DECISION NO: 155/96 C A T C H W O R D S INDUSTRIAL LAW - Termination of Employment - Reinstatement Industrial Relations Act 1988 ss.170DC, 170DE, 170EA, 170EE CASES: Nicolson and Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233. McKay and Aston Books (unreported) 23 March 1995, NI-1301 of 1994 Williams and Printers Trade Services (1984) 7 IR 82 Laws and London Chronicle Indicator Newspapers Limited (1959) 1 W.L.R. 698. Bostik Australia Pty Ltd and Georgevski (1992) 36 FCR 20 Byrne and Australian Airlines (1994) 120 ALR 274 Byrne and Frew and Australian Airlines (1995) 131 ALR 422 Nicolson and Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199. Johns and Gunn Limited (1995) 60 IR 258 DARRYL JOHN JULIEN -v- PILKINGTON (AUST) LTD No. VI-5442 of 1995 Before: Judicial Registrar Ryan Place: Melbourne Date: 12 April 1996 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-5442 of 1995 B E T W E E N : DARRYL JOHN JULIEN Applicant AND PILKINGTON (AUST) LTD Respondent MINUTES OF ORDERS Judicial Registrar Ryan 12 April 1996 THE COURT ORDERS: 1. I order the Respondent to reinstate the Applicant by appointing him to another position on terms and conditions no less favourable to those in which the employee was employed immediately before the termination. This order is specifically made under S170EE(1)(a)(ii) and no order is made under S170EE(1)(a)(i) because in the interests of workplace harmony it is my view that the Applicant should be re-employed in a position on a shift and in a team other than that on which and in which Mrs Danfield works. 2. I order pursuant to S170EE(1)(b)(i) that the Respondent take steps to maintain the continuity of the Applicant's employment from the date of termination to the date of re-employment. 3. I order pursuant to S170EE(1)(b)(ii) the Respondent to pay the employee (the Applicant) remuneration lost by the employee because of the termination and that such remuneration should be calculated using the method outlined by Northrop J in Johns and Gunns Limited 1995, 60 IR 258 at 272 and 273. 4. Orders are to be made as outlined above. In respect of remuneration under S170EE(1)(b)(ii) the matter is adjourned to enable the parties to see if any amount can be agreed upon. If agreement is reached a further consent order can be made pursuant to Order 35 Rule 10. If no agreement can be reached the parties are directed to file submissions setting out the calculations by which the disputed amounts are reached and the Court will determine the amount to be paid. For that last order I also refer the parties to Johns and Gunn at 60 IR 273 and 274. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-3522 of 1995 B E T W E E N : DARRYL JOHN JULIEN Applicant AND PILKINGTON (AUST) LTD Respondent Before: Judicial Registrar Ryan Place: Melbourne Date: 12 April 1996 EX TEMPORE REASONS FOR JUDGMENT (Revised from Transcript) The Respondent makes glass at premises in Geelong. The Applicant was employed there as a Packer Examiner from June 1988 to October 1995. He claims that the Respondent unlawfully terminated his employment and he seeks reinstatement and compensation. The Respondent's position is straightforward. It amounted to a claim that the conduct of the Applicant on 19 October 1995 was unacceptable and that the Applicant in general terms confirmed the nature of that conduct at interview on 20 October and that as the result he was immediately dismissed. Evidence called by both parties established that on 19 October: 1. the Applicant and Mrs Linda Danfield were working as part of a group of twelve people in which two conveyor belts took glass through a furnace and bent the glass over a mould 2. the workplace was noisy and ear muffs and plugs are issued although it was unclear as to whether workers are required as a matter of practice to use hearing protection 3. a radio was switched on and was operating on high volume 4. Mrs Danfield turned the volume down on the radio and the Applicant turned it up again and this happened several times over a period of some hours and constituted or created a dispute or disagreement or altercation or argument between the two workers 5. after some hours, possibly about 9:00 pm, the Applicant brought the dispute to a head by addressing Mrs Danfield in the following or similar terms - "fuck off you fat mole or fuck off you fucking fat old fat mole or get fucked you fucking fat old mole" 6. Mrs Danfield was distressed at being thus addressed and reported the incident immediately to a shift supervisor (Mr Gino Bisanelli) who in turn reported the incident to Mr Gordon Hutchinson, Site Shift Leader 7. Mr Hutchinson gave evidence that Mrs Danfield was visibly distressed and crying and described the incident to him and that in the presence of Mr Bisanelli and Mr Peter Smith, a union representative, he went through the incident with the Applicant and that the Applicant agreed that he swore at Mrs Danfield in the terms already described and also added that if Mrs Danfield had been a man he would have "biffed" him/her 8. the Applicant seems to have indicated that he might have been prepared to apologise to Mrs Danfield and Mr Hutchinson directed Mr Bisanelli to try and resolve the matter 9. Mr Bisanelli reported back later in the shift to the effect that Mrs Danfield would not accept an apology and wanted "further action" taken against the Applicant and indicated that if the Respondent as employer did not take "further action" she would take action herself. 