Girvan-Brown, Greeuw, Scott, Watson, Watson, Hynd & Hari v Minister for Education [1997] IRCA 290

INDUSTRIAL RELATIONS COURT OF AUSTRALIA INDUSTRIAL LAW - Alleged UNLAWFUL TERMINATION OF EMPLOYMENT - whether TERMINATION AT INITIATIVE OF EMPLOYER - whether VALID REASON - CONSTITUTIONAL QUESTION - REINSTATEMENT. Industrial Relations Act 1988 (now Workplace Relations Act 1996) - ss 170DC, 170DE, 170EA, 170EE. Commonwealth Constitution - s 51 Judiciary Act 1903 - s 78A Public Sector Management Act 1994 (WA) - s 8. Teachers (Public Sector, Technical and Further Education) Western Australia Interim Award 1995 - cc 7, 8 & 24. Abbott Etherington v Horton Motors Pty Ltd 1995 63 IR 394 Burn v Australian Airlines Limited(1995) 185 CLR 410 Dadey v Edith Cowan University (1996) 70 IR 295. Fisher v Edith Cowan University (1996) 70 IR 206, (1997) 72 IR 464 Fisher v Edith Cowan University (1997) 72 IR 464 Johns v Gunn Limited 1995 60 IR 258 Kerr v Jaroma Pty Ltd 1996 70 IR 469 Mohazab v Dick Smith Electronics Pty Ltd 1995 62 IR 200 Nettlefold v Kym Smoker Pty Ltd1996 69 IR 370 Selvachandran v Peteron Plastics Pty Ltd 1995 622 IR 371 Siagian v Sainel 1994 54 IR 185 State of Victoria and Others -v- The Commonwealth (1996) 138 ALR 129 Westen v Union des Assurances de Paris unreported IRCA 660/96 17 December 1996 Madgwick J Woods v W M Carr Services (Peterborough) Limited [1982] ICR 693 FIONA ELIZABETH GIRVAN-BROWN, JOHN GREEUW, MICHAEL SCOTT, GAYLE WATSON, DENISE MARGARET HYND & RITA HARI -v- MINISTER FOR EDUCATION WI 2591, 2592 of 1995 WI 1009, 1029, 1030 and 1032 of 1996. JUDICIAL REGISTRAR: BOON JR PLACE: PERTH DATE: 7 NOVEMBER 1997

GENERAL DISTRIBUTION IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WI 2591, 2592 of 1995 WI 1009, 1029, 1030 and 1032 of 1996 B E T W E E N: FIONA ELIZABETH GIRVAN-BROWN JOHN GREEUW, MICHAEL SCOTT, GAYLE WATSON, DENISE MARGARET HYND & RITA HARI APPLICANTS A N D: MINISTER FOR EDUCATION RESPONDENT JUDICIAL REGISTRAR: BOON, JR DATE OF ORDER: 7 NOVEMBER 1997 WHERE MADE: PERTH THE COURT ORDERS AND DECLARES THAT: 1. In the case of Michael Scott, the application be dismissed. 2. In the case of Fiona Elizabeth Girvan-Brown, John Greeuw, Gayle May Watson, Denise Margaret Hynd and Rita Hari, there has been a breach of the provisions of section 170DE(1) of the Workplace Relations Act 1996. 3. The respondent within 21 days reinstate the applicants Fiona Elizabeth Girvan-Brown, John Greeuw, Gayle May Watson, Denise Margaret Hynd and Rita Hari on terms no less favourable than those on which they were employed immediately before the termination and pay to each of those applicants the remuneration lost as a result of the unlawful terminations of their employment. 4. There be liberty to apply. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. GENERAL DISTRIBUTION IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WI 2591, 2592 of 1995 WI 1009, 1029, 1030 and 1032 of 1996 B E T W E E N: FIONA ELIZABETH GIRVAN-BROWN JOHN GREEUW, MICHAEL SCOTT, GAYLE WATSON, DENISE MARGARET HYND & RITA HARI - Applicants AND: MINISTER FOR EDUCATION - Respondent JUDICIAL REGISTRAR: BOON, JR DATE: 7 NOVEMBER 1997 PLACE: PERTH REASONS FOR JUDGMENT INTRODUCTION The applicants have applied pursuant to the provisions of the Workplace Relations Act 1996 (C'th) (formerly the Industrial Relations Act 1988) ("the Act"), seeking relief arising out of the alleged unlawful termination of their employment by the respondent. With the exception of Mr Scott, each of the applicants is seeking reinstatement and compensation. Mr Scott is seeking payment of compensation only. The matters were heard together for convenience as they arose out of similar sets of circumstances. These matters have had an unfortunate history including the passage of time since the applications were filed in January of 1996. The matters initially came for hearing before me on 21, 22 and 23 May 1996. It was not possible to complete the hearing of the evidence by 23 May 1996 and the matters were adjourned for further hearing on 1, 2, 3, 4, 5 and 8 July 1996. The matters were then adjourned for the filing of submissions in writing. Lengthy submissions were filed on behalf of the applicants and the respondent in this matter: in fact, the written submissions at that stage came to a total of over several hundred pages. Further submissions were then made verbally before me. By the time the Court was ready to consider this matter, his Honour Madgwick J had handed down his decisions in the matters of Fisher v Edith Cowan University(1996) 70 IR 206 and Dadey v Edith Cowan University(1996) 70 IR 295. The respondent in the matter of Fisher appealed to the Full Court of this Court. There was a directions hearing before the District Registrar at which the parties agreed that it was desirable to wait until the decision of the Full Court was handed down in that matter. The Full Court handed down its decision in Fisher v Edith Cowan University (1997) 72 IR 464 on 2 April 1997. Each party then filed further submissions in relation to the effect of the decision in Fisher on these applications. There were several further directions hearings. In reply to the