of the circumstance that he was a member of the Australasian Meat Industry Employees' Union, an organization registered pursuant to the Act. The defendant is sentenced to pay a fine of $250.00 in respect of the offence. The defendant forthwith reinstate Selwyn Andrew Cannon in the position of permanent slaughterman at the defendant's abattoir at Landsborough, or ina similar position. The defendant reimburse Selwyn Andrew Cannon wages lost by him as a result of his dismissal on 25th September 1986, in the sum of $26,603.76. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) wweww nw NEW SOUTH WALES DISTRICT REGISTRY Nos. I 33 and I 44 ofTNDUSTRIAL DIVISION BETWEEN: ' ON Prosecutor -~and- SUNLAND. ENTERPRISES PTY. ETD. trading as SUNLAND WHOLESALE MEATS Defendant ONS FOR <r JUDGE: Gray J. PLACE: Melbourne DATE: 8th June 1988 In a judgment delivered on 28th April 1988, the Court found that the defendant, Sunland Enterprises Pty. Ltd. was guilty of two offences against s.5(1l)(a) of the Conciliation and Arbitration Act 1904 ("the Act"). The offences resulted from the dismissal of Christopher Bernard Collins and Selwyn Andrew Cannon from their employment, by reason of the circumstance that each of them was a member of the Australasian Meat Industry Employees' Union ("the Union"). The circumstances of the offences are set out in that judgment. The proceedings were adjourned to enable the filing of affidavits going to the questions of the "4 2. appropriate penalty, and of any further orders pursuant to s.5(5) of the Act. That sub-section provides as follows: "Where an employer has been convicted of an offence against this section the court by which the employer is convicted may order that the employee be reimbursed any wages lost by him and may also direct that the employee be reinstated in his old position or in a similar position." At the adjourned hearing, om 31st May 1988, evidence was received going to the questions of penalty, reinstatement and reimbursement of lost wages. It _is convenient to consider those three matters under separate headings. PENALTY . The maximum penalty for which s.5(1) of the Act provides is a fine of $400.00. Inflation has reduced this to @ small sum, and has narrowed the range of penalties to the point at which it becomes impossible to distinguish adequately between different gradations of offences. Mr. Murdoch of counsel urged several factors in mitigation of penalty. The defendant is not shown to have offended previously. Although membership of the Union was a substantial operative tactur in Lhe decision Lu dismiss each of Messrs. Collins and Cannon, it was not the only factor. 3. At the time, a number of employees of the defendant, including Messrs. Collins and Cannon, were refusing tao work. Two opportunities were given to them to return to work, one at the gate of the defendant's abattoir, on the morning on which the employees informed the defendant that they would not return to work unless a stipulated condition was satisfied, and one on the following day by telephone, before the dismissals took place. In addition, before dismissing employees, the defendant took advice from the Meat and Allied Trades Federation of Australia. Mr. Murdoch submitted that the defendant was not shown to have been either cold-blooded, or anxiously awaiting an opportunity to "drop the axe" on employees who were union members. This may be true, but it is clear that the dismissals were the result of a strong determination on the part of those involved in managing the defendant not to have union members employed at the defendant's abattoir. Such a determination conflicts directly with the policy which lies behind s.5 of the Act. The penalty must reflect the need to deter the defendant, and other employers, from giving effect to such determinations. It is only possible to speculate on what would have occurred if Messrs. Collins and Cannon had attempted to resume work whilst retaining their Union membership. Other employees who did resume work were encouraged to resign from the Union, and were assisted in doing so by Mr. Sheen, the defendant's manager. In all the circumstances, an appropriate penalty is afine of $250.00 in each case, making tctal fines of $500.00, REINSTATEMENT IN EMPLOYMENT . In Bowling v. General Motors Holdens Ltd. (1980) 50 F.L.R. 79, the Full Court discussed at length the correct approach to the discretionary power to direct the reinstatement of an employee in respect of whom an offence has been committed under s.5 of the Act. At pp. 94-95, the Court said: "The policy and purpose of sub-ss. (1) and (4) of s.5 is to protect organizations of employees and their representatives from discrimination and victimization by employers. Subsection (5) gives effect toan essential feature of that policy and purpose of s.5. It is essential that an