Pawel v Australian Industrial Relations Commission

Consideration 9 In considering the appropriateness of the approach adopted by the Full Bench of the Commission, it is necessary for consideration to be given to the statutory provisions which founded Mr Pawel's application to the Commission. In particular, it is necessary for consideration to be given to the nature of the various determinations which such provisions require the Commission to make. 10 As is mentioned above, s 170CE of the Act, the relevant provisions of which are set out above, is found in Subdivision B of Division 3 of Part VIA of the Act. Section 170CB(1) of the Act provides: "Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground that that termination was harsh, unjust or unreasonable, if the employee concerned was, before the termination: (a) a Commonwealth public sector employee; or (b) a Territory employee; or (c) a Federal award employee who was employed by a constitutional corporation; or (d) a Federal award employee who was a waterside worker, maritime employee or flight crew officer, employed in the course of, or in relation to, trade or commerce between Australia and a place outside Australia, between the States, within a Territory, between a State and a Territory, or between 2 Territories." 11 Section 170CB(1) of the Act has constitutional significance. It reflects limitations upon the power of the Commonwealth Parliament to confer jurisdiction on the Commission. In Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 517-8 the High Court held that the Commonwealth Parliament could not, in purported implementation of the Termination of Employment Convention, proscribe generally the termination by an employer of an employee's employment in circumstances where the termination is harsh, unjust or unreasonable. 12 Section 170CB(1) is intended to provide a secure constitutional base for the present s 170CE(1)(a) of the Act by limiting its sphere of operation. Section 170CB(1) reveals that s 170CE(1)(a) has not been enacted pursuant to the power of the Parliament to make laws with respect to external affairs (Constitution s 51(xxix)) but pursuant to the powers of the Parliament to make laws with respect to the Commonwealth public service, the government of Territories, foreign corporations and trading or financial corporations formed within the limits of the Commonwealth, trade and commerce with other countries and among the States and matters incidental to the execution of any power vested by the Constitution in the Parliament or the Government of the Commonwealth (Constitution ss 52(ii), 122, 51(xx), 51(i), 51(xxxix) respectively). 13 Plainly s 170CB(1) is intended to establish objective limits on the jurisdiction of the Commission under s 170CE(1)(a). Those limits are intended to confine the provision in a way which ensures its constitutional validity. The provision would not be so confined if the Commission were given the power to determine the ambit of the section by reference to its own opinion or satisfaction (see Industrial Relations Act Case per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ at 509). Plainly enough, there is a distinction between a law with respect to, for example, the government of a Territory and a law which the Commission is of the opinion is a law with respect to the government of a Territory. As Fullagar J pointed out in The King v Blakeley; Ex parte the Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 89: "… power to determine conclusively a question upon which jurisdiction is made to depend cannot validly be conferred upon a person or body in such manner as to enable a jurisdiction to be exercised which would exceed the limits of constitutional power." 14 Thus, although the Commission on an application under s 170CE(1)(a) must determine whether the applicant was an employee in one of the categories specified in s 170CB(1), the jurisdiction of the Commissioner under s 170CE(1)(a) is contingent on the fact that the applicant was such an employee, and not on the Commission's opinion or satisfaction in this regard. That is, to adopt the language of Gummow J in Minister for Immigration Multicultural Affairs v Eshetu (1999) 162 ALR 577 at para 127, the determination of whether the applicant is an employee in one of the categories specified in s 170CB(1) is a determination not only of jurisdictional fact but a determination of "constitutional facts" (see also The Queen v Judges of the Federal Court of Australia; Ex parte W.A. National Football League (1979) 143 CLR 190 at 214-215). On an appeal to the Full Bench of the Commission with respect to a determination of a Commissioner as to whether an applicant was an employee in one of the categories specified in s 170CB(1), the Full Bench would be concerned with whether the Commission reached the right conclusion as to whether an applicant under s 170CE(1)(a) was such an employee. It would not be concerned simply with whether the decision of the Commissioner