FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - complaint of unlawful termination - onus of proof - whether employer bore onus of proving termination not at its initiative where employee alleged a breach of s170DF Workplace Relations Act Workplace Relations and Other Legislation Amendment Act 1996, Sch 16 Workplace Relations Act 1996, ss 170CB, 170EA, 170EDA, 170DF Johns v Gunns Limited (1995) 60 IR 258 Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200 RUBEN MELIDE v RETHMANN AUSTRALIA ENVIRONMENTAL SERVICES PTY LIMITED No. NI 97/1138 MOORE, MARSHALL AND NORTH JJ MELBOURNE (HEARD IN SYDNEY) 13 AUGUST 1997 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NI 1138 of 1997 ) GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA BETWEEN: RUBEN MELIDE Appellant AND: RETHMANN AUSTRALIA ENVIRONMENTAL SERVICES PTY LIMITED Respondent JUDGES: MOORE, MARSHALL AND NORTH JJ PLACE: MELBOURNE (HEARD IN SYDNEY) DATED: 13 AUGUST 1997 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal is dismissed Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NI 1138 of 1997 ) GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA BETWEEN: RUBEN MELIDE Appellant AND: RETHMANN AUSTRALIA ENVIRONMENTAL SERVICES PTY LIMITED Respondent JUDGES: MOORE, MARSHALL AND NORTH JJ PLACE: MELBOURNE (HEARD IN SYDNEY) DATED: 13 AUGUST 1997 REASONS FOR JUDGMENT THE COURT This is an appeal from a judgment of Wilcox CJ sitting as a single judge of the Industrial Relations Court of Australia ("IRCA"). The jurisdiction of IRCA is now, in substance, vested in the Federal Court of Australia by operation of Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 and this appeal is a proceeding in that latter Court. BACKGROUND On 8 August 1996, Mr Melide lodged with the Australian Industrial Relations Commission an application under s170EA of what is now entitled the Workplace Relations Act 1996 ("the Act") for relief in respect of the termination of his employment by Rethmann Australia Environmental Services Pty Limited ("Rethmann"). Rethmann conducted garbage removal services in which Mr Melide was engaged as a casual employee. Mr Melide's employment with Rethmann ended on 24 July 1996. His application was heard by Judicial Registrar McIlwaine on 15 January 1997. On 16 January 1997 the Judicial Registrar delivered ex-tempore reasons for judgment in which he found that Mr Melide's employment had been terminated by Rethmann in contravention of provisions of Div 3 of Pt VIA of the Act, including s 170DF(1) of the Act, and awarded him damages and compensation. The Judicial Registrar revised his ex-tempore decision from the transcript on 4 April 1997. His reasons for judgment bear that date but were in fact delivered ex-tempore on 16 January 1997. On 23 January 1997 Rethmann applied for a review of the exercise of power by the Judicial Registrar. An affidavit in support of a notice of motion seeking a review was sworn by a Mr Nicholas Chadwick on behalf of Rethmann. Paragraph 2 of that affidavit states that: "The Respondent claims that the Applicant resigned his employment with the Respondent on 24 July, 1996." At a directions hearing held prior to the substantive hearing of the review, the parties advised Wilcox CJ that they wished that the transcript of the evidence before the Judicial Registrar, plus some additional affidavit evidence, be the evidence in the review. The additional affidavit evidence was filed but it did not touch upon the one issue determined by the trial judge, i.e. whether Mr Melide's employment was terminated at the initiative of Rethmann. The review was heard by Wilcox CJ on 8 April 1997. On the same day he delivered an ex-tempore judgment in which he allowed the review and set aside the orders which had been made by the Judicial Registrar. REASONING OF THE TRIAL JUDGE Wilcox CJ held that there was conflicting evidence on the review (which was contained in the transcript of evidence before the Judicial Registrar) as to whether Mr Melide's employment had been terminated at the initiative of Rethmann. He dismissed Mr Melide's application and allowed the review, finding that Mr Melide had failed to discharge the onus which he bore of proving that his employment had been terminated at the initiative of Rethmann. THE ISSUE TO BE DETERMINED ON THE APPEAL The conclusion of Wilcox CJ that Mr Melide had not proved that there was a termination at the initiative of the employer was not challenged in the appeal. Rather, what was put in issue was whether Mr Melide bore the onus of proving there had been such a termination. Counsel for Mr Melide, Ms J Keys, contended that by operation of s 170EDA(2) of the Act, it was Rethmann who bore the onus of proving that it had not terminated Mr Melide's employment at its initiative. Ms Keys conceded that an applicant for a remedy under Div 3 of Pt VIA of the Act bore the onus of proving that there was a termination of employment at the initiative of the employer in circumstances where there was an issue as to whether the employer had a valid reason for the termination or alleged termination. However, she submitted that in a case where an applicant asserted that a breach of s 170DF of the Act, as it stood before 25 November 1996, had occurred, the onus was on the employer to prove that it had not terminated the employment of the applicant at its initiative. Counsel supported her submissions by reliance upon the judgment of Northrop J in Johns v Gunns Limited (1995) 60 IR 258, 267-268 where his Honour said: "The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. Parliament has, from time to time, devised procedures to transfer to an employer the onus of proving the reason for termination of employment. Thus s 5 of the Conciliation and Arbitration Act 1904 (Cth) made it a criminal offence for an employer to dismiss an employee by reason of specified circumstances. Section 5(4) provided that in proceedings for an offence, if all the relevant facts and circumstances, other than the reason 'set out in the charge as being the reason ... of the ...