employer convicted of an offence against the section should not benefit from that offence by ridding itself of an employee by reason of any one or more of the circumstances specified. Accordingly, once the condition precedent has occurred, the court should give a direction to reinstate the employee unless there are good reasons why the employee should not be reinstated, for example if the employee does not desire to be reinstated. In most cases reasons which were relied upon to justify the dismissal of the employee are not really relevant to the exercise of the discretion conferred by s.5(5), since the conviction of the employer overrides those reasons. What are good reasons will vary from case to case. We have already tndicated some but it is impossible to give any exhaustive list." , The reasons to which the Court refers as having been already indicated appear at p. 94; they are "where the employee had died prior to the conviction, or the employee did not desire to be reinstated, or where the employer had ceased to conduct the business prior to conviction". It was recognised in Lewis Construction Co. Pty. Ltd. v. Martin (1986) 70 A.L.R. 135, at pp. 144-145 that there is a "prima facie principle that an employee should be reinstated upon a conviction of his or her employer". Mr. Murdoch advanced four circumstances as reasons why the Court should not exercise its discretion to direct that Messrs. Collins and Cannon he reinstated in their employment. These reasons were undue delay on behalf of the prosecutor, hardship to innocent third parties, the financial state of the defendant's abattoir business and the fact that opportunities were given to Messrs. Collins and Cannon to return to work before they were dismissed. I shall deal with these circumstances itn order. The argument in respect of undue delay arose from the fact that, although the offences were committed on 25th September 1986, proceedings were not commenced until 16th September 1987, when informations were laid and summonses were filed in the New South Wales District Registry of the Court. Section 21(1)(c) of the Crimes Act 1914 provides that 6. & prosecution in respect of an offence against any law of the Commonwealth, where the punishment provided in respect of the offence is a pecuniary penalty and no term of imprisonment is mentioned, may be commenced at any time within one year after the commission of the offence. These proceedings were therefore commenced only shortly prior to the expiration of the limitation period. In October and November 1986, there were proceedings before the Australian Conciliatiscn and Arbitration Commission, in which the Union raised the question of the termination of employment of Messrs. Collins and Cannon and other persons. The Defendant took the point that the Commission had no jurisdiction to deal with that question. On 21st November 1986, Mr. Deputy President Riordan held that there was no jurisdiction for the Commission to make an order against the defendant. The taking of those proceedings may explain the failure of the Union to commence proceedings under s.5 of the Act prior to 2lst November 1986. Its failure to commence these proceedings from then until 16th September 1987 is unexplained. It should be said that there is no allegation of delay in pursuing the proceedings once they were commenced. Indeed, the trial began well within three months after the filing of the informations. The delay of which the defendant complains is wholly delay within the limitation period. The defendant's first argument was that any right to reinstatement was lost automatically by delay. This argument was based on the following passage in the judgment of the Commonwealth Industrial Court in Ferguson v. George Foster & Sons Pty. Ltd. (1969) 14 F.L.R. 370, at p. 381: "Bennett and Walker deposed that they desire reinstatement in their employment with the defendant. The informant seeks an order that they be reinstated. The defendant had given no evidence that their reinstatement would cause inconvenience or affect the employment of other persons. However, action in these cases was not commenced until almost six -- months from the date of the dismissals. In the meantime Bennett and Walker have obtained other employment, which is not shown to be materially less beneficial to them than was their employment with the defendant. No doubt also employees have been engaged in their stead by the defendant. Although reinstatement would have been an appropriate remedy in these cases had it been sought speedily by action in this Court or perhaps even by request, it is a remedy easily lost by delay and we think in the circumstances which have occurred between dismissal and action the delay which occurred is fatal." In the alternative, it was suggested that delay was a discretionary factor which should weigh