Deltec International Pty Ltd v Transport Workers' Union of Australia, New South Wales Branch

HEARING DATES: 09/05/2003 EXTEMPORE JUDGMENT DATE : 09/05/2003

APPELLANT: Mr S Coleman of counsel SOLICITORS: Bowles Lawyers Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT: Mr S Boatswain, solicitor SOLICITORS: Harmers Workplace Lawyers

JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

BRIDGES SERVICES CO PTY LIMITED AND BRETT DANIEL TAYLOR Application by Bridges Services Co Pty Limited for leave to appeal and appeal against a decision and order of Commissioner Ritchie given on 12 August 2003 in matter number 6918 of 2002

1 On 12 August 2003, Commissioner Ritchie gave a decision reinstating the respondent, Mr Brett Daniel Taylor, to his former employment with the appellant, Bridges Services Co Pty Limited. On 2 September 2003, the appeal was filed and a stay of the orders sought. The stay was opposed. 2 The law as to the basis upon which a stay may be granted is clear. It was stated by the Industrial Commission of New South Wales in Court Session Water Industry Salaried Officers' Union v Professional Officers Association (NSW) (1987) 22 IR 178. These principles have often been stated and applied, see, for example, Re Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192. 3 In this case the appellant pointed to a number of matters in support of the stay. They included that it has sought to comply with the Commissioner's orders, but that this has raised problems because the position to which reinstatement has been ordered no longer exists. While the Commissioner also ordered re-employment, he had failed to deal with the necessary jurisdictional pre-requisites of s89(2). There was no finding that reinstatement was impracticable and no other available position was identified. 4 The result has been that the respondent has been placed on the payroll and is in receipt of his former weekly pay, but the appellant has no work for him to perform. 5 The appellant was also ordered to pay the respondent a lump sum of $41,827. This, with the ongoing obligation to pay him $1,442.31 per week until the appeal is heard, in circumstances where there had been a retrenchment, gave rise to obvious difficulties with the judgment, on the appellant's approach. 6 At the time of the hearing before the Commission the appellant had not been in alternative employment. This was a matter which should have been given consideration by the Commissioner, it was argued.

7 The result for the appellant in all these circumstances if the stay was not granted, it was submitted, would be to make the appeal nugatory, particularly given the time at which it would reasonably be expected that the appeal would be heard. 8 The respondent argued that a fair reading of the Commissioner's decision made clear that the matters relied upon by the appellant had no foundation; they were all matters argued before the Commissioner and were all decided against the appellant. The appellant's own submissions showed that the position in which the respondent had formerly been employed still existed, albeit it was now filled by a contractor. It was argued that in all of these circumstances the appellant should not be denied the fruits of his victory. 9 The hearing was adjourned in order to enable the parties to consider what the sum of $41,827 ordered to be paid by the Commissioner represented, given the respondent's weekly rate of pay and the period during which he had been out of the appellant's employ, between November 2002 and August 2003. This was not clear from the Commissioner's decision. The upshot was that it was believed that this represented twenty-nine weeks' pay, taking into account four weeks' pay in lieu of notice.

Consideration 10 The filing of an appeal does not of itself provide a proper basis for the grant of a stay. The onus is on the appellant to demonstrate the proper basis for the stay to be granted. Regard must also be had to the balance of convenience and the competing rights of the parties. This also involves a preliminary consideration as to whether or not there is an arguable basis for the appeal.

11 Having considered the Commissioner's decision and the parties' competing submissions, it must be concluded that this is not a case where the appeal can be regarded as futile. That is not to say that it is without difficulty. 12 Given the evidence of the circumstances in which the respondent's employment came to an end; what transpired prior to the termination of that employment and the position that the respondent has not ever sought employment other than with the appellant throughout this time, there has to be a proper basis for the concern that the appeal may well prove to be nugatory, unless a stay is granted, albeit on terms. 13 The appellant sought to be relieved both from paying the respondent his weekly pay, as well as the sum of $41,827. There is, it must be said, little prospect of this appeal being heard within a time period when the payment of the weekly sum alone will not have the result that the maximum compensation available to the respondent under s89(5) of the Industrial Relations Act 1996 ('the Act') will have been exceeded. The appellant argues that this is the only basis upon which an order could have been made in favour of the respondent, if the Commissioner's decision that the dismissal was harsh, unreasonable and unjust was correct. 14 The appellant proposed that in these circumstances the sum of $37,500 be placed in an appropriate account to be held on trust, pending the outcome of the appeal and that it was prepared to pay $10,000, less tax, to the appellant, out of that amount in the meantime. 15 The orders made by the Commissioner were that the appellant: "(a) reinstate Mr Brett Daniel Taylor in employment to his former position as a business analyst or some comparable position with comparable salary;

(b) pay to him the sum of $41,827 within 28 days and take his employment not to have been broken by his dismissal."

16 The order took effect on the date of the decision, 12 August 2003. 17 Any stay which is ordered must be fair to both parties. I am not satisfied that what is proposed by the appellant will achieve this, especially having regard to the difficulties in the appeal, from the appellant's point of view. Proper regard must be paid to this in any consideration of the balance of convenience lying between the parties. 18 The orders as framed, however show why it is arguable that necessary regard was not paid by the Commissioner to the requirements of s89(2) of the Act and the distinction provided in the statute between reinstatement, which is concerned with re-establishing an employment relationship and re-employment, which rather looks to the future. (See Deltec International Pty Ltd v Transport Workers' Union of Australia, New South Wales Branch (1993) 50 IR 341.) 19 The Commissioner found that the reason for termination was not that the applicant's position in November 2002 "was surplus to requirements". He went on to find: "As Wood accepted, it was eight months after the termination that the position was surplus to requirements.

Even if the position is or was surplus to requirements, no evidence was brought before this Commission to the extent required for this Commission to find in favour of the respondent with respect to that point."

20 It cannot, however, be overlooked that even in the respondent's submissions on the merits, it was argued that "the job performed by the respondent for the appellant encompassed a much wider range of duties than those that were performed by the particular independent contractor referred to." 21 In all of these circumstances, I am satisfied that the Commissioner's orders should be stayed on terms which will require half of the sum of $39,500 to be paid to the respondent, with the balance to be held in an account on the terms proposed by the appellant. This will ensure that the respondent is not entirely deprived of the fruits of his victory and that the risk that the appeal will be nugatory will be minimised, having regard to the Commissioner's decision and my preliminary assessment of the prospects of the appeal, in an endeavour to balance the parties' competing interests.

Order 22 For all of these reasons, I order accordingly. The costs of the stay application will become costs in the proceedings. ------------------------

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