Byrne & Anor v Australian Airlines, 185 CLR 410

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Matter No IRC00/4318 COLLEEN DAPHNE THOMAS AND CONSULATE GENERAL OF INDIA Application by Colleen Daphne Thomas re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 154

1 In a decision published on 22 February 2002, the Commission dismissed a notice of motion filed on 24 October 2000, by the Consulate General of India ("the respondent") in proceedings then before Hungerford J. The notice of motion sought an order dismissing an application pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"), lodged by Colleen Daphne Thomas ("the applicant") on 30 August 2000.

2 The respondent had sought the dismissal of the application on the grounds that the Commission had no jurisdiction in respect of the subject matter of the proceedings and that the proceedings had been improperly instituted. For present purposes, it is sufficient to observe that the Commission dismissed the notice of motion and found that the section 84 application was properly before the Commission.

3 As a result further conciliation proceedings were listed for 8 March 2002. However, these conferences proved unsuccessful in resolving the applicant's claim. It is pertinent to note at this juncture, the respondent's difficulties in obtaining instructions from the relevant authorities in India; a difficulty, I might say, which was evidenced throughout the proceedings. Notwithstanding these difficulties, the matter was listed for directions on 2 April 2002. At that time Mr N Potts of Counsel, for the respondent, did not oppose Mr Byrne's application, on behalf of the applicant, that a date be set for arbitration.

4 The Commission made a finding of unsuccessful conciliation, pursuant to s87 of the Act, and issued directions for the filing and service of affidavit material. The only evidence filed in the proceedings was a witness statement signed by the applicant on 30 April 2002.

5 I turn then to the uncontested evidence of the applicant.

6 The applicant's employment was terminated on 12 August 2000. As a consequence, she seeks compensatory relief from her dismissal claiming it to be "harsh, unreasonable and unjust " within the meaning of the Act.

7 The applicant is an Australian citizen and was 66 years of age at the time of her dismissal. She had been employed as secretary/typist at the Consulate General's office for almost eighteen years. Her duties included processing visa applications, answering general inquires in person, or on the telephone, and typing.

8 The applicant deposed that at a party to farewell another employee in January 1999, the Consul General had announced that the next farewell would be the applicant's, as she would be retiring at the age of 65 years. The applicant said she was shocked by this announcement and approached the Consul later that evening and told him she had no plans to retire. He had said that 65 years was the age India uses for retirement.

9 Two months later, the Consul approached the applicant and invited her to take leave before her proposed retirement in August. However in July, a month before her 65th birthday, the Consul invited her to seek an extension of her employment from the Indian Ministry for Foreign Affairs. She decided to do so.

10 In her letter to the Indian authorities, the applicant cited the abolition of forced age based retirement in New South Wales and provided medical certification confirming her total fitness for work. Her request was granted and she continued her employment for a further twelve months.

11 In April of the next year (2000) the applicant sought a further extension of employment - again providing medical certification of her fitness to do so. This time her request was denied. She was informed on 5 June that her employment would be terminated on 12 August 2000.

12 The terms of the advice were as follows: Ms. Colleen D. Thomas, Locally recruited Clerk/Typist, who reached the age of Superannuation as prescribed by the Government of India and was, as a special case, given extension with effect from 13.8.1999, may please refer to her application dated 18.4.2000 for further extension in service. She is hereby informed that her request has not been acceded to by the concerned authorities and her services will, therefore, stand terminated with effect from 12.8.2000 (AN)

13 The applicant had an unblemished employment record as attested to by the reference provided by the Consul General, Sudhir Kumar, after her termination: TO WHOM IT MAY CONCERN, Ms Colleen D. Thomas joined this Consulate in 1979. After a short break in between, she has worked continuously with us since October 1982. She leaves us today on superannuation During her long service in this Consulate, Ms Thomas worked in the Administration as well as Visa/Passport Wings of this Consulate. It goes without saying that the functioning in these wings requires utmost care, diligence and hard work. Ms Thomas was found to be a very hard working, conscientious and dedicated employee. She was a true team member, which was very important for efficient and smooth functioning of the Consulate. It will be hard to replace her. We wish Ms Thomas all the very best in her future life.

14 The applicant claimed that the only reason she was dismissed was because of her age and that such a dismissal must be unfair and unlawful. From the documentation so far referred to in evidence, there would appear to be little argument with this contention. However, the applicant provided further evidence to support her case.

15 In May 2000, after returning from leave, the applicant deposed that someone else was sitting at her desk and she was asked to take care of the counter. Next month, she was instructed not to disturb the person sitting in her usual office and from then until August she sat at various desks doing her work as instructed. She complained that she had to awkwardly sit at the end of other employees' desks. She said she found this treatment humiliating.

