46 Before reinstatement is ordered, the Commission is required to consider whether it is "appropriate", in all the circumstances, to make the order. That is a broad concept, encompassing a number of considerations. Counsel for the applicant submits that if reinstatement did not implicitly involve the employee's return to work, such considerations would be otiose.
47 In Perkins v Grace Worldwide (Aust) Pty Ltd (1996-7) 72 IR 186 at 189-92, the Full Court gave consideration to whether it had been appropriate for the trial judge to order compensation in lieu of reinstatement pursuant to s 170EE of the then operative Act. The employee concerned had been dismissed over the alleged supply of marijuana cigarettes to a fellow employee. On appeal, the Full Court gave particular consideration to whether the employer's lack of confidence in the employee was sufficient to make reinstatement impracticable and thereby inappropriate to order reinstatement. It was implicit in the Court's reasoning that reinstatement involved the employee's return to work. The Full Court, in addition to other cases, made reference to Wilcox CJ in Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50 at 60. His Honour there considered it may be impracticable to make such an order, in circumstances where it was likely to:
"impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business … notwithstanding the job remains available."
48 It is true that such Australian judicial straws in the wind, bending in a different context, do not carry the matter far.
49 However, in the absence of authority to the contrary, I would agree that reinstatement under s 170CH of the Act does implicitly involve a return of the employee to the workplace. The Act contemplates that it is only in circumstances where reinstatement is inappropriate that the suitable alternative is to award payment in lieu of reinstatement (s 170CH(6)). Thus, the apparent statutory purpose of the relief is to treat the dismissal as ineffective and restore the employment situation to its pre-termination status. If a direction to reinstate an employee required no more than that the employee be put back on the payroll, it is difficult to see why reinstatement would even be "inappropriate". Further, as Wilcox CJ observed in Perkins v Grace when considering the meaning of "reinstated" for the purposes of s 170EE, the predecessor of s 170CH, such meaning should be considered in light of its usage in industrial parlance. Such parlance would understand reinstatement to include reinstatement in the sense just mentioned, including all the usual incidents of the employment, such as attendance at the workplace and there being furnished with one's usual productive work.
50 A further reason for this conclusion is to be found in s 170CA which sets out the "principal object" of Division 3. The principal object (which is really a number of objects) includes:
"The principal object of this Division is:
(a) to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee's employment in certain circumstances; and
(b) to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and
(c) to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable;"
51 Section 170CA(2) continues:
"The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a 'fair go all round' is accorded to both the employer and employee concerned."
52 It is clear that the legislation aims at a practical and appropriate result in which broad community standards of fairness are involved. Who else provides the standard of a "fair go all round" than the reasonable Australian citizen? Such a standard would, in my opinion, be impatient with fine distinctions against a person found to have been treated harshly, unjustly or (in this case, and) unreasonably. Reinstatement to the position of employment including its usual practical incidents would, by such a standard, be the usually "appropriate" result: see also the considerations touched upon in [57] below.
53 In finding that the orders did require that the applicant be returned to work, it is important to clarify what the reinstatement order required in a practical and concrete sense. Counsel for the respondent was, in my opinion, correct in saying that reinstatement does not mean that an employee acquires new legal rights but simply restores the employment relationship with all, but only, the rights and entitlements to treatment in good faith which existed between the parties prior to the termination. It is to be remembered also that such obligations of good faith are owed by both parties. Part of the background matrix of facts in this matter showed a need for reasonable flexibility, recognised in the AWA, for the deployment of employees.
54 What the "position" was to which Mr Blackadder was to be reinstated by reappointment (c.f. s 170CH(3)(a)) is a question of fact and, as a matter of fact, a person may hold a position under which certain work is or is not required, whether or not such position has an express classification or description (such as "boner"): see State Rail Authority (NSW) v Bauer J (1994) 55 IR 263 at 269. Commissioner Redmond was plainly of the view that Mr Blackadder's s 170CH(3)(a) position was that of a boner required to do chilled boning work in the big boning room. Of particular significance are the Commissioner's findings that:
· the applicant's pre-existing medical condition probably caused him to be unable to perform work in hot neck boning;
· the applicant had not been appropriately trained to perform the hot neck boning; and
· there was no identifiable need related to the operational requirements of the business for the applicant to be selected to perform this work.
55 Taking these findings into account, the order to reinstate the applicant plainly intended that he would not only receive his wages and other entitlements but, in the first instance, at least, return to his former position of employment, namely to a position undertaking boning in the big boning room.
56 The evidence before me indicates that Mr Blackadder would concede that his position requires that occasionally, for bona fide operational purposes of the employer, he should relieve on the hot neck boning work.
57 As I have indicated, the applicant's rights are as before. If he then had a legal liability to be transferred to hot neck boning, upon reinstatement he would again have such liability. If he did not, or did not until he was trained, then again he would not be so liable. If he had a liability to undergo medical examinations from time to time, on the existence of a reasonable need for them and on reasonable terms, such liability would continue. Finally, whatever mutual rights and liabilities as to transfer, removal from active work or termination of employment pre-existed his termination, they will exist again after reinstatement. Some of these matters may involve difficult questions and their resolution should await full argument, if, as I hope will not be the case, it should become necessary. In the latter regard, Commissioner Redmond's comments as to the legal necessity under the AWA (and the Act (s 170VG(3))) to set up, and resort to, a disputes committee appear apposite.