Fair Work Act 2009_

s.394 - Application for unfair dismissal remedy

Technical and Further Education Commission T/A TAFE NSW

Application for unfair dismissal remedy - remedy.

[1] In an earlier decision in Pykett v Technical and Further Education Commission T/A TAFE NSW [2013] FWC 4982, I concluded the termination of the employment of Lynda Pykett ("the applicant") by the Technical and Further Education Commission T/A TAFE NSW ("the respondent") was not a genuine redundancy and the dismissal was harsh, unjust and unreasonable.

[2] Written submissions have since been lodged on the question of remedy.

[3] The applicant seeks reinstatement, an order maintaining her continuity of employment with the respondent and an order with respect to remuneration lost between the date of dismissal and the date of reinstatement.

[4] After drawing attention to the relevant statutory provisions of s.391(1) of the Fair Work Act 2009 ("the Act"), the applicant submitted there are very strong grounds for reinstatement. In this regard, reference was made to matters such as the applicant's age and length of service, and other matters such as the likely difficulties the applicant would encounter in finding alternative employment. It was submitted reinstatement would be a very valuable remedy indeed for the applicant.

[5] The applicant's submissions accepted, for present purposes, that an order could not be made reappointing the applicant to the position in which she was employed immediately before her dismissal. In light of this, the applicant submitted an order pursuant to s.391(1)(b) of the Act may be made appointing the applicant to another position on terms and conditions no less favourable than those on which she was employed immediately before dismissal. The applicant submitted the primary basis on which the respondent suggests that reinstatement would not be appropriate is because it is said positions have not been identified to which she could be reinstated or that the positions that have been identified lack security of employment.

[6] The applicant submitted the respondent's approach could not be accepted in this regard. First, the applicant had identified established and vacant positions into which she could be redeployed and that were appropriate for reinstatement. Second, it was submitted, the submissions for the respondent misunderstand the Commission's powers with respect to reinstatement and incorrectly assume identification of a particular job vacancy is a prerequisite to an order for reinstatement.

[7] The applicant submitted an order under s.391(1)(b) of the Act may involve, but does not require, the identification of a particular "position" to which the employee is to be appointed: Anthony Smith & Associates Pty Limited v Sinclair (1996) 67 IR 240 at 244 ("Sinclair").

[8] In this regard, the applicant referred also to Sherman v Peabody Coal Ltd (1998) 88 IR 408 at 425-426; Steggles Limited v West (Watson SDP, Williams SDP and Smith C, Print S5876, 11 May 2000) at [18]; Phillis v Australian Department of Defence (2003) 125 IR 388 at [31]- 32]; Smith v Moore Paragon Australia Pty Ltd [2004] AIRC 57; (2004) 130 IR 446 at [11 ]-[15]; Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661; (2004) 142 FCR 296 at [36]- [37].

[9] The applicant submitted the respondent is a very large employer with capacity, if not restricted by the artificially and unreasonably constrained approach prescribed by the Managing Excess Employees policy, to find appropriate work or create an appropriate position for a long-standing and skilled employee such as the applicant. There is no reason, it was submitted, for the Commission to conclude it would be inappropriate for the respondent to be required to reinstate the applicant to another position on terms and conditions no less favourable than those on which she was employed immediately before her dismissal. In any event, there was clear evidence of established and vacant positions in which the applicant could be employed, including, but not limited to, as at least three established, vacant positions of Technical Officer Scientific 1/2 at the respondent's Ultimo campus in which the applicant could be engaged, with some such positions being filled by agency staff with the result the work of those positions is clearly required by the respondent. Moreover, there was evidence of supervisory and foreperson positions at the Meadowbank campus that were substantively vacant, and the applicant could be engaged in that work.

[10] The applicant also sought an order maintaining the continuity of employment and with respect to lost remuneration, but did not develop any reasons in such respects in the submissions.

[11] The applicant addressed various matters in the submissions as to an order for compensation under s.392 of the Act in the event reinstatement were not ordered.

