FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - review of decision of judicial registrar - judicial registrar ordered reinstatement and compensation - orders quashed on review - whether employee was reinstated according to the terms of the judicial registrar's order - whether compensation should be repaid to the respondent employer Kondis v State Transport Authority (1984) 154 CLR 672 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 MELANIE THOMPSON v BOYNE SMELTERS LTD QI 1036 of 1996 MADGWICK J SYDNEY (HEARD IN BRISBANE) 27 FEBRUARY 1998 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY QI 1036 of 1996 BETWEEN: Melanie Fleur Thompson Applicant AND: Boyne Smelters Ltd Respondent JUDGE(S): MADGWICK J DATE OF ORDER: 27 FEBRUARY 1998 WHERE MADE: SYDNEY (HEARD IN BRISBANE) MINUTES OF ORDER THE COURT ORDERS THAT: 1. The applicant pay to the respondent the sum of FOURTEEN THOUSAND SIX HUNDRED AND SEVENTY NINE DOLLARS AND FIFTY NINE CENTS ($14,679.59). IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY QI 1036 of 1996 BETWEEN: Melanie Fleur Thompson Applicant AND: Boyne Smelters Ltd Respondent JUDGE(S): MADGWICK J DATE: 27 FEBRUARY 1998 PLACE: SYDNEY (HEARD IN BRISBANE) REASONS FOR JUDGMENT HIS HONOUR: History of proceedings On 16 February 1996, the applicant, Ms Thompson, filed an application seeking reinstatement and/or compensation on account of allegedly unlawful termination of her employment with the respondent company. The matter was heard before a Judicial Registrar on 29 and 30 July 1996, and, for reasons given on 19 August 1996, the Judicial Registrar held that the respondent did not have a valid reason for terminating Ms Thompson's employment. The Judicial Registrar ordered that the company reinstate Ms Thompson "by appointing her to the position in which she was employed immediately before the said termination, or appointing her to another position on terms and conditions no less favourable than those on which [she] was employed immediately before the termination date". The Judicial Registrar also ordered that within 14 days, the respondent was to pay Ms Thompson the amount she would have earned if she had continued in that employment. On 3 September 1996 Ms Thompson returned to work, and received an amount of $14,679.59 for lost wages. Also on that day, Ms Smith, the Manager of Metal Products in the company, notified Ms Thompson that she would be rostered for day work, which paid $255 less per week than the continuous shift work that Ms Thompson had previously worked. Ms Thompson performed the day work until 3 April 1997 when I heard and determined the respondent's application for a review. I upheld the respondent's application for review, quashed the Judicial Registrar's orders and dismissed Ms Thompson's application for reinstatement. The evidence was somewhat different and I took an adverse view of Ms Thompson's credit. Subsequent to that decision, the respondent filed a Notice of Motion on 2 May 1997, seeking an order that Ms Thompson repay the compensation paid to her. Ms Thompson filed a Notice of Motion on 9 May 1997, seeking the difference between the wages she received after being reinstated to day work and the amount she would have received if she had been reinstated to continuous shift work. These Notices of Motion are the subject of this decision. The competing submissions The applicant submitted that the company had not put the Judicial Registrar's order into effect, and had candidly admitted that it had disregarded his finding of fact, that is, the Judicial Registrar had not felt able positively to find that Ms Thompson had smoked marijuana at work; however the company's subsequent action of transferring her to day work was predicated on the belief that she had so smoked. It was also argued on behalf of Ms Thompson that she should not have to pay back the money because it would be a form of "double punishment". A stay application made by the company was rejected by the Judicial Registrar, so Ms Thompson would have expected that she would be successful. It was further submitted that she is entitled to the benefit of the Judicial Registrar's order because she was disadvantaged for a period of time from the termination to the order. As a matter of fairness, she should not be expected to pay the money back, particularly where the review turned upon the credibility of witnesses. The company submitted that, in accordance with the order of the Judicial Registrar, the applicant had been reinstated to the position she held immediately before her termination as operator/maintainer SM4, Roster 12. However, Ms Thompson's employment in that position was subject to the terms of the Boyne Smelters Limited Award 1992 ("the award"). Under the award, the employer was entitled to transfer employees from shift work to day work as required by the company (cl 5(d)(iii)(7)). The company submitted that its reason for Ms Thompson's transfer was safety, predicated on the unacceptable risk of danger from Ms Thompson possibly getting herself into a befuddled state (Ms Thompson had admitted in evidence that away from work she was a heavy marijuana smoker). The company pointed to the fact that it is under both statutory and common law duties to ensure the safety of the workplace. The company argued that it was entitled to take action whether or not it was proven that she was a smoker at work: see Kondis v State Transport Authority (1984) 154 CLR 672. The company's position was that it was not in breach of the spirit of the Judicial Registrar's orders, provided that the company's actions were bona fide (there being no suggestion otherwise) and not in opposition to the Judicial Registrar's findings. The decision to transfer Ms Thompson to day work was no less bona fide because it was made immediately after Ms Thompson's reinstatement. The applicant was not, it was contended, entitled to be permanently employed on the shift of her choosing. The company also submitted that the applicant was in breach of an implied term not to destroy the trust between employer and employee: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. Ms Thompson had represented on several occasions that she had used cannabis at work. The company believed that it could not be seen to take no action when Ms Thompson was telling fellow workers that she was "stoned" at work. The company's other submissions, in substance, were that the applicant's Notice of Motion was misconceived, in that it was an attempt to obtain a benefit from an order that has already been set aside, and that the applicant was seeking payment for services not actually performed. Conclusions It was conceded by counsel for Ms Thompson that the consequence of his not cross-examining Ms Smith is that the Court should accept that the company had acted bona fide in doing what it did. Ms Thompson's Notice of Motion does not allege a contempt of the Court by the respondent. Her case is simply that, not having been properly reinstated, an order should be made that she be paid the amounts claimed in order that what the Judicial Registrar had ordered for her benefit might properly be put into effect. While there is, if that matter stood alone, something to be said for the applicant's approach as a matter of general principle, it is not necessary that I finally determine it here. Certainly, however, employers should not be encouraged to think that the Court is powerless if reinstatement orders are undermined. Reinstatement means real and substantial reinstatement and whether there has been reinstatement after such an order is simply a question of fact. The Court has ample power to make supplementary orders to effectuate its primary order of relief. However, the Judicial Registrar's orders did not survive the review application, nor were such orders of a character that rights under them could subsist beyond the reversal of the orders upon review. A different case can of course be envisaged; sometimes, for example, interim orders are of a character such that some rights of the parties in the interim period are determined once and for all, notwithstanding that the final approach of the Court is different from that taken on the application for interim relief. But the present case is in no sense a case of that kind. Hence, if an order was made in Ms Thompson's favour, the consequence would be that the respondent would also be entitled, following its success on the review, to have a supplementary order reversing such an order. An order in her favour would, therefore, be futile. I would therefore decline to make it, assuming that she had otherwise made out a case for it. I turn to the respondent company's application. Likewise, Ms Thompson's success before the Judicial Registrar was not of a kind which entitled her to keep the benefits of the Judicial Registrar's orders when such orders were reversed on the review. It seems to me therefore that the respondent is entitled to the orders it seeks. I will order accordingly. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick Associate: Dated: Counsel for the Applicant: G Rhead Solicitor for the Applicant: C A Sciacca and Associates Counsel for the Respondent: J Jerrard QC Solicitor for the Respondent: Freehill Hollingdale and Page Date of Hearing: 9 May 1997 Date of Judgment: 27 February 1998