heavily in the mind of the Court in deciding whether to direct reinstatement. This argument was based on Jones _v. Thiess Bros. Pty. Ltd. (1977) 30 F.L.R. 422, at pp. 442-443. In that case, Keely J. listed a number of factors, some of which were present and some of which were not present, which he regarded as relevant 8. to the exercise of the discretion to direct reinstatement. One of these factors was that there had not been undue delay in bringing the proceedings. His Honour did make it clear that he did not regard any one of the factors listed as critical to the exercise of the discretion. Subsequently, in Bowling v. General Motors-Holden's Pty. Ltd. (1980) 42 F.L.R. 309, at pp. 326-328, Keely J. adopted a similar approach on the question of reinstatement, namely that of listing the competing factors and determining the balance. In so doing, his Honour made reference to his earlier judgment in Jones v. Thiess Bros. Pty. Ltd. It was on appeal from Keely J. in Bowling that the Full Court adopted the approach to which I have referred earlier, under which there is a prima facie right to reinstatement. In adopting ' that approach, the Full Court referred to Keely J.'s reasoning, and to the earlier judgment in Jones _v. Thiess Bros. Pty. Ltd., in a way which makes it clear that the Full Court was rejecting the notion of the balancing of various factors. See vy. General Motors-Holden's Pty. Ltd. (1980) 50 F.L.R. 79, at pp. 88-89 and 95. In my view, the result is that the earlier approach with respect to delay must be taken to have been rejected. In particular, delay cannot be regarded as any sort of a bar to the exercise of the discretion to direct reinstatement, as was the case in ix v G Sons _ Pty. Ltd., referred to earlier. This reasoning is in accord with the approach now taken by courts to statutory periods of limitation, when considering matters such as the dismissal of proceedings for want of prosecution. The current view is that an initiating party has a legal right to commence a proceeding at any time within the limitation period; the fact that a proceeding is commenced at or near the end of that limitation period only involves the conclusion that the initiating party has exercised that right, and cannot properly lead to criticism of that party. See Birkett v. James (19782 A.C. 297, at pp. 322-323, in the speech of Lord Diplock. In the present case, the prosecutor had a legal right to commence proceedings at any time within one year after the commission of the offences. It cannot be criticised for not having exercised that right at an earlier date. If I am wrong about the proper approach to delay, and it is a matter of the exercise of discretion, I should not give it much weight in the circumstances of the present case. The defendant had ample notice from an early date that reinstatement was sought; this was the very object of the proceedings in the Australian Conciliation and Arbitration Commission in October and November 1986. In the course of those proceedings, Mr. Deputy President Riordan said to the representative of the Union, in the presence of the representative of the defendant, "You will have to consider your position and you will have to consider what application 10. or claim your union may wish to make or serve." This was, at the very least, an intimation to the defendant that it could not ignore the possibility of further proceedings. In Ferquson v. George Foster & Sons Pty. Ltd., in the passage which I have quoted, the Commonwealth [Industrial Court referred to the appropriateness of reinstatement as a remedy had it been sought speedily "by action in this Court or perhaps even by request". In the presenl cuse, Lhe Union did more than request reinstatement, it sought it in the Australian Conciliation and Arbitration Commission. No prejudice is shown to have resulted to the defendant by reason of the late commencement of the proceedings. 'The other factors which are relied upon in opposition to reinstatement are not shown to have been exacerbated by lapse of time. One person was engaged as a permanent slaughterman on lst November 1986, whilst reinstatement was being sought in the Australian Conciliation and Arbitration Commission, and two persons have been promoted to that position in December 1987, during the trial of these proceedings. It cannot therefore be said that the defendant has been lulled by the delay into filling the positions, without notice that a claim for reinstatement was being made. In those circumstances, I should not refrain from reinstatement on the ground of delay. In support of the proposition that hardship to innocent third parties would be caused by a direction for ll. reinstatement, the defendant put forward evidence of the number of persons presently employed by it, and the positions in which they are employed. Each of