[12] The respondent noted the applicant seeks reinstatement by appointing her to another position on terms no less favourable, albeit without the Commission specifying what this other position must be, other than that the unidentified position should be on terms not less favourable than the applicant's original position.

[13] In this regard, the respondent submitted there is no power to make a non-specific order; even if there is power, a non-specific order ought not be made considering compliance and enforcement issues; and, in any event, there was no evidentiary basis upon which any such order could be made.

[14] As to power, the respondent's submissions referred to various provisions in the statutory framework. The respondent submitted that "curiously" s.391(1) of the Act does not expressly require consideration of the appropriateness of a reinstatement order, in contrast with orders for continuity, lost pay and compensation. The respondent submitted s.391 of the Act implicitly requires the Commission to form a view as to whether an order for reinstatement is appropriate having regard matters such as the presumed intention of the Parliament and the broader statutory framework, including ss.577-578 of the Act.

[15] The respondent's submissions next referred to various provisions of the Act generally concerning matters relating to enforcement and penalty, namely, ss.405, 544, 545(2)(a), 545(2)(b), 545(2)(c), 546 and 550. In this respect, the respondent drew attention to Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539, [2005] HCA 22 ("Blackadder"), where the High Court dealt with enforcement proceedings arising from an order that an employer reinstate a dismissed worker arising under provisions similar to those now contained in the Act.

[16] The respondent noted the applicant relied on the line of authority stemming from Sinclair. As to this, the respondent submitted that although it previously might have been considered permissible and sufficient to order the restoration of the employment (i.e. the contractual terms) and to leave the residual matters (i.e. the details about the position) to the employer, such an approach cannot stand in light of the reasoning in Blackadder and the specific terms of s.391 of the Act. In this regard, the respondent submitted s.391 of the Act mandates that an order for reinstatement can only be an order pursuant to either s.391(1)(a) or s.391(1)(b) of the Act.

[17] The respondent submitted that, on the effect of the applicant's approach, s.391(1)(b) of the Act empowers the Commission to make an order that the employer "reinstate the person by [selecting for itself or creating another position and then] appointing the person to [that other] position". This would be so notwithstanding the observations of, for example, Hayne J in Blackadder at [44] that more is required of an employer ordered to reinstate an employee than the recreation of the contractual nexus.

[18] If the Commission did not specify a position, the submissions continued, this would leave unresolved the question of whether the position to which the employee is appointed is actually on terms that are no less favourable, giving rise to corresponding compliance-type considerations identified in Blackadder - with the result the employer, and subsequently a court, may have to consider whether the position identified or created is less favourable. Moreover, whatever view the employer forms about matters will not finally determine such matters given the employer's compliance is open to challenge or scrutiny for up to six years. By contrast, if the Commission orders the employer to reinstate the person to another specified position, the Commission brings relative finality to matters. In this regard, the respondent referred to item 1557 of the Explanatory Memorandum to the Fair Work Bill 2008, which, it was submitted, makes clear it is the Commission that determines the position, not the employer.

[19] The respondent submitted the applicant has urged an interpretation of s.391 of the Act by which the Commission can divest itself of its statutory requirement to make an order that complies with s.391, whereas a consideration of various aspects of Blackadder lead to the view that in determining the application before it the Commission necessarily makes an assessment of the terms and conditions of the previous employment with a view to making an assessment as to reinstatement. The proper application of s.391(1)(b) of the Act, the respondent submitted, is that, if that section is activated, the Commission must identify the position to which the employer becomes obliged, under risk of sanction, to appoint the employee, and it is the Commission which finally determines whether that particular position is on terms and conditions no less favourable.

[20] The respondent's submissions continued in relation to further matters concerning certainty in compliance and of the potential consequences of any failures in such respects. The matters outlined in this regard included the presumed intention of the Parliament and reference to various authorities, and considerations that may arise thereto. The respondent submitted it would be, if nothing else, undesirable to make an order that carries with it the need for the respondent to assume responsibility for identifying matters that would ensure it was not in potential breach of any order.