was reasonably open to him or her. 15 The limitation in s 170CE(1) that an applicant for relief must be "an employee whose employment has been terminated by the employer" is also a limitation on the jurisdiction of the Commission but it is not a limitation based on "constitutional facts." For this reason, it would have been open to the legislature to have expressed the limitation in terms of the opinion or satisfaction of the Commission. That is, to have expressed the limitation in terms such as, "an employee who satisfies the Commission that his or her employment has been terminated by the employer may obtain relief from the Commission" (see Eshetu per Gummow J at para 130). However, s 170CE(1) is not expressed in terms of the belief, opinion or satisfaction of the Commission. 16 There seems to be no reason not to construe s 170CE(1) in accordance with the ordinary meaning of the words used in it. That is, that the jurisdictional fact which conditions the powers of the Commission under s 170CE(1) is that the applicant is "an employee whose employment has been terminated by the employer" within the meaning of the subsection. As Gummow J pointed out in Eshetu at para 127, a court or tribunal cannot give itself jurisdiction by erroneously deciding that a jurisdictional fact exists (see also The Queen v Judges of the Federal Court of Australia at 214). On an appeal to the Full Bench of the Commission with respect to a determination of a Commissioner as to whether an applicant was "an employee whose employment has been terminated by the employer", the Full Bench would be concerned with whether the Commissioner reached the right conclusion as to whether the applicant was such an employee. It would not be concerned simply with whether the decision of the Commissioner was reasonably open to him or her. 17 The approach to be taken by the Full Bench of the Commission, when entertaining an appeal against a decision of a Commissioner that he or she is "satisfied" of a particular matter, in circumstances in which the "satisfaction" is a basis of jurisdiction, is to be contrasted to the approach discussed above. The proper approach on appeal from a decision concerning a Commissioner's satisfaction or opinion was considered by the Full Court of this Court in Construction, Forestry, Mining and Energy Union v Giudice (1998) 159 ALR 1 at 9: "The nature of a power exercisable when an opinion is formed will depend on the statutory context in which the power arises. So too will the basis upon which the exercise of power can be challenged. Generally the repositories of such a power must act in good faith and not arbitrarily or capriciously. They must not misdirect themselves in law or fail to take into account relevant considerations or take into account irrelevant considerations. The exercise of power may be challenged on the footing that the decision is so unreasonable that no reasonable person could properly arrive at it. These matters were discussed by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-19; 9 ALR 81 and referred to with approval by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-6; 136 ALR 481." 18 It may be that the above approach is properly to be understood as one involving an inquiry as to whether the opinion required by the legislation has in fact been formed. That is, in the ordinary case legislation calling for the formation of an opinion will be construed as requiring an opinion such as could be reached by a reasonable person who correctly understands the law under which he or she is acting (The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 per Latham CJ at 430, cited by Gummow J in Eshetu at para 133). 19 In Singer v Berghouse (No 2) (1994) 181 CLR 201 at 212 Mason CJ, Deane and McHugh JJ, in considering the principles governing the review of a decision on a jurisdictional question which, while strictly a question of fact, involved the exercise of value judgments, expressed agreements with the following comments of Kirby P in Golosky v Golosky NSW CA 5 October 1993: "Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged." 20 Section 45(1)(g) of the Act provides that, subject to the Act, an appeal lies to the Full Bench of the Commission, with the leave of the Full Bench, against - "… a decision of a member of the Commission that the member has jurisdiction, or a refusal or failure of a member of the Commission to exercise jurisdiction, in a matter arising under this Act." 21 The applicant, as is mentioned above, sought the leave of the Full Bench of the Commission to appeal the decision of Commissioner Simmonds. Ground 8 of the Notice of Appeal asserted that: "The Commission erred in failing to hold, and ought to have held: (a) that the termination of employment was at the initiative of the respondent; …." 22 Ground 8 adequately raised, in our view, the issue of the alleged refusal or failure of the Commissioner to exercise the jurisdiction vested in the Commission by s 170CE(1)(a).