Mr. Collins and Mr. Cannon wes a permanent slaughterman before his dismissal. On the date of the dismissals, there were five permanent slaughtermen employed, together with another permanent employee engaged as a slaughterman for half his time, and as a boner for the other half. There were also four casual slaughtermen. Presently there are seven permanent and five casual slaughtermen. Of the present permanent slaughtermen, all but one were employed by the defendant prior to September 1986. As I have said, one was engaged on lst November 1986 and two others were promoted during December 1987. In conjunction with this evidence, the defendant relied upon evidence that its financial position is such that it would be necessary to dismiss employees in order to reinstate Messrs. Collins and Cannon. The addition of two extra permanent slaughtermen could not he contemplated without increasing the defendant's production, and there is no real prospect that the defendant could increase its share of the market to the extent necessary to sell the increased production. In addition, some capital expenditure may be necessary to create more cold rooms if production were to be increased. The only alternative would be overmanning, which would result in an increase in production costs, and a reduction of the defendant's competitiveness. Details were 12. given of the employment and family histories of all present employees. In Bradford v. Prentice Builders Pty. Ltd. (1986) 15 I.R. 342, at pp. 346-347, Keely J. dealt with a similar argument in the following terms: "It was also submitted that the application should be refused because .an order for reinstatement would result in the defendant having to dismiss an employee who had longer service with the company and whom the defendant regarded as being a more satisfactory employee. In my opinion the principles expressed by the Full Court in -- nq's case are not consonant with the court taking into account, as a factor relevant to the exercise of its discretion, the fact that the defendant considered an existing employee to be more satisfactory. If that opinion is wrong and that matter could be relevant, then, in the circumstances of this case, I would attach no weight to it." I respectfully agree that the principles laid down by the Full Court in Bowling mean that, only in exceptional cases, will it be considered relevant to the question of reinstatement that an employer would have to dismiss another employee to make room for the reinstated employee. This must be so particularly ina case such as the present, in which the evidence discloses that no existing employee of the defendant is a member of the Union. If the policy of s.5 is that expressed in the Full Court judgment in Bowling, the Court can hardly be expected to give the interests of employees who are not members of any registered organization 13. preference over the interests of employees who have been dismissed by reason- of the circumstance that they were members of such an organization. Another principle is important. If the Court were to refuse to reinstate employees on the basis that such reinstatement would involve a reorganization of a convicted employer's operations, in order to avoid undue expense, there would be very few reinstatement orders made. It would be a rare employer which could hold unfilled the positions of dismissed employees to await the outcome of Court proceedings. In almost every case, reinstatement is bound to affect the employer adversely in a financial sense, and to cause disruption in the employer's activities. An employer found guilty of an offence can hardly be heard to complain of these matters. In some cases, it would be possible for an employer deliberately to arrange its affairs, so as to avoid reinstatement. I am not suggesting that there is any evidence that such a deliberate rearrangement occurred in the present case, but to take account of the existing circumstances would be to encourage such rearrangements. Finally, it is inevitable that attention will be directed to the circumstances as they exist at the time when the Court comes to consider the question of reinstatement. It cannot be assumed, however, that those circumstances are immutable. Turnover in employment does occur, and there is no reason why the Court should pay particular attention to the precise 14. identity of persons who happen to be employed at any one time No doubt, a comparison between the personal circumstances of a dismissed employee and the personal circumstances of an existing, even longer serving, employee would be difficult, ana the outcome may be said to lead to injustice in both directions. It is for this reason that, in all but the most exceptional cases, the Act does not require such a comparison to be undertaken. It should be noted that, in considering questions of