10. Mr Hutchinson then reported the incident by telephone to Mr William Weeks, the Manufacturing Manager at the Respondent's Geelong premises Evidence called by both parties also established that on 20 October: 1. Mr Weeks investigated the incident as a result of an oral report to him from Mr Hutchinson 2. Mr Weeks had brief preliminary and individual discussions with Mr Hutchinson, Mr Gething, the Human Relations Co-ordinator, Mr Smith, Mrs Danfield and Mrs Brown, a union representative, and by telephone with the Federal Secretary of the union 3. at 3:00 pm Mr Weeks took Mrs Danfield through her version of the incident in the presence of Mrs Brown and Messrs Gething, Hutchinson, Smith and Bisanelli 4. Mrs Danfield and Mrs Brown left and Michael Hatton, a Quality Controller with 22 years experience with the Respondent, joined Messrs Weeks, Gething, Smith and Bisanelli and reported his observations of the incident on 19 October and indicated that he had heard the last few words of an exchange of heated words between the Applicant and Mrs Danfield in which he heard the Applicant conclude the conversation with the words, "fat old mole" 5. Mr Hatton then left the meeting and the Applicant came in and gave his version of the incident again to Messrs Weeks, Gething, Hutchinson, Smith and Bisanelli and admitted that he had sworn at Mrs Danfield and also used the words "fat mole" and confirmed that the evening before he had told Mr Hutchinson that he had said words to the effect that if Mrs Danfield had been a man he would have hit him or "biffed" or "snotted" him 6. Messrs Weeks, Gething, Hutchinson and Smith left the room leaving the Applicant with Mr Bisanelli. In this respect the Court accepts the evidence of the Applicant and Mr Weeks and Mr Gething and Mr Hutchinson and rejects the evidence of Mr Smith who claimed he remained in the room with the Applicant 7. Mr Weeks telephoned the Federal Secretary of the union and sought advice from the union leader and in effect told the Federal Secretary that he intended to terminate the Applicant's employment 8. either before, during or after the telephone discussion with the Federal Secretary, Mr Weeks discussed the incident with Messrs Gething, Hutchinson and Smith. Gething and Hutchinson agreed with Weeks that the appropriate course of action was to terminate the employment of the Applicant. Smith did not express any disagreement with this proposed course of action 9. Messrs Weeks, Gething, Hutchinson and Smith rejoined the Applicant and Mr Bisanelli in the meeting room and Mr Weeks advised the Applicant that he was being dismissed and at the Applicant's request provided him with a letter which is Exhibit R1 and reads as follows: "Dear Mr Julian Confirming our conversation I wish to advise you that your services with Pilkington Australia Limited will be terminated effective 20 October 1995. The grounds for your termination are as follows: threatening behaviour towards a fellow worker intimidation of a fellow worker gross discrimination against a fellow worker your week's wages together with a further week's wages in lieu will be deposited in your nominated bank account. Regards William Weeks Manufacturing Manager" Mrs Danfield and the Applicant and Messrs Weeks, Gething, Hutchinson, Hatton, Smith and Popowicz, a Production Leader, gave evidence in the hearing over the last two days. It is not clear from the evidence exactly what Mr Weeks expressed orally to the Applicant as the grounds for the termination. Mr Gething gave evidence that the grounds in the letter (Exhibit R1) were expressed to the Applicant at the time. Mr Weeks is adamant that he told the Applicant at the final termination meeting on 20 October, and also at the earlier investigating meeting on 20 October, that the incident was a very serious matter. The Court accepts that Mr Weeks did express himself in those terms and that at the termination meeting he told the Applicant that certain things were, to use the words of Mr Weeks, "absolutely intolerable". The Court is less certain exactly what Mr Weeks described as "absolutely intolerable". However, the Court notes and accepts the evidence of Mr Weeks that he took into account in deciding to dismiss the Applicant that the Applicant had, to use the words of Mr Weeks, "specifically threatened another employee, (that is Mrs Danfield) from the psychological stand point", and "the threat of physical violence was absolutely intolerable". Mr Weeks also gave evidence that the Applicant confirmed that he had said on 19 