16 In oral evidence, the applicant said she started making inquires about new employment when she was given notice in June 2000. She had made phone calls and answered newspaper advertisements. However, she felt her age was hindering her chances and she was very discouraged.

17 In cross-examination, the applicant said that her only income was the age pension as she had not been able to find alternative employment. The applicant said that no one in the office ever mentioned retirement age until the farewell party in January 1999. She had then made inquiries with the Anti-Discrimination Board and was told that no employee could be forcibly retired. During her eighteen years of employment, she was aware of only one other employee, a male driver, who had retired.

18 The applicant was questioned as to her duties at the Consulate. She agreed that there was a mixture of Indian and locally employed staff and that they all worked as a team. However she performed a lot of tasks that no one else did - such as certain correspondence and follow up to India. The applicant identified a number of photographs of the office layout and acknowledged that her tasks were performed at various locations in the office, including the front desk.

19 To my mind, the evidence of the applicant as to her duties and sitting arrangements between 5 June - 12 August is not relevant to my findings in this matter. Nevertheless, I am satisfied that the applicant performed a range of office duties at various locations in the office.

20 Mr Byrne, for the applicant, submitted that the termination of the applicant's employment was "harsh, unreasonable and unjust." The applicant was a hardworking and dedicated employee with eighteen years unblemished service. The respondent had recognised and acknowledged her commitment and dedication. Notwithstanding her age, Mr Byrne said the applicant was intelligent, articulate, in good health and was well able to perform all her duties.

21 Mr Byrne put that the applicant's dismissal was based solely on her age. No other issues were related to her dismissal. He said the applicant was poorly treated after being given her notice in June 2000. She was displaced from her office and was humiliated as a result.

22 Despite her best endeavours and undoubted skills and qualifications, Mr Byrne said the applicant had been unable to obtain alternative employment.

23 Mr Byrne referred to my decision in Passas and Skouloudis Group Pty Ltd t/as O Kosmos [2001] NSWIRComm 75. He submitted in that case, the factors the Commission took into account in awarding the maximum compensation were similar to those in evidence here: the applicant's age, length of service, unblemished record and the gross unfairness of her treatment by the respondent. He submitted that the maximum compensation should be awarded in this case based on agreed amount of $492.20 per week.

24 Mr Byrne also relied on s169 of the Act. He put that a dismissal based on age was a clear and flagrant breach of the Anti Discrimination Act 1977 (NSW).

25 Mr Potts, for the respondent, submitted that it had never been disputed that the termination of employment was based on the applicant's age. He sought, however, to mitigate the claim by the three months notice the applicant received of her dismissal. The applicant had also received a year's extension of her employment in 1999. Mr Potts accepted that the Consul General's "hands were tied" by his instructions from Delhi.

26 Mr Potts conceded that the dismissal could be described as either "harsh, unreasonable or unjust."

27 In reply, Mr Byrne submitted that the notice period should not be given any great importance because the applicant was unable to secure alternative employment either during the notice period or subsequently.

28 I begin my consideration of this matter by expressing serious concern at the time it has taken from the applicant's dismissal almost two years ago, to the determination of her claim for unfair dismissal. The delay rests not with the applicant, or her representatives, or the Commission; but rather with the inability, at almost every point in these proceedings, of the respondent's legal representatives to obtain instructions from the relevant authorities in India.

29 In the jurisdictional decision I referred to the earlier proceedings before Hungerford J (Para 3-12). It is obvious that his Honour held similar concerns about the delays in moving this matter forward.

30 It is, of course, entirely appropriate for a party to challenge the Commission's jurisdiction to deal with any matter before it. The consequence will often be a delay in determining a final result. Here, however, on any reading of the history of the matter, the Commission has not been able to discharge its statutory obligations under s162(2) of the Act "to act as quickly as practicable" due entirely to the respondent's failure to provide timely, (or sometimes not at all), the necessary instructions for an efficient disposal of the proceedings.

31 The Commission would emphasize that, in no way should these comments be viewed as a criticism, or reflection on the respondent's counsel. Mr Potts was often placed in an untenable position. He handled his brief with discretion and courtesy. I have considerable sympathy with the difficulties he faced on more than one occasion.

