Saitanis v Penrith City Night Patrol [1996] IRCA 656

DECISION NO:656/96 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Review of Decision of Judicial Registrar - Compensation when reinstated ordered and refused by employee. Industrial Relations Act 1988 s 170EA, s 170EE(1), s 170EE(2), s 170EE(3) No. NI 1241R of 1996 SAITANIS v PENRITH CITY NIGHT PATROL (first respondent), AARDVARK SECURITY SERVICES PTY LTD (second respondent) and FANTIL PTY LTD (third respondent) MOORE J SYDNEY 13 DECEMBER 1996

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 1241R of 1996 ) NEW SOUTH WALES DISTRICT REGISTRY ) BETWEEN: SAITANIS Applicant AND: PENRITH CITY NIGHT PATROL First Respondent AND: AARDVARK SECURITY SERVICES PTY LTD Second Respondent AND: FANTIL PTY LTD Third Respondent JUDGE: Moore J PLACE: Sydney DATE: 13 December 1996 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The respondent pay the applicant the sum of $12,000.00 by way of compensation under section 170EE(2). NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 1241R of 1996 ) NEW SOUTH WALES DISTRICT REGISTRY ) BETWEEN: SAITANIS Applicant AND: PENRITH CITY NIGHT PATROL Respondent AND: AARDVARK SECURITY SERVICES PTY LTD Second Respondent AND: FANTIL PTY LTD Third Respondent JUDGE: Moore J PLACE: Sydney DATE: 13 December 1996 EX TEMPORE REASONS FOR JUDGMENT (revised from transcript) This is a review of an exercise of power by a Judicial Registrar dealing with an application under section 170EA of the Industrial Relations Act 1988 ("the Act"). The review is conducted by the Court of its own motion. It arises in unusual circumstances. The applicant was employed by a security company in July 1994 as a casual security guard. That employment became permanent in October 1994. In late January and early February 1996, a series of events led to the applicant being given a letter on 5 February 1996 purportedly terminating his employment some four days earlier, namely on 1 February 1996. The termination of his employment gave rise to an application under section 170EA lodged on 12 March 1996 on Mr Saitanis' behalf by the Australian Liquor Hospitality Miscellaneous Workers Union ("the Union"). The application was heard by the Judicial Registrar in July of 1996 and on 11 July 1996 the Judicial Registrar made certain orders. The first order was an order requiring the respondent to re-appoint the applicant to a position in which the applicant had been employed immediately before his termination, or to another position on terms and conditions no less favourable to him than those on which he was employed immediately before his termination. A consequential order was made, in terms, that the respondent pay to the applicant all the remuneration that he would have been paid but for his termination. The following day the Union, acting on Mr Saintanis', sent a facsimile to the principal of the respondent indicating that the applicant did not wish to take up employment with the respondent. Some time later, namely 6 September 1996, the matter came back before the Judicial Registrar where an order was made requiring the respondent to pay to the applicant a sum of $14,724.69 by way of outstanding pay. The Judicial Registrar was then aware that the applicant did not wish to avail himself of the order that had earlier been made requiring his re-employment by the respondent. An application was made for an extension of time for the review of the exercise of power by the Judicial Registrar and that application was heard and dismissed by me on 15 November of this year. I then said: "I dismiss the application in the notice of motion filed 9 October 1996 for an extension of time to seek the review of the exercise of powers by the Judicial Registrar in this matter. Further, I will order that the Court of its own motion review the exercise of the powers of the Judicial Registrar insofar as an order was made under section 170EE(1)(b)(ii) ordering that the employer pay to the employee the remuneration lost. In so ordering I intend to exercise the power of the Court under section 170EE(2) to determine what amounts, if any, of compensation should be paid to the applicant having regard to the finding made by the Judicial Registrar that the termination of his employment on 30 January 1996 was in contravention of provisions of the Act. I direct that the respondent in the principal application, that is, Aardvark Security Services Pty Limited, file and serve on or before Friday 6 December 1996 statements of any witnesses proposed to be called setting out the evidence in chief that they will give. I order that the order of the Judicial Registrar of 16 September 1996 be stayed until further order of the Court." In indicating that I would deal with the matter of my own motion, I thought it was more appropriate the question of compensation be considered under section 170EE(3) in circumstances where there was no effective order requiring the reinstatement of the applicant. I followed that course because the considerations arising under section 170EE(3) are different to those arising under section 170EE(1). In referring to section 170EE(3) I am referring to the subsection that identifies matters to be considered though the source of power to order compensation is s 170EE(2). In this case the facts are fairly straightforward. I proceed on the basis that the findings made by the Judicial Registrar as to the circumstances of the termination are correct and I deal only with the further material elicited in the review, which essentially goes to the attempts made by the applicant to seek further employment since his termination in February of 1996. His evidence in that regard is unsatisfactory. When asked by Mr Johnson, appearing for the respondent, to illustrate attempts made by him to gain employment, he initially could not recall any instances of having done so prior to 15 November. However, as a result of a question I asked, and several further questions asked by his counsel, he was able to indicate other instances where employment had been sought. Additionally he pointed to the difficulty of seeking further employment without a reference from his former employer. Nonetheless the evidence as to attempts made by him to obtain other employment since the termination is limited and, in my view, it can be inferred from the scant nature of the evidence that the pursuit of other employment has not been pursued as vigorously as might be expected. Mr Johnson points to the fact that the applicant refused employment after of the reinstatement order was made as evidencing a disinclination on the part of the applicant to resume employment. While that view may be taken of the refusal I must also bear in mind the reasons proffered on his behalf by the Union, namely the circumstances of the termination as I apprehend it, and the view the applicant then had about the company and the way in which the company had treated him. In terms of the figures to be considered in assessing compensation the applicant has provided information that suggests that, but for his termination, he would have earned the figure of $17,575.64. Section 170EE(3) requires the court to have regard to the income lost as a result of the termination, and the language of the section suggests that that figure assumes or should assume importance in determining the compensation to be ordered. The amount of back pay determined by the Judicial Registrar was $14,724.69 and it has been submitted on behalf of the applicant that that might provide an appropriate figure for assessing compensation. However, I am not satisfied that the manner in which the figure of $14,724.69 was calculated was appropriate having regard to the statutory provisions. Nonetheless the applicant has been unemployed since his termination and I am satisfied that regard has to be paid to the considerable financial loss he has suffered as a result of the termination though some allowance, as I earlier indicated, should be paid to the fact that he has not in my view has vigorously sought further employment as might be expected in the circumstances. I propose to award the applicant the sum of $12,000 by way of compensation under section 170EE(2) and I so order. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore. Associate: Alexandra George Dated: 31 January 1997