WOLRIGE & THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS AUSTRALIA v AUSTRALIAN BROADCASTING CORPORATION [1997] IRCA 83

DECISION NO:83/97 CATCHWORDS INDUSTRIAL LAW - UNLAWFUL TERMINATION - Stay of Orders Pending Hearing of Review - No Position Available - Application for Stay Dismissed Workplace Relations Act 1996 s170 Norman v Besser Industries (NT) Pty Ltd (Industrial Relations Court of Australia, Full Court, 1 August 1996, unreported) Anthony Smith and Associates Pty Ltd v Sinclair (1996) 67 IR 240 No. NI 4709R of 1995 ROSS WOLRIGE & THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS AUSTRALIA v AUSTRALIAN BROADCASTING CORPORATION MOORE J SYDNEY 27 FEBRUARY 1997

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 4709R of 1995 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: ROSS WOLRIGE First Applicant AND: THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS AUSTRALIA Second Applicant AND: AUSTRALIAN BROADCASTING CORPORATION Respondent JUDGE: Moore J PLACE: Sydney DATE: 27 February 1997 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application for an order staying the orders of the Judicial Registrar of 29 November 1996 is dismissed. 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 4709R of 1995 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: ROSS WOLRIGE First Applicant AND: THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS AUSTRALIA Second Applicant AND: AUSTRALIAN BROADCASTING CORPORATION Respondent JUDGE: Moore J PLACE: Sydney DATE: 27 February 1997 REASONS FOR JUDGMENT On 29 November 1996 a Judicial Registrar made orders requiring the Australian Broadcasting Corporation ("the Corporation") to reinstate Mr Ross Wolrige by appointing him to a position similar to that in which he had been employed immediately before the termination of his employment. The order was conditional upon Wolrige repaying money paid to him on termination. That and related orders were made in an application brought on Wolrige's behalf by the Association of Professional Engineers, Scientists and Managers Australia ("the Union"), alleging that the termination of Wolrige's employment on 17 May 1996 had been in contravention of provisions of what is now entitled the Workplace Relations Act 1996 ("the Act"). The Corporation has applied for a review of the determination of the Judicial Registrar. The Corporation seeks an order staying the operation of the orders of the Judicial Registrar pending the hearing and determination of the review. This judgment deals with that issue. Whether a stay order should be made involves the exercise of a broad discretion. It is necessary for the Corporation to establish that there is a reason for such an order or it is an appropriate case for such an order: see Norman v Besser Industries (NT) Pty Ltd (Industrial Relations Court of Australia, Full Court, 1 August 1996, unreported). The substance of the Corporation's argument was that the order for reinstatement would require the Corporation to manufacture a job for Wolrige or he would be paid for, in essence, doing no work. The Corporation also submitted that the judgment of the Judicial Registrar manifests an erroneous approach to the question of whether there was a valid reason for the termination, as she had focused on events and circumstances at a time preceding the date of the termination. In order to understand these submissions it is necessary to refer briefly to some of the more important material facts. The reasons for judgment of the Judicial Registrar contain much detail that I will not endeavour to summarise. Wolrige commenced employment with the predecessor of the Corporation on 11 March 1963. He held a variety of positions. In May 1992 he was notified of a pending redundancy in relation to his employment. He was, however, redeployed and worked in the position to which he had been redeployed until May 1994. In either May or July 1994 Wolrige, while an employee of the Corporation, undertook work for a company in which the Corporation had an interest. It had been established to operate a pay television service. That company effectively ceased operations on 28 September 1995. By letter dated 17 July 1995, Wolrige was informed that the company was unable to continue utilising his services and the use of his services would terminate on 1 September 1995. On 6 September 1995, Wolrige was given a letter in which he was informed that he was potentially excess to the staffing requirements of the Corporation. The letter was a formal step in a procedure embodied in the industrial agreement between the Corporation and the Community and Public Sector Union ("CPSU"). It put in train a process which would enable an employee to elect to be retrenched or, alternatively, seek possible retraining and redeployment. It is unnecessary to detail the steps that then must be taken though one matter, the preparation of an action plan, was apparently not undertaken by the Corporation. Partly as a result of the factual complexities of Wolrige's employment, I have found the reasons for judgment of the Judicial Registrar difficult, in some respects, to follow. However the gravamen of her decision appears to be that the Corporation was required to establish that it had a valid reason for the termination of Wolrige's employment and it had failed to do so. In her reasons it is comparatively clear that the Judicial Registrar formed the view that the letter of 6 September 1995 was sent in circumstances where various officers of the Corporation dealing with Wolrige's employment had failed to discuss with him what had been decided well before 6 September 1995, namely, that he would be given a redundancy notice. It cannot be expected that in an application for a stay order, an applicant will be able to make comprehensive submissions as to why the decision founding the order that is sought to be stayed, discloses error. However, it