the defendant's finances as they bear on reinstatement, and the question of injustice to third parties, I have looked only at the employment by the defendant of permanent Slaughtermen. No argument was addressed to the question whether any other classification could be regarded as a "similar position" for the purposes of s.5(5) of the Act. In the absence of such argument, I would not regard as a similar position any job which was casual rather than permanent, which involved a lower wage rate or conditions of lesser benefit to the employee, or which required the employee to Perform duties substantially different from those of a slaughterman. The remaining circumstance relied on by the defendant was the fact that Messrs. Collins and Cannon, along with others who indicated their intention to cease work on 24th September 1986, were given two opportunities to return 15. to work. Little argument was directed to this circumstance. It is not clear how the defendant relies on it as going to the question of reinstatement It cannot be relied upon as indicating unwillingness on the part of either Mr. Collins or Mr. Cannon to work for the defendant. The circumstances in which they and other employees refused to engage in work at the particular time were peculiar to that time; they involved a protest over the dismissal of another employee. On the evidence before me, I am satisfied that both Messrs. Collins and Cannon desire to be reinstated in their old positions. Mr. Cannon is presently unemployed. Mr. Collins is either unemployed, or will become so very shortly, when a job which he has been performing in the Northern Territory comes to an end. To the extent to which the two opportunities given by the defendant before dismissal can he taken into account, they do indicate that each of the two employees was considered by the defendant to be a satisfactory employee, whom the defendant was prepared to employ. Some evidence, of an inconclusive nature, was tendered as to absenteeism by Mr. Cannon and Mr. Collins, and of an actual or possible back injury by Mr. Collins. No argument was directed to these considerations, and I make no findings upon them. If it is of any account, I can only find that each of the two employees is an acceptable employee for the defendant. 16. There was also a statement in the affidavit of Mr. Peter John Sheen, on which reliance was placed by the defendant, that neither Mr. Cannon nor Mr.Collins has approached the defendant to seek re-employment. Again, no argument was addressed to this proposition. It sounds extremely hollow in the light of the two sets of proceedings taken by the Union to secure the reinstatement of Messrs. Collins and Cannon. An attempt was made to introduce evidence of likely unrest should Messrs. Collins and Cannon return to work at the defendant's abattoir. The evidence was of a very sketchy nature, in an affidavit of the leading hand, which combined aspects of hearsay and inadmissible opinion evidence. For these reasons, the evidence was the subject of objection and was not admitted. Even if admissible, for reasons similar to those given by Keely J. in Bradford v. Prentice Builders Pty, Ltd. (1986) 15 A.R. 342, at pp. 345-346, it would not be persuasive in the exercise of the discretion to direct reinstatement. For these reasons, the defendant should be directed to reinstate both Mr. Collins and Mr. Cannon in their old positions as permanent slaughtermen at the defendant's abattoir in Landsborough. 17. REINBURSEMENT OF WAGES LOST In : —H 's Pt td. (1980) 50 F.L.R. 79, at p. 90, the Full Court said: "There is no cross appeal against the order made by the trial judge directing partial reimbursement of wages lost by the appellant and so the appeal does not raise directly the meaning of the word "may" when used in relation to an order that an employee be reimbursed wages lost by him, but in all Probability the word ""may" in that context should be construed as having the same meaning as the word "may" when used later in the same subsection in the phrase "may also direct"." Because this comment was not essential to the reasoning of the Full Court, it is not binding. Nevertheless, there is much sense in the proposition that the word "may", when used more than once in the one subsection, inthe giving of discretions consequent upon the same event, should be construed in the same way. Accordingly, I take the view that the Court should order the reimbursement of wages lost by an employee in respect of whom an offence under s.5(1) of the Act has been committed unless exceptional circumstances exist. The primary circumstance relied upon by the defendant in resisting orders for reimbursement in the present case was undue delay in commencing proceedings. With respect to the reimbursement of wages, delay does have ig. consequences which are different