October that if Mrs Danfield had been a man he would have "snotted" him and that statement, and his indication on 20 October that he would have done that but not in the workplace, were a matters of great concern. Mr Weeks admitted that he had assumed that the Applicant made this comment on 19 October in the presence and hearing of Mrs Danfield but that, in his view, it was a serious and threatening and violent comment even if Mrs Danfield was not present. The Court notes that Mrs Danfield was not present at that time and that is clear from the evidence of Mr Hutchinson, Mr Smith, Mrs Danfield and the Applicant. Nevertheless the Court accepts that Mr Weeks generally took the view that the Applicant's conduct amounted to threatening behaviour, intimidations and determination. The conduct so categorised by Mr Weeks included: (i) angrily swearing at Mrs Danfield and calling her a fat mole during the radio incident on 19 October (ii) stating on 19 October and confirming on 20 October that he would have hit her had she been a man (iii) stating on 20 October that he would not have done it (the hitting) in the workplace The Court also accepts that in one way or another Mr Weeks expressed that view orally to the Applicant at the termination meeting as well as in the termination letter (Exhibit R1). The Court does not accept that the comment to Mr Hutchinson that had Mrs Danfield been a man, he, the Applicant, would have hit him/her, constituted a threat to Mrs Danfield or anyone else. The Court does accept that an angry Applicant, on his own admission, swore at Mrs Danfield and described her as a fat mole and that this constituted intimidation and to some degree discrimination and was an entirely unacceptable statement and was capable of constituting a valid reason for termination under S170DE(1). I accept the formulation of valid reason of Justice Northrop in Selvachandran v Peteron Plastics Pty Ltd. I also accept that the Respondent did not breach S170DC and that the Applicant was given an opportunity to respond to the allegations of misconduct. I accept and rely on the oft quoted formulation of S170DC in Nicolson and Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 at 243. I do not yet accept that interpretation of that formulation which requires advice to an employee that if his/her job is in jeopardy to avoid a breach of S170DC (see McKay and Aston Books (unreported) 23 March 1995, NI-1301 of 1994, Patch JR at 5). Having said that I do accept, as in McKay at 6, that failure to advise a job is in jeopardy can be very relevant to whether a termination is harsh, unjust or unreasonable pursuant to S170DE(2). The Court is not satisfied that the conduct warranted summary termination or dismissal. The Respondent Pilkington Australia Limited is a part of the international Pilkington Group and is linked to the English parent company Pilkington PLC. The Respondent relies in part on an English Pilkington publication or statement on the standards of business conduct entitled, "Pilkington Corporate Ethics April 1995". It is Exhibit R2. This publication seems to have been circulated to certain points in the Geelong plant in late April and early May 1995. It was not brought to the specific attention of individual employees in the plant. The Applicant swore that he had not seen or read Exhibit R2. Page 9 of that statement (Exhibit R3) includes the following: "all employees must adhere to the group policies which prohibit discrimination on the basis of race, colour, creed, age, sex, national origin, disability or other status protected by law. Harassment of employees based on race, sex or personal characteristics and retaliation against employees who have bona fide complaints about such behaviour will not be tolerated neither will the abuse of the dignity of any employee through insulting or degrading remarks or conduct" Counsel for the Respondent tendered as Exhibit R5 a Personnel Policies and Agreement Manual. The preamble to the manual reads as follows: "This manual contains company policy on a number of day to day administration matters which are detailed in order to achieve uniformity in application across the Geelong site. The policies in this document apply to production employees and have been explained to the representatives and officials of the Federated Furnishing Trades Society Union who are aware of their content and understand the need for a uniform application of such policy." Counsel for the Applicant tendered as Exhibit A1 an unamended copy of pages 9 and 10 of the manual. The Court notes that pages 9 and 10 contain minor amendments but they are not of significance. The first six paragraphs of page 9 of Exhibit A1 read as follows: "Discipline procedure a) An employee will be given a first level verbal warning in the presence of a steward and recorded for inclusion in his/her personal file. b) A second level warning will follow for any further breach of discipline which will be given formally in the presence of a shop steward and senior