23 The Full Court of this Court in Construction, Forestry, Mining and Energy Union v Giudice at 20 said: "It can be seen from s 45(1) that an appeal lies to a Full Bench only with the leave of the Full Bench. Section 45(1) confers a power on the Full Bench to grant leave and s 45(2) requires a Full Bench to grant leave if it forms the opinion that the matter is of such importance that in the public interest leave should be granted. The formation of that opinion dictates that leave be granted. Section 45(2) does not prescribe the test for the grant of leave. It requires the Full Bench to grant leave, if the Full Bench forms the requisite opinion. The conventional considerations for the granting of leave, including whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Bench or whether substantial injustice would result if leave were refused, supposing the decision to be wrong, are not replaced by a different test: rather, s 45(2) provides a further, and obligatory basis for the grant of leave." 24 The proper construction of the phrase "termination of employment at the initiative of the employer" was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. The approach adopted by the Full Court was referred to, with apparent approval, by McHugh J in Qantas Airways Limited v Christie (1998) 193 CLR 280 at 301. The Full Court held in Mohazab that a termination at the initiative of an employer occurs when "the act of the employer results directly or consequentially in the termination of the employment" (Mohazab at 205). 25 The Full Court in Mohazab was required to give consideration to the expression "termination at the initiative of the employer" in the context of the Termination of Employment Convention (see particularly Mohazab at 203). As is mentioned above, s 170CE(1) is not enacted as a law appropriate and adapted to achieve the purpose or object of giving effect to the Termination of Employment Convention (see Industrial Relations Act Case per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ at 488). Although s 170CD(2) provides that an expression used in Subdivision C, D or E of Division 3 of Part VIA of the Act has the same meaning as in the Termination of Employment Convention, no such provision operates in respect of Subdivision B. However, it seems reasonable to conclude that the expression "termination at the initiative of the employer", and closely related expressions, are used throughout Division 3 of Part VIA of the Act with the same meaning. On this basis, the construction of the expression adopted in Mohazab would extend to s 170CE(1)(a). Neither party before this Court suggested otherwise. 26 However, that was not the construction of the expression adopted by Commissioner Simmonds. The Commissioner was apparently not referred to the decision of the Full Court of the Industrial Relations Court of Australia in Mohazab. He appears to have proceeded on the basis that he could only find that Mr Pawel's employment had been terminated by his employer if the requirement of the employer that Mr Pawel undertake welding duties amounted to a "breach, or threatened breach of an essential term of the employment contract." Neither party before this Court sought to defend this approach. 27 The approach adopted by the Full Bench of the Commission in refusing Mr Pawel leave to appeal was to consider whether the instruction given to Mr Pawel by his employer was a reasonable one. The Full Bench said: "If an employer's instruction is consistent with the terms and conditions of an employee's contract of employment and the instruction is a reasonable one and the employer insists upon it then in our view the giving of the instruction cannot be regarded as the employer acting in such a way as to leave the employee in a position where he felt he had no other option but to leave the employment. Put another way we do not think that the test applied by Simmonds C was in its operation consistent [inconsistent?] with Mohazab. The real question is whether the instruction was a reasonable one." 28 It may be observed that Mohazab provides little, if any, support for the approach adopted by the Full Bench of the Commission. That approach might well be thought to involve a measure of confusion between the separate issues of first, whether the employment was terminated at the initiative of the employer and secondly, if it was, whether the termination was "harsh, unjust or unreasonable." This is not to say that there can never be factual overlap between these two issues. There may well be. 29 The reasons for decision of the Full Bench of the Commission make it plain that it regarded the crucial question on the application for leave to appeal as being whether the conclusion of Commissioner Simmonds that he was unable to find that Mr Pawel's employment was terminated at the initiative of the employer was one "reasonably open to him." This would appear to suggest that the Full Bench overlooked the fact that the determination of whether Mr Pawel was "an employee whose employment has been terminated by the employer" was a determination of jurisdictional fact not conditioned on the opinion or satisfaction of the Commission. 30 Had the Full Bench granted Mr Pawel leave to appeal, the Full Bench would itself have come under a duty to determine whether Commissioner Simmonds in fact had jurisdiction to entertain Mr Pawel's application. That is, to determine whether Mr Pawel was "an employee whose employment has been terminated by the employer" within the meaning of s 170CE(1) of the Act (Sammartino v Commissioner Foggo [1999] FCA 1231 at pars 9-10). The issue not being one concerning the Commissioner's satisfaction, it would not have been sufficient for the Full Court to consider merely whether it was reasonably open to the Commissioner to find that Mr Pawel was "an employee whose employment has been terminated by the employer." 31 However, the Full Bench refused leave to appeal. It did so on the stated basis that it did not believe that in the approach adopted by Commissioner Simmonds "to the matter or in his conclusions in relation to the evidence" there was "error of a character which would justify the grant of leave to appeal." It is not clear what the Full Bench meant by "error of a character which would justify the grant of leave to appeal." It may be the case that the Full Bench of the Commission erroneously proceeded on the basis that the proposed appeal concerned the exercise by Commissioner Simmonds of a discretionary power. 32 The application before the Court is an application for the issue of writs of certiorari and mandamus to the Full Bench of the Australian Industrial Relations Commission. The nature of the application places constraints on this Court which would not exist if the matter had come to the Court by way of appeal from the decision of the Full Bench. In Craig v South Australia (1995) 184 CLR 163 at 175 the High Court said: "Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'." 33 As we understand it, the applicant asserts that a writ of certiorari should issue to quash the decision of the Full Bench refusing leave to appeal on the ground of jurisdictional error. 34 The Full Bench is not an inferior Court; it is a tribunal which is amenable to certiorari. In Craig v South Australia at 179 the High Court said: "At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law." 35 In Sammartino the Full Court of this Court issued a writ of certiorari to quash a decision of the Full Bench of the Commission refusing leave to appeal on the basis that the Full Bench had fallen into an error of law which caused it to identify the wrong issue for its consideration. 36 In Mann v Ross (1999) 88 FCR 274 a Full Court of this Court issued a writ of certiorari, not to quash a decision of a Full Bench of the Commission to refuse Mr Mann leave to appeal against a decision of the Commission constituted by a Commissioner (although such a decision had been made), but directly to quash the decision of the Commissioner that the Commission lacked jurisdiction to determine Mr Mann's application for relief. In Mann's case the Full Court positively found that the Commission did have jurisdiction to determine Mr Mann's application for relief. 37 In Haining v Drake (1998) 87 FCR 248 the Full Court of this Court accepted that prerogative relief is available where the Full Bench of the Commission falls into an error of law which causes it to identify a wrong issue or ask itself a wrong question provided that the Commission's exercise or purported exercise or power is thereby affected (per Wilcox and Marshall JJ at 251 and Moore J at 252). Wilcox and Marshall JJ in Haining v Drake refused prerogative relief where the Full Bench had refused leave to appeal because the erroneous view of the law which the Court found that the Full Bench had adopted did not affect its exercise of power.