32 Moreover, a timely disposition of this matter at the arbitration was assisted by Mr Potts' helpful and, I should say, most appropriate admissions. I refer particularly to this exchange between the Bench and Mr Potts at pp 24-25 of the transcript: HIS HONOUR: Do you concede then the dismissal of the employee was in terms of the Act, either harsh, unjust or unreasonable, but in so conceding, say that the remedy sought by the applicant should be mitigated by such things as the notice given, the extension of time granted and the like? POTTS: Yes your Honour It is difficult to place, I suppose the federal Act states more precisely, an unlawful termination according to the Anti Discrimination Act prohibiting the termination of people on the basis of age. HIS HONOUR: Our Act doesn't speak of unlawful discrimination but the Anti Discrimination Act in New South Wales talks about unlawful grounds. POTTS: Given the state Act does talk about unlawful termination I concede that falls into one of those grounds, harsh, unjust or unreasonable and it would be covered by at least one or another of those. HIS HONOUR: I appreciate your candour. POTTS: I do not have any more submissions.

33 The task of the Commission is to determine whether the dismissal of the applicant was "harsh, unreasonable or unjust" within the meaning of Pt 6 ch 2 of the Act.

34 The expression "harsh, unreasonable or unjust" is not defined in the statute, but has been relevantly considered in a number of frequently quoted authorities. The meaning of the words have an industrial connotation based on their ordinary plain English usage.

35 The Macquarie Dictionary defines the terms "harsh" - ungentle and unpleasant in action or effect; "unreasonable" - not endowed with reason; not guided by reason or good sense; not based on, or in accordance with, reason or sound judgement; and "unjust" - not just; not acting justly or fairly, as persons; not in accordance with justice or fairness, as actions. 36 The Concise Oxford Dictionary defines "harsh" - repugnant to feelings or judgment; cruel, unfeeling; "unreasonable" - not reasonable; going beyond the limits of what is reasonable or equitable; and "unjust" - not just, contrary to justice or fairness.

37 Notwithstanding that the expression "harsh, unreasonable or unjust" is often applied globally to a particular dismissal, it can be seen from the dictionary definitions, that each word has a discrete meaning.

38 This distinction was discussed in the oft quoted authority Byrne & Anor v Australian Airlines 185 CLR 410 where McHugh and Gummow JJ in their joint judgement said: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

39 In Outboard World v Muir (1993) 51 IR 167, the Full Commission cautioned against too broad a finding of unfairness, where the specific expression in the statute of "harsh, unreasonable or unjust" requires a particularity of finding based on one, or more, of the express and discrete meaning of the words. The Full Commission said at p182: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'.

It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power.

In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made.

40 The Full Bench in Bankstown City Council v Paris, 93 IR 209, emphasized the importance of making "a positive and specific finding" on each of the words in the expression "harsh, unreasonable and unjust": The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made.

41 The Commission has been able to determine this matter based on its merits and in light of the concessions made by the respondent. It is unnecessary therefore, for the Commission to make any observations or findings based on procedural matters.

42 Of particular relevance are the age discrimination provisions of the Anti Discrimination Act 1977. Section 49ZYB(2) is as follows: It is unlawful for an employer to discriminate against an employee on the ground of age: (a) in terms or conditions of employment that are afforded to the employee, or (b) by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment.

43 It is trite to point out that the Commission is mandated by s 169 of the Act to take into account the principles contained in the Anti Discrimination Act 1977 in the exercise of any, and all of its functions and powers. 169. Anti-Discrimination matters (1) The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977.

44 Age discrimination is unlawful in New South Wales. It is appropriate that I should take such a matter into account in respect to this application.

45 The significance of s169 of the Act was referred to recently in Crown Employees Teachers in Schools and TAFE and Related Employees Salaries and Conditions Award [2002] NSWIRComm 144: The operation of s169 was considered by the Full Commission in Re State Personal/Carer's Leave Case (1998) 84 IR 416. It was there held that s 169 was "one of a number of provisions which run through the Industrial Relations Act which together form a scheme designed to incorporate Anti-Discrimination Act concepts into the industrial jurisdiction." Those concepts were considered to be of "fundamental importance" to the operation of the present statutory scheme. The reference to the "principles" contained within the Anti-Discrimination Act in s 169(1) was considered to require the Commission to have regard to the express provisions of the Act. This would, in our view, plainly include provisions such as s 24(1)(b) of the Anti-Discrimination Act , encompassing notions of indirect discrimination. As was expressly acknowledged by the Full Bench Re Equal Remuneration Principle (2000) 97 IR 177 it is "fundamental human right" that every person is entitled "to be treated equally and fairly in the sense that the person should not be dealt with on the basis of irrelevant considerations such as the person's sex, race, or age, and with a right not to be discriminated against by reference to such considerations". Further, the Full Bench observed (at [43]): This right is reflected in various statutory provisions in New South Wales. The fixing of a rate of pay for, or the payment of a wage or salary to, a woman where that rate of pay, salary or wage has been fixed differently because of the woman's sex is presumptively an infringement of her human rights and inconsistent with the provisions of the 1996 Act.

