Ward v Saipem Australia Pty Ltd [1999] FCA 527

FEDERAL COURT OF AUSTRALIA

Ward v Saipem Australia Pty Ltd [1999] FCA 527

INDUSTRIAL LAW – application for review – application for compensation arising from alleged unlawful termination dismissed – whether finding of fact that dismissal not for prohibited reason tainted or affected by finding that decision to nominate for transfer was so affected – whether requirement to continue in "normal safe work" required applicant to continue in pre‑transfer position. Workplace Relations Act 1996 (Cth), s 170EA, s 170DF RONALD WARD v SAIPEM AUSTRALIA PTY LTD WI 111 of 1996

R D NICHOLSON J 30 APRIL 1999 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WI 1111 OF 1996

BETWEEN: RONALD WARD

Applicant

AND: SAIPEM AUSTRALIA PTY LTD

Respondent

JUDGE: R D NICHOLSON J

DATE OF ORDER: 30 APRIL 1999

WHERE MADE: PERTH

THE COURT ORDERS THAT: The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WI 1111 OF 1996

BETWEEN: RONALD WARD

Applicant

AND: SAIPEM AUSTRALIA PTY LTD

Respondent

JUDGE: R D NICHOLSON J

DATE: 30 APRIL 1999

PLACE: PERTH

REASONS FOR JUDGMENT 1 R D NICHOLSON J: The applicant seeks review of a decision of a Judicial Registrar dismissing an application under s 170EA of the Industrial Relations Act 1988 (Cth) (now the Workplace Relations Act 1996 (Cth)) ("the Act"). The application was for compensation arising from the alleged unlawful termination of the employment of the applicant by the respondent. Reinstatement was not sought and the Judicial Registrar was satisfied it was not practicable. 2 The applicant does not dispute the findings of fact made by the Judicial Registrar. Rather the applicant's request for review is based upon what is said to be two legal questions described as follows: "(a) Whether the Respondent can use a refusal to comply with a direction which was (at least in part) based upon the Applicant 'acting or having acted in the capacity of, a representative of employees' as a ground to summarily terminate the Applicant's employment. (b) Whether the phrase 'normal … work' in the grievance procedure contained within the employment contract meant the work the Applicant had been undertaking up to the date of the dispute at Spread 2 or work of a similar nature anywhere on the project." The findings of fact which are undisputed are those set out in the reasons of the Judicial Registrar published on 17 February 1988. It is unnecessary to repeat them here so far as they are irrelevant to the contentions now raised. 3 The first matter considered by the Judicial Registrar was whether the respondent had breached s 170DF of the Act, the relevant portions of which are as follows: "170DF(1) An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any once or more of the following reasons. … … d) seeking office as, or acting or having acted in the capacity of, a representative of employees; e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; 4 The approach of the Judicial Registrar to that section was shaped so far as onus of proof was concerned by the provisions of s 170EDA (2) which required the employer (the respondent) to establish that the employment was not terminated for the particular reason or reasons coming within s 170DF. This required the respondent to establish that the applicant's employment was not terminated for reasons that included: "· the fact that [the applicant] had acted in the capacity of a representative of employees in relation to safety issues; or · the fact that [the applicant] had filed a complaint and participated in proceedings against the respondent involving alleged violation of safety laws and regulations." Inter-relationship between termination of an employment and nomination as safety representative 5 The Judicial Registrar concluded the reasons for Mr Mott's decision to nominate the applicant for transfer to Spread 1 did not include the applicant's participation in conciliation proceedings nor the filing of a complaint by him against the respondent. He therefore found there was no factual basis on which s 170DF(1)(e) could apply. 6 In relation to s 170DF(1)(d) he concluded: "[The applicant] had, when he was safety representative, acted as a representative of employees. I am satisfied that this fact alone was not the reason for his dismissal. In my view, it is likely to have been the combination of [the applicant's] actions in his capacity as a safety representative together with his later actions concerning safety issues as an individual employee which contributed to Mr Mott's decision to nominate him for transfer to Spread 1. I accept, in those circumstances, that the reasons for Mr Mott's decision included the fact that [the applicant] had acted in the capacity of a safety representative." The Judicial Registrar then considered the application of the section to the decision to dismiss the applicant. On that issue he concluded: "I am satisfied that the refusal to comply with the direction changed the complexion of the issue, so that [the applicant's] history as a safety representative was not a factor in the decision to dismiss him. I am also satisfied that he would have been dismissed, for example, whether or not he had had a strained relationship with his foreman. I am therefore satisfied that the reasons for Saipem's decision to dismiss [the applicant] did not include any of the reasons prohibited by Section 170DF of the Act."