38 It is appropriate, in our view, for this Court to act consistently with earlier decisions of the Full Court of this Court as to the circumstances in which prerogative relief should be granted in respect of decisions of the Full Bench of the Commission, unless satisfied that such decisions are clearly wrong. We are not satisfied that the above decisions are clearly wrong. The appropriate place for the approach taken in the decisions to be challenged, if it is to be challenged, is, in our view, in the High Court of Australia. 39 We conclude that prerogative relief should issue in this case if the Court is satisfied that the Full Bench misdirected itself as to the proper approach to be taken to the application for leave to appeal in a way which affected the exercise of its power to grant leave. 40 We have formed the view that the reasons of the Full Bench, read as a whole, do demonstrate that the Full Bench misdirected itself as to the proper approach to be taken to the application for leave to appeal in a way which affected the exercise of its power to grant leave. It seems to us that either the Full Bench approached the application for leave to appeal on the basis that the Commissioner had exercised a discretion that was reasonably open to him, or it fell into an error of law as to the circumstances in which it would be appropriate for leave to appeal to be granted with the result that it asked itself the wrong question (ie whether the conclusion of the Commissioner was one reasonably open to him). 41 We would order as follows: 1. That a writ of certiorari issue to the Commission removing into this Court and quashing the decision of the Full Bench of the Commission of 4 September 1998 in matter no C33992/98, being an application by the present applicant for leave to appeal pursuant to s 45 of the Act against a decision of Commissioner Simmonds dated 21 May 1998 in matter no U33326/97.