is to be remembered that by operation of s 170EDA(1) an employer bears an onus in establishing that there was a valid reason for a termination if it is based on the operational requirements of the employer, as it is in the present case. There is no suggestion that the conduct of Wolrige warranted the termination of his employment. The decision of the Judicial Registrar was, in essence, that the Corporation had failed to demonstrate that it had a valid reason. I do not have a complete appreciation of all the details of Mr Wolrige's employment and the circumstances leading to his termination. However, I am not presently satisfied that there was material before the Judicial Registrar which established affirmatively the Corporation had a valid reason, having regard to its operational requirements, for the termination of Wolrige's employment. Thus, I am not satisfied, on what was put to me, that the Judicial Registrar erred in deciding that the Corporation had failed to discharge the onus imposed by s 170EDA(1) of the Act. To the extent that the Corporation points to reliance by the Judicial Registrar on events in September 1995 and earlier, rather than events immediately preceding the termination on 17 May 1996, I do not see how this manifests any error. It may be accepted that the industrial agreement with the CPSU contains a comprehensive scheme to deal with potential terminations because of redundancy. However, I presently do not see events preceding the invocation of that scheme as irrelevant to the question of whether the employer had a valid reason for the termination. Situations could well arise where, had the employer conducted itself in a different way, there would have been no need for such a scheme to be invoked. The other principal submission made by the Corporation is that a position will have to be created if the order is given effect to, or Wolrige will be employed and paid to do essentially no work. The fact that an employer might be required to create a position is, in itself, unexceptionable: see Anthony Smith and Associates Pty Ltd v Sinclair (1996) 67 IR 240 at 244. The Full Court said: "We have already set out the terms of s 170EE(1)(a)(ii) of the Act. The subparagraph empowers the Court to require the employer to reinstate the employee by appointing him or her "to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination". This might be a specific position, the availability and suitability of which is revealed by the evidence. On other occasions, the Court will not specify a particular position. Provided that the Court is satisfied that reinstatement is practicable and appropriate, it is open to the Court to make an order in terms of par(a)(ii), leaving it to the employer to choose the position and to comply with the Court's order to provide terms and conditions that are no less favourable than those on which the employee was employed immediately before the termination". If this course is taken, the employer may select an existing position, or he or she may create a new position for the purpose. If the latter, contrary to the submission of counsel for the employer, it will not be to the point that, in the absence of the order, the employer might not have created the position. We appreciate that creation of a new position may occasion a cost, or other disadvantage, to the employer. Where there is evidence that this will be so, that evidence may be relevant on the issues of practicability and appropriateness. But it would be contrary to principle to treat such evidence as necessarily determinative. The occasion for the order arises because the employer has acted unlawfully in terminating the employee's employment. A reinstatement order is akin to an injunction compelling a wrongdoer to restore the position of the innocent party. In considering whether to grant an injunction, a court will always take into account the consequences of an order to the wrongdoer but the existence of adverse consequences has never been regarded as excluding the possibility of an order being made." I was informed that there was a period during Wolrige's employment where he was gainfully employed in circumstances where there had been an expectation that no work was available for him to do. Whether that will be repeated in the period pending the hearing and determination of the review, if no stay order is made, is a matter essentially in hands of both the Corporation and Wolrige. One matter referred to by the Corporation in support of a stay order was that Wolrige may apply for and obtain employment in a position within the Corporation during the period in which he is employed by order of the Court. If that is so and the review is ultimately successful, I see no reason why an order cannot be made dealing with what had occurred indirectly as a result of the order earlier made by the Judicial Registrar, so as to restore the status quo ante. However, what orders should be made in the review is plainly a matter to be considered at the conclusion of the hearing of the review having regard to the evidence and submissions made. The Corporation has offered certain undertakings that would operate in the event that the reinstatement order was stayed. However I am not satisfied that a case has been made out justifying a stay order and the conditions plainly put Wolrige in a less advantageous position than the position he would be in if the orders of the Judicial Registrar are not stayed. In my opinion, a case has not been made out that the orders of the Judicial Registrar should be stayed and I dismiss the application. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore. Associate: Alexandra George Dated: 27 February 1997 APPEARANCES Advocate for the Applicant: Mr I. Taylor Counsel for the Respondent: Mr G.J. Hatcher Solicitor for the Respondent: Blake Dawson Waldron Dates of Hearing: 6 February 1997 Date of Judgment: 27 February 1997