(dismissal) ... are proved, it lies upon the person charged to prove that ... (the dismissal)... was not activated by that reason ...'. In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257, those provisions and earlier authorities relating to them were discussed at length and in particular at 266-271. I set out a passage appearing at 268 which has equal application to cases where s 170DF(1)(a) of the Act applies: 'The provisions of s 5(4) of the Act cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge.' In the same lengthy passage, at 267 reference is made to averment provisions and what was said by Dixon J in R v Hush; Ex parte Devanny (1932) 48 CLR 487. These views could have equal force in the application of s 170DE(1) and s 170DF(1) of the Act. The section now corresponding to s 5 of the Conciliation and Arbitration Act is s 334 of the Act. The wording is somewhat different but, for relevant purposes, the effect is the same, see Lawrence v Hobart Coaches Pty Ltd (1994) 1 IRCR 92; 57 IR 218. Section 170EDA was inserted into the Act and came into operation on 30 June 1994. Section 170EDA(1) and (2) commences 'If an application under section 170EA alleges ...'. The section was enacted when the Court Rules contained provisions that an application, being the formal document initiating a claim or application for a remedy under s 170EA(1), had either itself or in the accompanying affidavit, to allege the employer's stated reason for termination. Since then, from 14 October 1994, under the Court Rules, no allegation of reason for termination is required to be given. Order 75 describes an application under s 170EA(1) as a 'claim' and Form 132 adopts that terminology. As a result, if a claim for a remedy comes before the Court there is no application containing an allegation of reason for termination. Section 170EDA applies with respect to terminations where the employee alleges there are no valid reasons for the termination under s 170DE(1) as well as to reasons, not necessarily the only reason, prohibited under s 170DF(1). In my opinion, the opening words of s 170EDA(1) are to be construed as meaning that if, upon all of the evidence, the termination is proved, then the employee is entitled to a remedy unless the employer establishes a valid reason or reasons under s 170DE(1). If established, s 170DE(2) has to be applied. If this construction is not accepted, the absence of appropriate forms in the Court Rules could defeat the intention of the Parliament. For similar reasons, the opening words of s 170EDA(2) are to be given the same meaning. However, a very important result follows. Under s 170EDA(2), where that section is to be applied, the termination is taken to have contravened s 170DF(1) unless the employer proves: '(c) The employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or ...'" The above passage from Northrop J's judgment in Johns deals with reverse onus provisions in the Act in respect of proving the reason activating an employer to effect a termination of employment. There is no support in Johns for the proposition that s 170EDA(2) of the Act requires an employer to also prove that it did not terminate the employment of an employee at its initiative. Northrop J was not dealing in Johns with an issue concerning whether or not a termination had occurred at the initiative of the employer. There was no dispute in Johns about that issue. Ms Keys also submitted that there was a material difference between the language of s 170EDA(1) and s 170EDA(2) of the Act. There is no substance, in our opinion, in that contention. Both subsections assume a termination of employment of an employee. Both, on that assumption, deal with the reason for it and each requires proof by the employer of the relevant reason and, in the absence of proof, declares that the termination is taken to have been for the alleged reason. While each sub-section deals with additional matters, the language and structure of each does not suggest there is any material difference in the way each is intended to operate, at least as to the matters we have just discussed. Each operates only when the employee has proved a termination at the initiative of the employer. In any event s 170EDA(2) of the Act, where it refers to "a termination of employment of an employee" or "the termination" must be read as referring to "a termination of employment of an employee at the initiative of an employer" and "the termination at the initiative of an employer" respectively. Section 170CB of the Act provides that an expression in Div 3 of Pt VIA has the same meaning in the Division as it has in the Convention concerning Termination of Employment at the Initiative of the Employer. The Convention was, at the material time, reproduced as Sch 10 of the Act. Article 3 thereof defines "termination" and "termination of employment" to "mean termination at the initiative of the employer". See also Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200, 203. Consequently we do not accept the appellant's submission that s 170EDA(2) of the Act places the onus of proof upon an employer to prove that a termination did not occur at its initiative when an applicant for a remedy under the Division alleges that a breach of s 170DF has occurred. There is nothing exceptional about the proposition that an applicant bears the onus of proving that her or his claim is within jurisdiction. We agree with Wilcox CJ's conclusion that Mr Melide bore the onus of proving that he was terminated at the initiative of Rethmann. As this was the only issue in contention between the parties on the appeal, the appeal must be dismissed. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 13 August 1997 Counsel for the Applicant: Ms J Keys Solicitors for the Applicant: Stormers Solicitors Counsel for the Respondent: Mr P Huntington (directly briefed) Date of Hearing: 4 June 1997 Date of Judgment: 13 August 1997