Barbara Scott & Greyhound & Harness Racing Regulatory Authority [2009] NSWIRComm 1009

Industrial Relations Commission of New South Wales

CITATION: Barbara Scott & Greyhound & Harness Racing Regulatory Authority [2009] NSWIRComm 1009

APPLICANT Barbara Scott PARTIES: RESPONDENT Greyhound & Harness Racing Regulatory Authority

FILE NUMBER(S): 820 of 2008

CORAM: Tabbaa C

Remedies: Re-instatement CATCHWORDS: Re-employment compensation available work

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 24.2.09

DATE OF JUDGMENT: 24 February 2009

APPLICANT

John Murphy of Counsel

Brooke Pendlebury LEGAL REPRESENTATIVES: Pendlebury Workplace Law

RESPONDENT

Paul Brown Baker & McKenzie, Solicitors

DECISION:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Tabbaa C 24 February 2009

Matter No. IRC 820 of 2008 BARBARA SCOTT and GREYHOUND & HARNESS RACING REGULATORY AUTHORITY Application by Barbara Scott re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ............................................................................................................................ D E C I S I O N

1 The Commission, as currently constituted, handed down its decision in relation to the merits of the application brought by Ms Barbara Scott for relief relating to her dismissal by the Greyhound & Harness Racing Regulatory Authority on 8 May 2008 when her temporary employment as a harness racing steward ceased and she reverted to her casual status. 2 In finding in favour of the Applicant and declaring that the circumstances surrounding her dismissal were harsh, unreasonable and unjust, the Commission made certain findings, both in favour of, and against the Applicant. 3 No remedy was decided on that occasion as the parties had asked, at the conclusion of the hearing, to be provided with an opportunity to address the Commission on the appropriate form of relief to be awarded if the Commission, in its final analysis, found in favour of the Applicant in relation to the dismissal claim. 4 The parties advised that attempts to conciliate the issue of an appropriate remedy had been unsuccessful. The Applicant, it was not disputed, had from the outset made her position quite clear and did not resile from it - she was seeking re-instatement as a permanent full time harness steward. The Respondent was prepared to consider a remedy which did not include re-instatement or re-employment. 5 Mr Murphy, of Counsel, submitted on behalf of the Applicant that, in a case such as this, where the Applicant is seeking re-instatement, then the appropriate procedure to be followed is for an examination to be made of the practicality of awarding that primary relief to the Applicant. If that remedy is impracticable, then the Commission would be required to consider the second remedy of re-employment before moving to the third category of monetary compensation. 6 The remedies are certainly considered in that order when an Applicant is seeking the primary remedy. As Mr Brown pointed out, there are numerous applicants who, for various reasons, opt for monetary compensation as a remedy and it would be totally unnecessary to consider the other options. 7 Mr Murphy cited authorities for the proposition that the word "available" in relation to a position with an employer does not mean "vacant" otherwise it would defeat the purpose of having a remedy such as re-employment. 8 Mr Brown had previously submitted, that the Respondent is entitled to form the view as to how many stewards it requires. Apart from the extra resources and pay that would be required to fund an additional steward, there was the issue of the trainee steward in its employment. Mr Brown is totally correct in that regard. However, the Respondent has to balance that right with its obligation not to treat any employees unfairly, unjustly or unreasonably. 9 In any event, the Respondent's witnesses were not able to convince the Commission that there was no requirement for the Applicant in a full-time harness racing position. In the decision of 11 February, the Commission noted that Mr Coughlan's evidence had been very unclear in relation to the number of harness stewards in the employ of the Respondent. His evidence in that regard, as it turned out, was not very accurate. He was not only wrong in relation to the continued employment of Mr Worboys, he was ducking and weaving throughout his cross-examination in relation to Mr Clarke who was on a temporary traineeship. 10 For her part, Ms Johnson adopted the position that if the Applicant was reinstated, another employee had to be dismissed to make room for her. As Murphy pointed out, that is not a matter of concern for the Commission in arriving at an appropriate remedy. 11 If that was a consideration in unfair dismissal matters, then the remedies of reinstatement and re-employment would be rendered useless.