from those flowing from delay in an application for reinstatement in employment. The most obvious of these consequences is that delay will lead to an increase in the total amount to be claimed. In the present state of the law, I do not accept that the Court should refrain from ordering the reimbursement of wages lost, or part of wages lost, because of delay in the commencement of the proceedings. As I have already pointed out in relation to reinstatement, the statutory framework is such as to give a legal right to commence proceedings at any time within one year after the commission of the offence. No criticism can be levelled at a prosecutor who commences proceedings within that time. I am conscious that, in Bowling v. General Motors-Holden's Pty. Ltd. (1980) 42 F.L.R. 309, at p. 326, Keely J. did decline to make an order in respect of wages lost during a period while the prosecutor in that case was pursuing a remedy in a State industrial tribunal, which turned out to be unsuccessful. No appeal was brought from that decision, but the remarks to which I have referred in the judgment of the Full Court are sufficient to indicate that the approach of Keely J. in that respect is not one which should be followed today. Some reliance was placed on a remark ina joint judgment of two members of the Australian Industrial Court in oe v — den's Pty. Ltd. (1975) 8 A.L.R. 197, at p. 216, where their Honours said: 19. "It was properly conceded by Mr. Harrison that a claim for reimbursement with respect to the period prior to the laying of the information herein...could not be sustained." With respect to their Honours, such a concession seems to have been extraordinary in the light of the terms of s.5(5) of the Act. In the later Bowling case (1980) 42 F.L.R. 309, at p. 325, Keely J. rejected the proposition that no amount could be claimed before the laying of the information. His Honour pointed out that the acceptance of a concession of counsel could not be regarded as a decision that no claim could be made in respect of the period before the laying of the information. His Huriuur alsu relLerred Luo Lhe laclh Lhal in Ferguson _v. George Foster & Sons Pty. Ltd. (1969) 14 FP.L.R. 370, at p. 381, the Commonwealth Industrial Court ordered payment of wages lost from the date of dismissal until new employment was found. In my view, there is no such restriction on the right to claim wages lost as was contemplated by the two members of the Australian Industrial Court. Some attempt was made to argue that, because of the delay in commencement of the proceedings, the defendant had not had an opportunity to make financial provision for the payment of wages, and is now in a position where it has no reserves and no unencumbered assets against which it could borrow the amounts claimed. No attempt was made to give a 20. complete account of the defendant's financial position. In cross-examination on his affidavit, Mr. Sheen admitted that since the proceedings were commenced the defendant has made no attempt to establish any reserve against the possibility of orders for reimbursement of wages, and that the earlier commencement of the proceedings would have made no difference to this position. In my view, the financial position of a convicted defendant should not be taken into account in determining whether to order reimbursement of lost wages. If it should be taken into account, then as a matter of discretion, in the circumstances of this case, it does not outweigh the claims which both Mr. Collins and Mr. Cannon have. The evidence is that Mr. Collins was unemployed for a period of five weeks after his dismissal. He then obtained employment as a bricklayer's labourer at a rate below that which he had been receiving whilst employed by the defendant. On 9th April 1987, he took up employment at Charters Towers in Queensland, and subsequently he has worked in the Northern Territory. Figures are available in respect of his earnings up until 9th April 1987. After that date, it is conceded that he was in receipt of more money than he would have earned had his employment with the defendant continued. Subject to one minor matter, the parties are agreed in the arithmetical calculation of wages lost by Mr. Collins 2l. between 25th September 1986 and 9th April 1987. The agreed sum takes into account muneys earned by Mr. Collins as a bricklayer's labourer during that time. The total agreed is $3,421.92. The small amount in contention concerns a payment of what was described as an "attendance allowance" of 340.00 per week. On the evidence, this attendance allowance continued to be paid only for a period of "one or two weeks" after Mr. Collins was dismissed. In other words, had his employment continued, he would no longer have been paid this amount beyond that time. In the circumstances, it is appropriate to