FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - complaint of unlawful termination - application for stay of reinstatement order of judicial registrar - whether stay should be granted because of impressions allegedly formed by workmates that the applicant was a dangerous person - relevance of finding of fact of judicial registrar on that issue to application for stay - costs - whether application for stay of reinstatement order was always bound to fail Workplace Relations Act 1996, ss 170EA, 170EHA VLADO GALINAC v LIBERTY MEATS EXPORTS PTY LTD VI 2567 of 1996 MARSHALL J MELBOURNE 11 JULY 1997 IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VI 2567 of 1996 ) GENERAL DIVISION ) BETWEEN: VLADO GALINAC Applicant AND: LIBERTY MEAT EXPORTS (AUST) PTY LTD Respondent JUDGE: MARSHALL J PLACE: MELBOURNE DATED: 11 JULY 1997 MINUTES OF ORDER THE COURT ORDERS THAT: 1. Paragraphs 2, 3 and 4 of the respondent's notice of motion dated 20 June 1997 are dismissed. 2. The review be conducted de novo. 3. The review be set down for hearing at a date to be fixed in consultation with the Listing Manager. 4. The applicant's costs of $800 be paid by the respondent to Messrs Slater & Gordon on or before 4.00 pm on Friday 25 July 1997. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VI 2567 of 1996 ) GENERAL DIVISION ) BETWEEN: VLADO GALINAC Applicant AND: LIBERTY MEATS EXPORTS (AUST) PTY LTD Respondent JUDGE: MARSHALL J PLACE: MELBOURNE DATED: 11 JULY 1997 EX TEMPORE REASONS FOR JUDGMENT AS REVISED FROM THE TRANSCRIPT On 19 June 1997 Judicial Registrar Parkinson made the following orders in an application under section 170EA Workplace Relations Act 1996, ("the Act"), brought by Vlado Galinac against Liberty Meats Exports (Aust) Pty Limited ("Liberty Meats"): "(1) pursuant to section 170EE(1)(a)(i) of the Workplace Relations Act 1996 on and from 23 June 1997 the respondent reappoint the applicant to the position in which he was employed immediately before the termination of the employment; (2) pursuant to section 170EE(1)(b)(i) of the Workplace Relations Act 1996 the employment of the applicant by the respondent be treated for all purposes as having been continuous between the date of the termination of the employment and the date of re-employment pursuant to order (1) herein; (3) pursuant to section 170EE(1)(b)(ii) of the Workplace Relations Act the respondent pay the applicant within 21 days of this order remuneration lost by the applicant between 4 October 1996 and 8 April 1997 as a consequence of the termination of the employment; (4) the parties have leave to apply to the Court on 24 hours notice in the event that agreement cannot be reached in relation to the calculation of the amount of lost remuneration in order (3) herein." On 23 June 1997 Liberty Meats filed in the Registry a notice of motion seeking a review of the exercise of power by the Judicial Registrar and a stay of her orders pending the hearing and determination of the review. An affidavit in support of the notice of motion was sworn by Rudolf Boehm, a Director of Liberty Meats. He opposed the reinstatement of Mr Galinac on the basis that the termination of Mr Galinac's employment occurred because of his misuse of a knife and that safety considerations dictated that the reinstatement order ought to be stayed. On the question of remuneration lost, Mr Boehm deposed that Liberty Meats was prepared to pay any such sum into an interest-bearing account for the benefit of Mr Galinac. On 30 June 1997 Mr Galinac swore an affidavit in which he deposed that he was ready, willing and able to return to work and that he was aware that in the event that he did not succeed on review, he would have to repay any monies which he might receive in the interim as a result of the order of the Judicial Registrar. The argument in support of the stay advanced this afternoon by counsel for the respondent employer, Mr Hands, was that reinstatement should be refused because of the impression that the workforce would gain that Mr Galinac was a dangerous person because the employer believed and still believes that Mr Galinac threatened a foreman with a knife. The Judicial Registrar did not accept the evidence of such a threat. The Judicial Registrar found that what had been alleged by the employer did not occur. I am not in a position to re-visit that evidence, not having seen the witnesses for myself and it would not be appropriate on a stay application at this stage to form a different view of that incident to the one that the Judicial Registrar formed. Any impressions that other workers on the shop floor may have as to the dangerous nature of Mr Galinac may be ameliorated if the workers were informed as to what the Judicial Registrar had found to be the facts of the matter. It may be that if those findings were conveyed to them, they would have a different view about Mr Galinac. No other basis was advanced by counsel to stay the reinstatement. The only basis put forward to stay the reinstatement was an entirely unconvincing one and was really one that took issue with a matter of merit dealt with by the Judicial Registrar. In the circumstances, having regard to the fact that that was the only issue that was relied upon in order to stay the order of the Judicial Registrar, in my view it is not an appropriate case to grant a stay of the reinstatement order and I refuse to stay that reinstatement order. It follows that the only other consideration in respect to the order of the Judicial Registrar is the question of remuneration lost. Mr Hands did not press for a stay in respect of remuneration. The remuneration lost payment should be made as soon as possible. I will order on the notice of motion dated 20 June 1997 of the employer Liberty Meats that the review be conducted de novo; that paragraphs 2, 3 and 4 of the notice of motion be dismissed. I will order then thirdly, that the matter be set down for hearing at a date to be fixed in conjunction with the Listing Manager in the October blitz, preferably in the second week of the blitz. That is the week commencing 13 October 1997 and I will note on the file that it is anticipated that the matter will take three hearing days. Ms Doyle, on behalf of Mr Galinac, made application pursuant to section 170EHA of the Workplace Relations Act 1996 for costs to be imposed upon the respondent company having regard to the fact that the application for stay was so unmeritorious as to be effectively bound to fail. She referred the Court to the decision of the Industrial Relations Court in Fenech v Perfect Health Medical Centres Pty Ltd (unreported, Marshall J, IRCA, 2 May 1996) where it was found that in circumstances where it was clear that a particular application was bound to fail costs should be awarded against the party that brought that application. As argued in the proceedings before me the only basis for a stay being sought was upon an allegation from the view of the employer that safety would be jeopardised by the return of the employee to the workplace. This view flies in the face of the finding of the judicial registrar in circumstances where a judge hearing the application for a stay could not possibly form a different view at this stage of the litigation without actually seeing the witnesses for herself or himself so therefore it follows, in my view, that the stay application was always bound to fail. On the question of stay in respect of remuneration lost the paucity of arguments available on that issue and the weight of authority on it no doubt led the respondent to abandon that argument. I therefore believe that this is a clear case for the application of section 170EHA of the Act and a consequent order for costs. I order costs of $800 to be paid by the respondent to Mr Galinac and I order that such sum be paid to the solicitors for Mr Galinac, Messrs Slater & Gordon, on or before 4 pm on Friday 25 July 1997. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall delivered ex tempore and revised from the transcript. Associate: Dated: 11 July 1997 Counsel for the Applicant: Ms R Doyle Solicitor for the Applicant: Slater & Gordon Counsel for the Respondent: Mr P Hands Solicitor for the Respondent: Kennedy Guy Date of Hearing: 11 July 1997 Date of Judgment: 11 July 1997