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. 12 Mr Brown brought to the attention of the Commission a media release and correspondence relating to reforms recently announced by the NSW Government designed to ensure the ongoing integrity and viability of the harness and greyhound racing industry. The new arrangements are intended to apply from 1 July 2009. In the interim, the Respondent is in a caretaker mode. It is noted that the current situation is in relation to routine day to day responsibilities and does not apply to long term decision. I cannot glean anything from the information provided that would impact on what remedy is afforded the Applicant in these proceedings. 13 I accept Mr Brown's submission that the Commission, in considering the practicality of awarding re-instatement or re-employment, ought to move slightly back from the submissions of the parties and objectively consider the practicality of each of those remedies. 14 The Respondent is the only employer in this industry in New South Wales. Without a grant of reinstatement or re-employment, Ms Scott would be unable to follow the career of her choice and particularly one with which she has been associated for many years. 15 The Stewards do have to work closely together in small teams. The Applicant, as a casual, continues to work as a member of those teams. 16 The evidence indicates that Mr Beattie, the Chair of the Harness Stewards, had no problems with the Applicant's performance on the occasions when he had worked with her at meetings. Indeed, there was no evidence before the Commission of any performance issues with the Applicant, setting aside the issue of alleged misconduct which I have dealt with in detail in the decision of 11 February 2009. 17 In all of the above circumstances, and taking into account the detailed examination of the evidence as set out in the decision of 11 February 2009 I have decided to grant the remedy sought on behalf of the Applicant. 18 The Applicant has sought a hearing in relation to a costs application. That matter is listed for hearing and determination at 2.00 pm on 25 February 2009. ORDERS 19 The Greyhound and Harness Racing Regulatory shall re-employ Ms Barbara Scott to another position of permanent full-time harness steward. 20 The Applicant's services shall be deemed not to have been broken by reason of the cessation of her temporary employment. 21 The Respondent is required to pay to the Applicant a sum equivalent to what she would have earned had she not been terminated less any sums that she has earned during the period from the cessation of her temporary employment to the present. 22 The payment shall be made to the Applicant within 14 days of today's date. 23 These orders shall take effect on and from 24 February 2009. I Tabbaa COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.