add $40.00 to the agreed amount. - Mr. Murdoch contends that the defendant ought not to be ordered to pay any sum to Mr. Collins, on the basis that he should be obliged to bring into account the higher wages which he earned after 9th April 1987. Some support for this proposition is to be found in the joint judgment of Smithers and Evatt JJ. in Bowling Vv. General Motors-Holden's Pty. Ltd. (1975) 8 A.L.R. 197, at p. 216, that: "It would be proper to award him the difference between his actual earnings and those he would have received for that period if he had remained in his employment with the defendant." This approach was followed by Keely J. in Bowling v. General Motors-Holden's Pty. Ltd. (1980) 42 F.L.R. 309, at p. 22. - 326. Im neither case, however, does it appear that the Court was considering the question of reimbursement to a person who has had more than one job, ora substantial variation in earnings from time to time during the intervening period. [In my view, it would be unjust to such a person to allow an employer convicted of an offence under s.5 to take advantage of higher earnings which the dismissed employee may have earned during part of the intervening period. There can he no proper analogy with the obligation of a plaintiff to mitigate damages. There is no reason why a dismissed employee should be regarded as working for the benefit of his or her tormer employer when earning a higher wage, particularly if that employee earned no wage, ora lower wage, for part of the intervening period. To take into accounl higher wayes earned during part of the relevant period against lower wages earned during another part might lead to difficult comparisons. One job may involve remoteness, longer hours, less convenient shifts, or other factors of hardship, for which the employee receives more. In my view, the correct principle is to award to the dismissed employee reimbursement of the full wage which would have been earned during any period for which the employee has been unemployed after the date of dismissal, together with the difference between what was actually earned and what would have been earned during any period for which the employee has been employed at a lesser wage, and to ignore any period during which the employee has been employed at a wage equal 23. to or greater than that which would have been earned. Taking that approach in the present case, the appropriate figure is the agreed amount plus $40.00 for the attendance allowance, a total of $3,421.92 in respect of Mr. Collins. Mr. Cannon has been unemployed throughout the period since his dismissal, save for one half day for which he was paid the sum of $43.00. Again, the arithmetical calculation is agreed between the parties. If Mr. Cannon is entitled to be reimbursed wages since his dismissal, it is agreed that he is entitled to a total of $26,603.76. - In respect of Mr. Cannon, I do not regard it as appropriate to add $40.00 for the attendance allowance, because of the $43.00 which he was able to earn, which is not taken into account in the agreed figure. With respect to Mr. Cannon, Mr. Murdoch submitted that some allowance should be made for the fact that Mr. Cannon had not heen sufficiently diligent in seeking work. Again, the analogy with mitigation of damages by a plaintiff is not appropriate. It hardly lies in the mouth of a guilty employer to say that a dismissed employee should have been more active in seeking alternative employment, whilst a proceeding was pending in which his reinstatement was sought. This is particularly so when the suggestion is made that Mr. Cannon should have sought work in abattoirs anything up to two hours' drive from his home, or should have been prepared 24. to take his four children from the school which they attend and move with them and his wife to another ijucality, where employment may have been more readily available. Mr. Cannon himself gave evidence of attempts to obtain employment. He was registered with the Commonwealth Employment Service in his locality, and attended interviews at a couple of meatworks and at other places. In the end, the only criticism which was levelled seriously at Mr. Cannon was that he had not bothered to investigate employment ata large abattoir at which he had been employed previously. No explanation was given in evidence as to this failure. In the circumstances, I donot regard it as significant. In my view, an order should be made for the total amount claimed in respect of Mr. Cannon. ar s Counsel for the prosecutor: Mr. Goot Solicitors for the prosecutor: Poteri Wood & Co. Counsel for the defendant: Mr. Murdoch Solicitors for the defendant: Morris Fletcher & Cross Date of Hearing: 31 May 1988. 25. I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment of the Honourable Justice Gray. Dated: 7 Suau 173% Associate: buat Ahh