678/96, TERMINATION OF EMPLOYMENT - Claim covered by decision in Byrne v Australia Airlines - Claim dismissed - Costs. Industrial Relations Act 1988, s 347 WAYNE GOOLEY v WESTPAC BANKING CORPORATION No. NI.102 of 1994 CORAM: PLACE: DATE: WILCOX CJ SYDNEY 10 OCTOBER 1996 a IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No. NEW SOUTH WALES DISTRICT REGISTRY) CORAM: PLACE: DATE: THE COURT Note: NI.102 of 1994 BETWEEN: WAYNE GOOLEY Applicant AND: WESTPAC CORPORATION Respondent WILCOX CJ SYDNEY 10 OCTOBER 1996 MINUTES OF ORDER ORDERS THAT: The application be dismissed. Settlement and entry of orders is dealt with Order 36 of the Industrial Relations Court Rules. BANKING in IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No. NI.102 of 1994 NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: WAYNE GOOLEY Applicant AND: WESTPAC BANKING CORPORATION Respondent CORAM: WILCOX CJ PLACE: SYDNEY DATE: 10 OCTOBER 1996 REASONS FOR JUDGMENT WILCOX CJ: On 3 April 1995 I delivered reasons for judgment in this matter. At that time there was a pending appeal to the High Court of Australia against the decision of the Full Court of the Federal Court in Byrne v Australian Airlines Limited (1994) 47 FCR 300. It was obvious that the outcome of that appeal would be critical to the applicant's prospect of obtaining damages for the respondent's breach of the award under which he was employed, the Bank Officials (Federal) (1963) Award. Accordingly, I refrained from making any final orders on 3 April. I stood the matter over for mention on 1 December. The High Court delivered judgment on 11 October 1995. The case is reported at 131 ALR 422. The High Court upheld the Full Court's majority decision that an employee is - 2- not entitled to recover damages from an employer in respect of the employer's breach of an award. As I had indicated on 3 April 1995 that the applicant's defamation claim must fail, I assumed that the applicant would accept that I had no alternative other than to dismiss his application. However, on 1 December the applicant's solicitor sought the opportunity to put a submission in favour of a different order. I agreed to this and directed that written submissions be lodged. These were delayed but have now been received and considered. The applicant's submission commences with an assertion that my findings: "show that the plaintiff is entitled to four weeks wages because he did not receive the four weeks period of notice specified in _ the relevant Bank Officers Award to which he would have been entitled had not the respondent summarily and wrongfully dismissed him." In those circumstances, it is argued, "the applicant has succeeded in the proceedings and is therefore entitled, under the ordinary rules, to his costs". The submission then refers to s 347 of the Industrial Relations Act 1988 and argues, in effect, that this section operates only to limit the Court's power to award costs against an applicant; it is said that it does not prevent the Court awarding costs to an applicant. This is a novel proposition which I find difficult to reconcile with the wording of s 347. But I do not need to determine the matter because the argument fails at the outset. - 3 - It is true that the applicant persuaded me that he was dismissed by the respondent in contravention of the award, both because the dismissal was "harsh, unjust or unreasonable" within the meaning of Appendix C of the award and because it failed to comply with the requirement in cl 37(d) (i) for four weeks' notice. But that does not mean that applicant succeeded in his claim. The claim for four weeks' wages referred to in the submission depended upon arguments that this term was imported from the award into the contract of employment or, alternatively, should be implied as a matter of presumed intention. Those propositions are inconsistent with what was said in Byrne at 425-429 and 441-452. The applicant succeeded on the factual issues raised by the pleadings, except in relation to the defamation claim, but he failed to establish the legal causes of action upon which he relied. As no cause of action was established, there is no basis for a costs order in favour of the applicant. Similarly, there is no basis for an award of damages for mental distress, as claimed by the applicant. There are legal issues about the recoverability of such damages even where (unlike the present case) a relevant cause of action is established. I say nothing about those issues. It is better to defer discussion of them until a case arises where they have to be determined. In this case, in the absence of a successful cause of action, there is obviously no foundation for an award of damages of any sort. a a ee a ek er at T aaid that: - 4 - The respondent counter-attacks by urging me to reconsider the opinion I expressed in my earlier reasons about the costs undertaking given by the applicant in connection with the defamation claim. I said that: "Although that claim fails, the joinder of the defamation claim did not extend the hearing or increase costs. Consequently, it is not appropriate for me to make any order pursuant to the undertaking." That was a considered statement. I do not intend to depart from it. It is time to dispose of this litigation. Having regard to everything stated in my earlier reasons, the High Court decision in Byrne and what is said above, the appropriate order is that the application be dismissed. I will so order. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of his Honour Chief Justice Wilcox. Associate: ZLhh. Ansta— Dated: 10 October 1996 APPEA CES Counsel for the Applicant: B R McClintock Solicitor for the Applicant: Gadens Ridgeway Counsel for the Respondent: 'J J Fernon Solicitor for the Respondent: Freehill Hollingdale & Page The matter was dealt with by way of written submission filed by the parties.