production supervisor. The content of the warning will be made in writing and a copy given to the employee, steward and filed in his/her personal file. The written warning should give details of the breach of discipline to the level of the warning and future work standards requirement. c) The third level or final warning will be given after a further breach of discipline. The warning must be given in the presence of the Senior Steward and involve the Production Manager. Advice must be given to the Divisional Personnel Manager who will ensure the union officials are advised. The employee must receive written confirmation of the warning showing the reason and stating that it is a final warning and that any further breach of discipline will result in termination. There are some breaches of discipline which will require an immediate second or third final level warning such as serious breach of duty, misconduct towards supervisor etc. Other misdemeanours require dismissal. These include refusal of duty, fighting, sleeping on a shift, stealing, wilful damage of company property etc. While the Respondent does not concede that it is necessary to rely on the manual or on page 9 thereof, the Respondent asserts and, in particular Mr Weeks asserts, that the Applicant's conduct on 19 and 20 October constituted misdemeanours which warranted summary dismissal. In other words, the Respondent asserts that like refusal of duty, fighting, sleeping on shift, stealing and wilful damage of company property, the Applicant's conduct on 19 and 20 October warranted summary dismissal. Counsel for the Applicant rejects that proposition and cited in support Williams and Printers Trade Services (1984) 7 IR 82 at 84 per Toohey J and Laws and London Chronicle Indicator Newspapers Limited (1959) 1 W.L.R. 698 at 700. In Williams at 84 Toohey J stated: "some early decisions approach the matter of summary dismissal on the basis that the term misconduct subsumed all relevant ground. The prevailing view is that there are a number of independent grounds but in either case the underlying principle is the same. The Courts have drawn on the analogy of conditions and warranties in commercial contract and have required that conduct justifying summary dismissal be such as to strike at the basis of the relationship between employer and employee. The statement from Laws and London Chronicle on which Counsel for the Applicant relies is at 700 and is as follows: "the question must be if summary dismissal is claimed to be justified whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service." Counsel for the Respondent rightly points out that Williams and Laws were cases of wrongful dismissal. They were not statutory claims of unlawful termination of employment under Division 3 of Part VI of the Industrial Relations Act 1988. However, Counsel for the Respondent conceded, and in my view rightly conceded, that cases like Williams and Laws were not without some persuasive assistance and influence in assessing whether the conduct of the Applicant was such as warranted summary termination. In the circumstances of this case I doubt that the conduct warranted summary termination but I prefer to approach the issue as part of the broader issue of S170DE(2) and here the onus is on the Applicant to demonstrate that a termination otherwise for valid reason is harsh, unjust or unreasonable. Counsel for the Applicant sought to rely in part, but only in part, on statements of Justice Gray in Bostik Australia Pty Ltd and Georgevski (1992) 36 FCR 20 at 35 and Byrne and Australian Airlines (1994) 120 ALR 274 at 329. Before going to those cases and to the more recent High Court judgment in Byrne and Frew and Australian Airlines (1995) 131 ALR 422, Counsel for the Applicant asserts (in my view correctly) that the Applicant was never told his job was in jeopardy but rather at the second meeting on 20 October he was told that he was being dismissed and then at his request he was given a letter which purported to set out the reasons for the termination. I have already found that the Applicant was given an opportunity to respond to the allegations about his conduct on 19 October and he responded by admitting that he spoke as he did to Mrs Danfield and he conceded with hindsight yesterday that he should not have said what he said. He also agreed that, at the first meeting on 20 October, he had said on 19 October that he would have hit Mrs Danfield "had she been a man". However, the Respondent never considered less draconian and final options like a warning, a final warning, a suspension or a change of shift for the Applicant or any combination of such options. The Applicant was given no opportunity to suggest an alternative option and was given no warning his job was in jeopardy. There is no evidence that the Respondent gave any thought to the Applicant's good record, (that is good apart from his relationship with Mrs Danfield), or his length of service or his personal circumstances. There is a