Industrial Relations Commission of New South Wales CITATION: Baker v. Australian Workers' Union [2005] NSWIRComm 1225 APPLICANT Warren Baker PARTIES: RESPONDENT Australian Workers' Union FILE NUMBER(S): 5916 of 2005 CORAM: Connor C termination of employment - alleged threat of dismissal - alleged abuse of process CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Bon McArthur Pty Limited Dispute Case - unreported Castlemaine Toohey Limited v. State of South Australia (1986) 161 CLR 148 CASES CITED: Hill v. Director-General of the Department of Education (1998) 85 IR 201 HEARING DATES: 01/16/2005 EXTEMPORE JUDGMENT DATE : 12/16/2005 APPLICANT Anthony Slevin Slater and Gordon, Lawyers LEGAL REPRESENTATIVES: RESPONDENT Richard Tripodi DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 16 December, 2005 Matter No IRC 5916 of 2005 Warren Baker and the Australian Workers' Union Application under S.84 of the Industrial Relations Act, 1996 INTERLOCUTORY DECISION [2005] NSWIRComm 1225 1 Mr Warren Baker was employed as an organiser with the Australian Workers' Union, a position he has occupied for over five years. Mr Baker alleged that his services were terminated on Friday, 28 October, 2005 after five years of employment and he subsequently lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act claiming the termination of his services was unfair and seeking his reinstatement, re-employment or, alternatively, monetary compensation in lieu thereof. The AWU claims that, whilst Mr Baker is presently suspended on full pay to permit it to investigate allegations of misconduct and poor work performance, he has not been dismissed at this time. 2 The matter was allocated by Registry staff who set it down Thursday, 8 December, 2005 for a conciliation and directions hearing. Mr Baker's representative in the proceedings suggested that the suspension was, in fact, a threat of dismissal and he pressed for an order under S.89(7) that the AWU refrain from terminating Mr Baker's services, viz: "In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat." The representative of the AWU in the proceedings argued that the matter was still under investigation and the AWU had not reached a position that constituted a threat of dismissal for the purposes of S.89(7). I set the matter down for a hearing on that threshold issue on Friday, 16 December, 2005. Mr Slevin represented Mr Baker in the hearing and Mr Tripodi represented the AWU. 3 The remedy under S.89(7) for a threat of dismissal is injunctive and interim in nature. For the threat to be sufficient to ground that remedy, in my opinion, it must be certain, imminent and unconditional to give rise to a claim under Part 6. For instance, a threat to dismiss an employee for an offence if he commits the offence again is unlikely to give rise to a legitimate Part 6 application. In the decision of Schmidt J in Hill v. Director-General of the Department of Education (1998) 85 IR 201 an interim order was made under S.89(7) with her Honour commenting (at p.208) that: "…both parties accepted that it would not be in every case of threatened dismissal that the Commission would be moved to make interlocutory orders. That necessarily follows I think from the structure of the Act. Taking S.87 for instance, the exercise of the powers granted under S.89 involve the Commission first accepting the employee's claim that the dismissal was harsh, unreasonable and unjust. The exercise of the power under Ss.136 and 137 will involve similar considerations. It follows that the Commission will not lightly interfere with an employer's contractual…right to terminate employment, without first having to come to the view that a particular dismissal or threatened dismissal has the impugned character…" 4 The general principles for cases of this type were summarised by Mason ACJ of the High Court in Castlemaine Toohey Limited v. State of South Australia (1986) 161 CLR 148 at p.153, viz: "…The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction…" 5 In my unreported decision of Friday, 27 November, 1998 in the Bon McArthur Pty Limited Dispute Case [Matter No.6254 and 6256 of 1998] I made orders under S.89(7) on behalf of 19 employees whom an employer intended to transfer over, without any consultation (and apparently in some haste), to a labour hire company, commenting (at. p.4) that: "...if the employees are transferred over to the labour hire companies and I ultimately conclude that the termination of their services...was harsh, unreasonable or unjust within the meaning of S.84(1), any claim for reinstatement on their behalf would be effectively precluded since the work they performed for the company would have been contracted out and there would be by that time no positions...to which they may be reinstated. Their claim would be confined to monetary compensation alone..." 6 There may be serious issues to be tried in these Part 6 proceedings - if Mr Baker is ultimately dismissed. But it appears to me that Mr Baker has jumped the gun and I informed Mr Slevin and Mr Tripodi of that fact in the hearing on Friday, 16 December, 2005. Mr Baker remains on the payroll. His mobile telephone and the vehicle the AWU supplied to him which were initially taken from him have been returned to him. I conclude that he is currently employed by the AWU. 7 In those circumstances, Mr Slevin indicated his intention to withdraw the claim of threatened dismissal but he wishes to preserve the Part 6 application. The AWU is to conduct a disciplinary interview of Mr Baker on Monday, 19 December, 2005. Mr Slevin has sought that I reconvene the proceedings for a mention on Wednesday, 21 December, 2005. Mr Tripodi has argued that the Part 6 application was simply an abuse of process and that I should dismiss the matter at this point. I have to say that in the light of the observations I have already made in this interlocutory decision, Mr Tripodi's assertions may well have substance. But I do not propose to dismiss the matter at this time. 8 Whilst Mr Baker's Part 6 application asserts (incorrectly in my view) that he has been dismissed, the hearing before me on Friday, 16 December, 2005 was confined only to the claim of threat of dismissal - which has been abandoned by Mr Baker. Any argument arising from Mr Tripodi's claim that Mr Baker's Part 6 application was an abuse of process should await a time when the parties are ready to address me on that matter. I do not believe that it is fair to Mr Baker for that allegation to be ventilated in the proceedings on Friday, 16 December, 2005 but I reserve the rights of the parties to address me on it in future if they wish to do so. 9 That having been said, I would not wish to intrude further into the current internal investigations within the AWU and will not do so. However, only two alternatives will flow from those investigations as far as Mr Baker's Part 6 application is concerned: either he will be dismissed (in which case the current Part 6 application may go forward) or, alternatively, he will not be dismissed (in which case the Part 6 application already lodged on his behalf will become redundant). It seems to me of little practical value to either party to dismiss the current Part 6 application but reserve to Mr Baker the right to lodge a fresh Part 6 application if he were to be dismissed. 10 In those circumstances, I propose to adjourn these proceedings for mention and, if necessary, further programming on Wednesday, 21 December, 2005. P J CONNOR 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.