46 In my opinion, the dismissal of the applicant for the irrelevant reason of her age, to use the words of the Full Bench in Re Equal Remuneration Principle Case, is "presumptively an infringement of her human rights and inconsistent with the provisions of the 1996 Act."

47 There is a line of celebrated cases known as Christie v Qantas, which considered the compulsory retirement of Qantas pilots at age 60 in the context of the termination of employment provisions of the Industrial Relations Act 1988 (Cth), (Christie v Qantas Airways Ltd 60 IR 17; Christie v Qantas Airways Ltd (No 2) 68 IR 248; Qantas Airways Ltd v Christie 79 IR 120).

48 The relevant provisions of the former Federal Act are found at s 170DF(1)(f) "An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: (a)... (b)... (c) … (d)… (e)… (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. (g)… Subsection (2) provides, a defense to a claim under s 170DF(1)(f): "(2) Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position." I note these provisions are replicated in the Workplace Relations Act , 1996 (Cth).

49 The Christie judgments considered the medical, safety and operational issues said to affect airline pilots who attain the age of 60 years and the "inherent requirements" of the job. These are the closest authoritive judgments of which I am aware, on age-based termination of employment. The judgments, however, are not directly to the point. This is so because the respondent here puts no defence that the applicant was incapable of performing her duties or posed a safety risk. Indeed, it has candidly acknowledged that the only reason for the applicant's dismissal was her age, and had nothing to do with her competence or ability to perform her duties.

50 From the uncontested evidence and the respondent's admissions, the Commission makes the following findings: 1) The applicant had an unblemished record of employment for almost eighteen years with the one employer. 2) There is no issue, medical or otherwise, pertaining to the applicant's performance in her job, which in any way reflects on her capacity to have been able to continue to be employed. 3) The only reason the applicant's employment was terminated was she had reached the retirement age for employees in India. 4) There appears to be little authority directly related to a dismissal based on an employee's age. However, such a dismissal must be demonstrably unfair. This conclusion is fortified by the express provisions of the Anti Discrimination Act making it unlawful to discriminate against an employee on the ground of age by dismissing the employee. 5) The dismissal of the applicant because of her age can appropriately be characterised as "cruel," "unfeeling," and "not based on reason or good sense." 6) The dismissal of the applicant has had detrimental personal and economic consequences for her. 7) Having regard to s 169 of the Act, the dismissal must be unlawful in terms of s 49ZYB of the Anti Discrimination Act , 1977.

8. The dismissal of the applicant for the irrelevant reason of her age was an infringement of her human rights. 9) The applicant's dismissal based solely on reaching retirement age, is one which can comfortably be characterised as being "harsh, unreasonable and unjust " within the meaning of Pt 6 ch 2 of the Act.

51 The Commission was initially of a mind to order the reinstatement of the applicant. Such a result would be consistent with the statutory and policy emphasis of the Act on the remedy of reinstatement. It would also appear to create no practical workplace difficulties having regard to the glowing references from her employer and the applicant's unblemished record.

52 However, in my judgement there are a number of factors, which militate against such a remedy. These include, inter alia, the applicant's reluctance to return to her former employment in view of the circumstances of her dismissal and the period of almost two years since the applicant's dismissal.

53 Accordingly, I find that reinstatement or reemployment would be impractical. I propose to make an order of the maximum compensation available under s 89 (5) of the Act.

54 I consider it appropriate to order twenty-six weeks pay having particular regard to: 1) The applicant's age and unblemished record of employment.

2. Her unsuccessful attempts to find alternative employment.

3. The unusual and unique circumstances of this case.

4. The considerable delay in determining this matter for which the applicant is not responsible. 55 In considering any compensatory order, Mr Potts asked the Commission, to take into account the three months notice of termination and the twelve months extension of the applicant's employment in 1999.

56 I would firstly, observe that the three months' notice was no more than what should have been expected for eighteen years of unblemished employment. Secondly, the twelve months extension of employment gave the respondent an additional twelve months worth of work from a hardworking and loyal employee.

57 As a consequence I do not allow for any discount of the maximum compensation available under the Act. Moreover, in my opinion, having regard for the severity of the unfairness of the dismissal and its consequences for the applicant, this is a case where the maximum compensation is manifestly inadequate. Nevertheless, I am obviously, barred by the statutory provisions of s 89(5) from making an order in excess of twenty-six weeks.

58 Pursuant to s 89(5) of the Industrial Relations Act 1996, the Commission orders that: 1) The respondent, the Consulate General of India, shall pay to the applicant Colleen Daphne Thomas, an amount of $12,797.20 based on` twenty-six (26) weeks pay at $492.20 a week. 2) The amount in Order 1 shall be paid within twenty-one days of today. 3) These proceedings are concluded. Peter Sams Deputy President

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