2. That a writ of mandamus issue to the Commission, directing it to hear and determine matter no C33992/98 in accordance with law.

3. That the matter accordingly be remitted to the Commission. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justices Branson and Marshall.

AND: THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION constituted by SENIOR DEPUTY PRESIDENT POLITES, SENIOR DEPUTY PRESIDENT WATSON AND COMMISSIONER GAY (respectively constituting a Full Bench of the Australian Industrial Relations Commission)

42 On 31 May 1999 Hayne J, in the High Court, remitted to this Court proceedings commenced by the appellant, seeking writs of mandamus and certiorari directed to the first respondent in connection with proceedings between the appellant and the second respondent. 43 In October 1995 the appellant commenced employment with the second respondent. On occasions he carried out work as a welder. He received medical advice that he had a weakness in his left eye and decided that he would prefer not to do welding work. Some weeks prior to 1 October 1997, he was transferred to another job which did not involve welding, but on 1 October 1997, he was told by the factory manager that he was once again required to weld. There is some dispute as to whether he was told that this arrangement would be temporary or permanent. He believed it to be permanent. On the following day, when specifically requested to weld, he declined to do so and terminated his employment. He subsequently asserted that the termination was "at the initiative of the employer" and claimed relief pursuant to subs 170CE(1) of the Workplace Relations Act 1996 (Cth) ("the current Act"). Those proceedings were heard and determined by Commissioner Simmonds, the outcome being unfavourable to the appellant. He then sought leave to appeal to the Full Bench, which was declined. It is that decision which is the subject of the present application for prerogative relief.

44 In Craig v South Australia (1995) 184 CLR 163 at 179 the High Court described invalidating error by a tribunal (as opposed to a court) for the purposes of prerogative relief as follows:

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is therefore affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

45 This approach necessitates the identification of the duty undertaken by the second respondent in considering the application for leave. That matter was addressed by the High Court in Re Coldham; ex parte Brideson (1990) 170 CLR 267 at 275 as follows:

In determining whether leave to appeal should be granted under s 88F(1), it would have been appropriate for the Commission to refuse leave unless it thought that there was an arguable case that the Registrar had acted upon a wrong principle, given weight to irrelevant matters, failed to give sufficient weight to relevant matters or made a mistake as to the facts or that the decision was plainly unreasonable or unjust. 46 Presumably, prerogative relief will be available in the present case, pursuant to the decision in Craig, if the Full Bench failed to apply the Brideson test in determining whether to grant leave to appeal from Commissioner Simmonds' decision.

47 Subsection 170CE(1) of the current Act relevantly provides:

Subject to sub-section (5), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment: (a) on the ground that the termination was harsh, unjust or unreasonable; (b) on the ground of an alleged contravention of section 170CK, 170CL, 170CM or 170CN; or on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a). 48 Section 170CD(1) provides that for present purposes, "termination or termination of employment means termination of employment at the initiative of the employer." It was accepted that in an appropriate case, resignation may constitute termination "at the initiative of the employer". Such an approach is justified by the decision of the Full Court of the Industrial Relations Court in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. In that case, the Court considered the position of an employee suspected of dishonesty who resigned rather than face a police investigation, a choice expressly offered by the employer. The Court concluded that pursuant to the Industrial Relations Act 1988 (Cth) (the "1988 Act"), such termination was at the initiative of the employer.

