Griffiths v Freedom Furniture Pty Ltd [2002] FCA 595

FEDERAL COURT OF AUSTRALIA

Griffiths v Freedom Furniture Pty Ltd [2002] FCA 595

INDUSTRIAL LAW – termination of employment – application for order for reinstatement and compensation - whether employment was terminated for reasons which included a proscribed reason, namely participation in trade union activities and participation in proceedings against the employer.

Workplace Relations Act 1996 (Cth), ss 170CH, 170CK(2)(b), 170CK(2)(e), 170CP, 170CQ, 170CR Bowling v General Motors-Holdens Pty Ltd (1975) 8 ALR 197 – referred to Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 - cited Laz v Downer Group Ltd [2000] FCA 1390 – referred to Mooney v W & B Morieson Pty Ltd (1997) 145 ALR 224 – referred to Robertson v South [2002] FCA 1402 – referred to SEAN GRIFFITHS v FREEDOM FURNITURE PTY LTD S 114 of 2001 MANSFIELD J 10 MAY 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.114 OF 2001

BETWEEN: SEAN GRIFFITHS

APPLICANT

AND: FREEDOM FURNITURE PTY LTD

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 10 MAY 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application 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

SOUTH AUSTRALIA DISTRICT REGISTRY S.114 OF 2001

BETWEEN: SEAN GRIFFITHS

APPLICANT

AND: FREEDOM FURNITURE PTY LTD

RESPONDENT

JUDGE: MANSFIELD J

DATE: 10 MAY 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT

introduction 1 Sean Griffiths (Mr Griffiths) commenced employment with the respondent on a casual basis in March 1996. He was employed as a salesperson in the furniture section of the respondent's store at 279 Grote Street, Adelaide. On 27 May 1996 his employment was converted to permanent part-time status. He remained in that employment until 23 May 2001, when his employment was terminated by the respondent. 2 Mr Griffiths applies under s.170CP(1) of the Workplace Relations Act 1996 (Cth) (the Act) for an order under s 170CR(1)(b) of the Act that the respondent reinstate him in his employment, and for an order under s 170CR(1)(c) of the Act that the respondent pay to him by way of compensation such amount as would represent the amount he would have earned in employment with the respondent between 24 May 2001 and the present time had his employment not been terminated. That amount now exceeds six months remuneration. Section 170CR(1)(c) is expressly made subject to subss 170CH(8), (9) and (10), so the compensation which may be ordered is limited to either the total amount of remuneration which Mr Griffiths received in his employment with the respondent during the period of six months immediately prior to 23 May 2001, or $32,000, whichever is the lower. It emerged in the course of final submissions that Mr Griffiths' claim for "compensation" will now substantially exceed that amount. Consequently, he orally sought an order under s 170CR(1)(d) for reimbursement of his salary or earnings for the whole of the period to the present time, an amount well in excess of that which the Court is empowered to order under s 170CR(1)(c) by way of compensation. Section 170CR(1)(d) empowers the Court to make: "Any other order that the Court thinks necessary to remedy the effect of such a termination." Mr Griffiths contended that "back pay" could be so awarded in an unrestricted way under that provision, and that it did not amount to "compensation" as provided in s 170CR(1)(c): Laz v Downer Group Ltd [2000] FCA 1390 at [41] (Laz). The respondent in final submissions did not contest that proposition. It accepted that, if the court were to order Mr Griffiths to be reinstated, it would not be inappropriate under s 170CR(1)(d) to order arrears of pay for the whole of the period Mr Griffiths has not been employed since his termination. 3 Also in final submissions, Mr Griffiths sought an order imposing a penalty upon the respondent under s 170CR(1)(a). It empowers the Court to impose a penalty on an employer of not more than $10,000 if it is satisfied that the employer has contravened a relevant provision of the Act in relation to the termination of employment of an employee. Again, that application was not included in the initial application and was only made orally at the completion of submissions. The respondent did not complain of the application being made in that way, nor contend that the Court had no power to impose a penalty in the circumstances of this matter if it were satisfied of the contravention. 4 The basis of Mr Griffiths' claim is that the respondent contravened s 170CK(2)(b) and (e) of the Act so as to entitle him to the relief sought. Section 170CK(2) relevantly provides: "Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: (a) … (b) trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours; … (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; …" Neither subss (3) nor subss (4) have any relevance to the present circumstances. 5 It is accepted by the respondent that the pre-conditions to the entitlement of Mr Griffiths to apply to the court under s 170CP(1), specified in s 170CP(5)(a) and (b) of the Act, are satisfied. 6 Once the allegation is made that the reason or a reason for the termination of Mr Griffiths' employment was one proscribed by s 170CK(2), the respondent has the onus of proving that the termination was not for the alleged proscribed reason. Section 170CQ provides: "In any proceedings under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies)." The respondent accepts that in practical terms it now bears the onus of proving that its termination of Mr Griffiths' employment was not for a reason or reasons that includes those referred to in s 170CK(2)(b) or (e).