suggestion in evidence led by the Respondent that the history of conflict between the Applicant and Mrs Danfield and possible harassment of Mrs Danfield by the Applicant in February 1994 was a consideration in the termination. There is a reference to possible harassment in Mr Popowicz's diary note of 10 February (Exhibit R6) and a claim by Mr Gething, in his file note prepared after the termination on 20 October (Exhibit R4), that the Applicant had admitted he had harassed her (that is Mrs Danfield) in the past and had not spoken to her for two years. However, Mr Weeks was adamant that the termination was based on the conduct of 19 and 20 October and not on past conduct and the Applicant denied he had harassed the Mrs Danfield in the past although he conceded that he virtually never spoke to her after 11 February 1994 except on essential work matters. He also conceded that after advice from Mr Popowicz on 11 February 1994 he feared the possibility of an harassment claim and possible termination on that ground. However, not only did Mr Weeks say and his Counsel assert that the termination was based only on the conduct of 19 and 20 October, there is no evidence earlier complaints by Mrs Danfield against the Applicant were ever put to the Applicant on the 19 or 20 October except in the sense that on the 19 October Mr Hutchinson seems to have said, "we have to sort this out", (that is the strained relationship between the Applicant and Mrs Danfield). The behaviour of the Applicant and his comment to Mrs Danfield when the altercation came to a head was quite unacceptable but it was a comment made in anger and in the heat of the moment. Mrs Danfield's behaviour over several hours was provoking and immature in continuing to turn the radio down without comment just as the Applicant's behaviour was provoking and immature in continuing to turn the radio up without comment. Neither party sought to resolve an essentially minor matter in a sensible and adult fashion. Neither sought to communicate on the issue with each other or with their work mates or with the supervisor until Mrs Danfield went to the supervisor after the altercation. Before turning to Bostik and Byrne and Frew, I will say that I rely not on those two cases as cited by Counsel for the Applicant but on the later judgment of McHugh and Gummow JJ in the High Court Appeal Judgment. Having said that, I note the following comments of Gray J in Bostik and in Byrne and Frew and consider they are as germane now as they were then. In Bostik at 35 Justice Gray states (referring to a harsh, unjust and unreasonable award clause) "although the procedure requirements for clause will vary according to the circumstances .... an employer genuinely investigating an allegation of misconduct is required to carry out a proper investigation. The employer is required to ascertain whether there are any mitigating factors either associated with the alleged ground for dismissal or arising from the employee's past record and future prospects". In Byrne and Australian Airlines at 329 Justice Gray stated: "the refusal to hear the appellants on reasons why they ought not to be dismissed involved a denial of natural justice. Even if a person is caught in the act of some gross misconduct there might be mitigating factors which would lead a reasonable employer not to dismiss. Procedural fairness required that the appellants be given a fair hearing on any question of penalty." Turning now to the High Court judgment in Byrne and Frew (1995) 131 ALR 422 and turning to the judgment of Justices McHugh and Gummow I note the following at 461: "indications in the award of the desire to provide a measure of security from arbitrary dismissal and on the other hand an acknowledgement that protection is confined within provisions which are predicated on the possibility of a fair dismissal" I note at 462 that referring to procedural and substantive unfairness their Honours said: "the distinction between procedure and substance is illusive and is unhelpful and contrary to the tenor of the award to introduce it into Clause 11A" (Clause 11A was an award provision in relation to harsh, unjust and unreasonable termination of employment). Presumably their Honours might express similar views about the introduction of the distinction into the harsh, unjust and unreasonable provision of the Industrial Relations Act, (that is S170DE(2)) although it should be noted that they said at 463: "It should be emphasised that the present task is to construe the award and that nothing now said necessarily determines the meaning of the phrase 'harsh, unjust or unreasonable' in any other setting" For my part I adopt the classic formulation of harsh, unjust and unreasonable by Justices Shepherd and Heerey in Bostik Australia Pty Ltd and Georgevski (No 1) (1992) 36 FCR 20 at 28: "These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's conduct." At 463 their Honours point out that it is necessary to look at the whole of the relevant circumstances