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. 50 The Court was there concerned with s 170EA of the 1988 Act. That section was part of Division 3 of Part 6A. Although that is also the relevant Division under the current Act, it is now in a quite different form. Nonetheless, both Acts reflect aspects of the Termination of Employment Convention 1982, adopted by the International Labour Organization. In the 1988 Act, s 170CB provided that: "An expression has the same meaning in this Division (Division 3) as in the Termination of Employment Convention". In the current Act, Convention definitions are applied only in subdivisions C, D, and E of Division 3, and not in subdivision B, with which I am presently concerned. However, the definition of "termination or termination of employment" to which I have already referred (which applies to subdivision B) reflects a provision of the Convention. Division 3 of the current Act is certainly aimed at giving effect to the Convention (see par 170CA(1)(e)), but in view of the differences between the provisions in the 1988 Act and those in the current Act, it is not appropriate to assume that the decision in Mohazab dictates the way in which the latter provisions should be construed.

51 The appellant submits that for the purposes of par 170CE(1)(a) there must be a two-stage enquiry:

· as to whether the termination was at the initiative of the employer; and if so,

· as to whether the termination was harsh, unjust or unreasonable.

52 To answer the first enquiry, it is necessary to determine the meaning of the expression "at the initiative of the employer". In Mohazab, the Court referred to the definition of the word "initiative" in the New Shorter Oxford Dictionary which is as follows:

The action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.

53 It also referred to the definition in the Concise Macquarie Dictionary which is as follows:

1. an introductory act or step; leading action; to take the initiative. Readiness and ability in initiating action; enterprise: to lack initiative. 54 Prima facie, one would expect the expression "at the initiative of the employer" to describe dismissal. Another aspect of subs 170CE(1) suggests such a limited meaning. Pursuant to par 170CE(1)(b) a terminated employee is also entitled to apply for relief if there has been "an alleged contravention of s 170CK, 170CL, 170CM or 170CN …". Section 170CK deals with termination for reasons such as absence from work because of illness or injury, trade union membership or non-membership, seeking office as a representative of employees or filing a complaint against an employer in connection with a violation of the law. Section 170CL is concerned with mass termination. Section 170CM prescribes obligatory periods of notice of termination. Section 170CN is concerned with termination in breach of an order pursuant to s 170FA. Whilst termination in the circumstances contemplated by ss 170CK and 170CN might arguably be brought about by the employer provoking a resignation, ss 170CL and 170CM could have no sensible application where the employee has resigned. The words "at the initiative of the employer" can reasonably be read as describing dismissal in the usual sense. There is nothing in Division 3 or in the Convention, as far as I can see, which compels a different approach. 55 Nonetheless, if, as suggested by the decision in Mohazab, a resignation may be "at the initiative of the employer" it is necessary to identify precisely the definition of "initiative" which leads to this result. The word may be used to describe an action intended to cause a particular result, although it may also be used to describe an action which produces any result, intended or otherwise. The definitions quoted above demonstrate this. For present purposes, the former meaning would produce a more workable result than the latter. If an employer decides to provoke a resignation and takes steps which produce that result, there is little difficulty in treating the resignation as employer-initiated and in examining the circumstances which led to the employer's decision so to act, with a view to determining whether that termination was harsh, unjust or unreasonable, or contrary to the provisions of ss 170CK, 170CL, 170CM or 170CN. If resignation was not the employer's objective, it is difficult to see how any termination can be so assessed. For present purposes, such an assessment would involve a consideration of whether it was harsh, unjust or unreasonable that the appellant was put into a position which resulted in his resignation. This does not appear to be the test contemplated by par 170CE(1)(a). Section 170CA demonstrates that Division 3 is concerned with regulating termination at the initiative of the employer. It is not intended as a mechanism for resolving work-place differences, which mechanism may be invoked by the employee choosing to resign.