further submissions on behalf of the applicants, the respondent submitted that the construction or application of the Act as contended for by the applicants constituted an infringement of the implied limitation on the Commonwealth's legislative powers under section 51 of the Commonwealth Constitution, being that the Commonwealth cannot exercise legislative powers which interfere with or curtail the government functions of the State or with its capacity to function as a government. Notices were sent to the Attorney Generals for each State pursuant to section 78A of the Judiciary Act 1903. The Attorneys General for the States of Victoria, Queensland and Western Australia intervened in these proceedings and provided submissions. The unfortunate effects of all of this include not only the fact that there has been a considerable passage of time since the applications were filed, but also that this Court is now in possession of many hundreds of pages of documents (including submissions) in what was intended by Parliament to be a quick and efficient method for applicants to seek redress against employers whom they allege have breached the unlawful termination provisions of the Act. What has been said above is not intended to be a criticism of any party or their counsel. It has simply become impossible to deal with each of the submissions made on behalf of the parties in full in these Reasons for Judgment. BACKGROUND The respondent contends that there was no termination at the initiative of the respondent in any of the cases and says that therefore this Court has no jurisdiction to entertain the applications. The applicants say that there was a termination at the initiative of the respondent. The applicants say further that the provisions of the Actwere breached in a number of ways. In the first place, it is said that there was no valid reason for the termination of any of the applicants as required by the provisions of section 170DE(1) of the Act. Further, the applicants say that their terminations were, in any event, harsh, unjust or unreasonable within the meaning of those words in section 170DE(2) of the Act. Since the applications were filed, the High Court has handed down its decision in the case of State of Victoria and Others -v- The Commonwealth(1996) 138 ALR 129 at 173, which declared subsection (2) of section 170DE to be invalid and this Court will therefore not deal with any of the submissions made in relation to that sub-section. The applicants further say that the respondent breached the provisions of section 170DC of the Act in that none of the applicants was given an opportunity to respond to any allegations against their conduct or performance before their employment was terminated. The respondent says that the provisions of section 170DC do not apply as there were never any allegations against the conduct or performance of any of the applicants. Further, the respondent says that if this Court finds that there were terminations at the initiative of the employer, there was a valid reason for the terminations. The respondent also says that if this Court finds that there was a breach of any of the provisions of the Act, this Court should find that reinstatement of any of the applicants is impracticable in the circumstances, and the appropriate remedy should be an order for compensation. Finally, the respondent has raised the constitutional issue already referred to. Each of the applicants was, prior to December 1995, employed by the respondent as a TAFE lecturer. With the exception of Mr Scott, each of the applicants was employed for successive periods as a "temporary" lecturer for the respondent. Towards the end of 1994, the respondent decided, for reasons which will be dealt with further below, that the positions of all temporary TAFE lecturers should be advertised. Each of the applicants was successful in December 1994 in obtaining a position with the respondent. Each of the applicants was offered a choice between a workplace agreement which would ensure employment for a period of three years, and a one-year "contract" under Award conditions which would ensure employment for a period of one year. Each of the applicants declined to sign a workplace agreement and chose to be employed under the provisions of the Award. In December 1995, the respondent once again advertised the "temporary" lecturer positions which were not occupied by people who had signed workplace agreements. Each of the applicants applied for a position. Each of the applicants was unsuccessful in December 1995 in obtaining a further position as a TAFE lecturer. It is the action of the respondent in deciding to advertise the positions and to appoint people other than the applicants to those positions which the applicants say constitutes a termination at the initiative of the employer. The respondent stresses that it has never had any dissatisfaction with the conduct or performance of the applicants. Rather, the respondent says that the applicants went through a merit selection process and the positions were filled by people who were able to demonstrate greater merit in the selection process than the applicants.