and at line 35 that it was an error to reverse that ultimate holding purely for reasons associated with what are identified as procedural defects in the steps taken by the Respondent to dismiss the appellants. However, at lines 38 to 40 on 463 they state: "Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable." The important distinction between what is before me and what was before the High Court in Byrne is that in Byrne Justices McHugh and Gummow found that there was an error in determining the issue of harsh, unjust and unreasonable termination without regard to the very material circumstances of the finding of the primary judge as to the complicity of the appellant in pilfering. I have to consider whether the decision to dismiss the Applicant was viewed objectively harsh, unjust and unreasonable. I have considered carefully the circumstances that led to the decision to dismiss and the effect of that decision on the employer. I have considered the effect of a reversal of that decision on the employer. I have considered the effect of the decision on the Applicant and the gravity of the Applicant's conduct. While that conduct was quite unacceptable and was conduct which I found could constitute a valid reason for termination under S170DE(1), the conduct took place in circumstances, and the termination took place in circumstances, which I find did not justify summary dismissal. I find that the conduct while reprehensible did not strike at the heart of the employer/employee relationship and that the Applicant by his conduct did not disregard essential conditions of the contract of employment. More importantly I find that the termination was harsh and unreasonable in all the circumstances. I have reached that conclusion having taken account of the various circumstances outlined in this judgment including that : 1. the Applicant was never told his employment was in jeopardy 2. the Respondent did not consider any other options such as suspension, transfer of shift or one or more warnings or an immediate final warning or any combination of those options 3. the Applicant was given no opportunity to plead any other option 4. the Respondent does not appear to have considered the Applicant's work record which apart from suggestions of a poor relationship with Mrs Danfield and one other incident briefly mentioned in evidence appears to have been one which was at least average if not good 5. the Respondent does not appear to have considered the Applicant's service with the Respondent or the effect of a termination on him 6. the behaviour of both the Applicant and Mrs Danfield in respect of the radio on 19 October was immature and provoking and as described earlier in this judgment reflects credit on neither of the participants. REMEDY Having found the termination harsh and unreasonable I turn to the primary remedy. I find under S170EE(2) that reinstatement is not impractical or impracticable and I adopt the test expounded by the Chief Justice in Nicolson and Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199. ORDERS 1. I order the Respondent to reinstate the Applicant by appointing him to another position on terms and conditions no less favourable to those in which the employee was employed immediately before the termination. This order is specifically made under S170EE(1)(a)(ii) and no order is made under S170EE(1)(a)(i) because in the interests of workplace harmony it is my view that the Applicant should be re-employed in a position on a shift and in a team other than that on which and in which Mrs Danfield works. 2. I order pursuant to S170EE(1)(b)(i) that the Respondent take steps to maintain the continuity of the Applicant's employment from the date of termination to the date of re-employment. 3. I order pursuant to S170EE(1)(b)(ii) the Respondent to pay the employee (the Applicant) remuneration lost by the employee because of the termination and that such remuneration should be calculated using the method outlined by Northrop J in Johns and Gunns Limited 1995, 60 IR 258 at 272 and 273. 4. Orders are to be made as outlined above. In respect of remuneration under S170EE(1)(b)(ii) the matter is adjourned to enable the parties to see if any amount can be agreed upon. If agreement is reached a further consent order can be made pursuant to Order 35 Rule 10. If no agreement can be reached the parties are directed to file submissions setting out the calculations by which the disputed amounts are reached and the Court will determine the amount to be paid. For that last order I also refer the parties to Johns and Gunn at 60 IR 273 and 274. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding 13 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan. Associate: Dated: 26 April 1996 Solicitors for the Applicant: Mr S Stuckey Counsel for the Applicant: Price Higgins Solicitors for the Respondent: Freehill Hollingdale & Page Counsel for the Respondent: Mr P Burchardt Date of hearing: 10 and 11 April 1996 Date of judgment: 12 April 1996