56 If the word "initiative" is not to be construed as involving an element of intention on the part of the employer, then it must at least require a causal relationship between some action or inaction on the part of the employer and the employee's decision to resign. Causal relationships are often matters of degree. The extract from Mohazab cited above demonstrates a certain ambiguity in this regard. Their Honours suggested that the employer's act must result "directly or consequentially in the termination …". This requires a causal link between the conduct of the employer and the employee's decision to resign. Their Honours then suggested that the test required that "the employment relationship is not voluntarily left by the employee". This implies rather more than mere causation. In the last sentence of the extract, their Honours appear to have adopted a "but for" test, stating:

That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. 57 Thus three possible causation tests are posed in this short extract from the judgment, including: · Direct or consequential causation; · Compulsion to resign; or · A "but for" test. 58 When an employee resigns, he or she has usually reached a decision, taking into account many factors. Some may be entirely personal and unrelated to any "misconduct" on the part of the employer. An employee may resign because he or she has been passed over for promotion, has not received a pay increase, has a more attractive job offer or, as in the present case, finds aspects of his or her work uncongenial or undesirable. There can be any number of reasons for an employee to feel dissatisfaction, and there is always the possibility that it will lead to resignation. That dissatisfaction will often have been arguably caused (in part or in whole) by a decision or decisions of the employer. If "initiative" implies only causation, it will usually be arguable that the employer has "initiated" the termination. Although it may be good managerial practice to offer job satisfaction, it cannot be guaranteed. Many dissatisfied employees resign. The process prescribed in Division 3, which depends on termination, is too cumbersome to have been intended to resolve issues of that kind. I do not accept that any employee whose decision to resign was, to some extent, motivated by action or inaction on the part of the employer, may initiate proceedings pursuant to subs 170CE(1). Mere "causation" or "motivation" will not satisfy the requirement that the termination be at the initiative of the employer. For similar reasons, I doubt the efficacy of any "but for" test. 59 As to "compulsion", it is difficult to contemplate circumstances in which it can be said that an employee has been compelled to resign, but not dismissed, unless one accepts the somewhat bizarre reference in the course of argument to an employer holding a gun to the employee's head. Mohazab and the present case are examples of circumstances in which the relevant employee may well have seen it as in his best interests to resign, but it is hard to see how it can be said that either did not leave voluntarily. I wish to add only that the proper construction of the phrase "at the initiative of the employer" may depend upon an analysis of the prescribed circumstances in which relief may be granted and the overall purpose of Division 3. I suspect that the construction exercise may be made more difficult if one is too firmly wedded to the bifurcated approach urged by the appellant in this case. 60 Unfortunately, these questions were not argued before us, and so it is not appropriate that I seek finally to resolve them. I consider that this matter must, in any event, be remitted for reconsideration. Hopefully, the Full Bench will receive more assistance.

61 The key to Commissioner Simmonds' decision is contained in the following paragraphs at AB 14:

Moreover, I accept that employees of the company are required to be multi-skilled. This, combined with Mr Pawel's acceptance of welding duties over the two years of his employment, lead to the conclusion that there was no breach, or threatened breach of an essential term of the employment contract contained in the requirement that Mr Pawel undertake welding duties. Accordingly I am unable to find that the employment was terminated at the initiative of the employer. Therefore the application under s 170CE of the Act is dismissed.

It appears to us that the approach taken by Simmonds C was to examine the conduct which was said to have caused the applicant to leave the employment of the respondent and to conclude following that examination that there was no conduct on behalf of the respondent which resulted in a 'breach or threatened breach of an essential term of the employment contract contained in the requirement' to undertake welding duties. In expressing his conclusion in this way we do not take Simmonds C to be applying any different test than that which would have been applied in the Mohazab case. If an employer's instruction is consistent with the terms and conditions of an employee's contract of employment and the instruction is a reasonable one and the employer insists upon it then in our view the giving of the instruction cannot be regarded as the employer acting in such a way as to leave the employee in a position where he felt he had no other option but to leave the employment. Put another way we do not think the test applied by Simmonds C was in its operation is consistent with Mohazab. The real question is whether the instruction was a reasonable one. 63 The words "is consistent" in the second last line should presumably be "inconsistent".

64 The Full Bench then dealt with the reasonableness of the second respondent's instruction as follows:

Mr McDonald's next argument was that Simmonds C's conclusions expressed in the dot points on page 3 of his decision which were used to support a finding that in effect the respondent's request to weld 'full-time' was reasonable were not open to him on the evidence. We have carefully considered these submissions and the passages of transcript to which we were referred by Mr McDonald which we do not propose to set out here. In our view, Simmonds C's conclusions in the following dot points were reasonable open to him on the evidence. · the applicant's duties had, for almost the whole of his employment, involved welding duties; · there was no objective threat to his health and safety involved in the requirement that he undertake welding, as long as it was not on a continuous basis; · the welding he was required to do was not continuous, in that it was not a full-time requirement. On rare occasions he could have been required to weld for about 70 per cent of his time (on my estimate, following what was shown in the videotape recording taking into account the applicant's own evidence). · until some weeks before his termination, while unhappy with welding duties he had carried them out without apparent difficulty; · the company required multi-skilled employees; … · there is no third party evidence of the applicant suffering stress as a result of the requirement to weld. The evidence from Mr Corbett is to the contrary. Moreover, the applicant did not go to a medical practitioner, but to his solicitor in response to the alleged stress. On the basis that these findings were reasonably open to Simmonds C his conclusion that he was unable to find that the employment was terminated at the initiative of the respondent was also one reasonably open to him. In short, we do not believe that in his approach to the matter or in his conclusions in relation to the evidence, Simmonds C made any error of a character which would justify the grant of leave to appeal. 65 The approach taken by the Full Bench involved two steps. The first was to conclude that Commissioner Simmonds had applied a test which was consistent with the decision in Mohazab, based upon the "reasonableness" of the instruction which led to resignation. The second step was to conclude that the Commissioner had found that the instruction in question was reasonable, that such a finding was open to him and that it was therefore not liable to be upset on appeal. With all respect to the Full Bench, Commissioner Simmonds clearly based his decision upon his view that "there was no breach, or threatened breach of an essential term of the employment contract …". Whatever may be the meaning of the phrase, "at the initiative of the employer", it does not require breach, or threatened breach of the contract of employment. There would be little reason to offer statutory protection to employees against such action as there would be a remedy in contract. It is true that without statutory intervention, re-instatement would rarely, if ever, be available as a remedy, but Division 3 obviously does much more than remedy that deficiency in the common law, if such it be. Paragraph 170CE(1)(a) is obviously designed to give relief from a termination which is contractually valid. Paragraph 170CE(1)(b), with ss 170CK, 170CL, 170CM and 170CN, also has the effect of modifying the contractual right to dismiss. It cannot be argued that subs 170CE(1) is limited in its operation to termination initiated by the employer's breach, or threatened breach of the contract of employment. 66 If Commissioner Simmonds applied the incorrect test, the fact that it would have been open to him to dismiss the claim, had he applied the correct test, is quite irrelevant. The position may have been otherwise had the Full Bench concluded that the Commissioner, applying the correct test, must have dismissed the proceedings in any event. In argument before us, counsel for the second respondent submitted that the evidence was such that the appellant must fail, whichever test is applied, but this submission was, in my view, made without any attempt to formulate the appropriate test. As I have said, it would be inappropriate for this Court to propose a test in the absence of proper argument. It seems that the Full Bench will have an opportunity to do so.

1. That a writ of certiorari issue to the Australian Industrial Relations Commission (the "Commission"), removing into this Court and quashing the decision of the Full Bench of the Commission of 4 September 1998 in matter no C33992/98, being an application by the present applicant for leave to appeal pursuant to s 45 of the Workplace Relations Act 1996 (Cth) against a decision of Commissioner Simmonds dated 21 May 1998 in matter no U33326/97.

2. That a writ of mandamus issue to the Commission, directing it to hear and determine matter no C33992/98 in accordance with law.

3. That the matter accordingly be remitted to the Commission. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate: Dated: 10 December 1999 Counsel for the Applicant: Mr G. Devries

Solicitor for the Applicant: McDonald Murholme

Counsel for the Second Respondent: Mr J.A. Strahan QC and Mr D.P. Martin

Solicitor for the Second Respondent: D.E. Phillips

Date of Hearing: 8 November 1999

Date of Judgment: 10 December 1999