[21] The respondent further referred to various matters under the head of "Jurisdictional facts". In so doing, the submissions referred to Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; (2010) 193 IR 244 at 249, [2010] NSWCA 47 at [19] ("Casari") which, among other matters, considered the question of the suitability of a position within the meaning of s.89(2) of the Industrial Relations Act 1996 (NSW). The respondent submitted Casari is apposite for consideration, despite the different statutory provisions, in as much as what the applicant urges is that the Commission can and should make an order for reinstatement to no particular position at all without any consideration of whether the reinstatement is appropriate - which must be the logical effect of the applicant's submission. The respondent submitted the Commission should not fall into jurisdictional error of a type considered in Casari.

[22] The respondent submitted that even if all its other jurisdictional and discretionary arguments were rejected, it is logically inescapable the Commission will not have satisfied itself that such a reinstatement order is appropriate or any such order will result in the applicant actually being appointed to a position on terms and conditions that are actually no less favourable. In this regard, the onus necessarily lies with the applicant to establish the order she seeks is within the power of the Commission; and the onus cannot and will not be met without identification of the position to which the Commission could make the order.

[23] The respondent further submitted that the applicant's interpretation of s.391 of the Act is inconsistent with the provisions of s.389(1), a section which recognises a case of genuine redundancy occurs when the employer no longer requires the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise - thereby implicitly and necessarily recognising the employer's prerogative to allocate or organise jobs as part of the scheme of the organisation. It was submitted such recognition must extend to organising jobs or parts of jobs to be performed by casual employees or agency employees in circumstances where redundancy due to outsourcing is an obvious and well-recognised example of the exercise of this managerial prerogative. The respondent submitted it would be inconsistent with the recognition contained in s.389(1) of the Act to apply s.389(2) and s.391(1) together such as to require an employer to "unchange" its structure and collect other functions, duties and responsibilities and entrust them to a particular employee. That is, the respondent submitted, assuming s.389(1) of the Act recognises a prerogative to outsource labour, it would be inconsistent with that recognition to order an employer to reinstate a person to do all or part of job merely because the whole or part of that job was not being performed by any employee but by contract labour.

[24] The respondent next referred to IGA Distribution (Vic) Pty Ltd v Nguyen (2011) 212 IR 141, [2011] FWAFB 4070 50 ("Nguyen") in submitting that although the Full Bench did not consider the possibility of an order that does not specify the position to which the person is reinstated, the findings are relevant and, with this caveat, binding.

[25] The respondent's submissions noted I had concluded at [33] of my earlier decision that it is not necessary, for the purposes of s.389(2) of the Act to determine which position, specifically, would have been appropriate for redeployment of the applicant. The respondent submitted it is important to note s.391(1) contains a separate and different test that applied to different periods of time. That is, the test under s.389 of the Act considers the reasonableness of redeployment at the time of dismissal, whereas the test in s.391 considers reinstatement at the time the order is made; and there were other differences, including that s.391(1)(b) would in all likelihood prevent reinstatement to a lesser position.

[26] The respondent's submissions referred in detail to various aspects of the evidence and submissions in contending that none of the specific positions identified by the applicant would be appropriate for any reinstatement order. As to positions at the Ultimo campus, the respondent submitted there was no evidentiary basis upon which the order sought by the applicant could be properly founded. Further, if the Commission were inclined to order reinstatement to Ultimo, the practical effect is the applicant will either displace a permanent employee, or would or could well in the short-term future displace another permanent employee if she is not made excess herself. The submissions otherwise addressed why the evidence was overwhelmingly against reinstatement to certain supervisory and foreperson positions at Meadowbank.

[27] The respondent did not make any relevant submissions in relation to maintaining the continuity of employment or with respect to lost remuneration, being matters I have earlier noted were not developed in the applicant's submissions.

[28] The respondent otherwise addressed various matters in the submissions in relation to an order for compensation under s.392 of the Act.

Applicant's submissions in reply on reinstatement

[29] The applicant's submissions in reply to those of the respondent reasserted the applicant should be reinstated by an order under s.391(1)(b) of the Act appointing her to a position on terms and conditions no less favourable than those on which she was employed immediately before dismissal either to one of the specific positions identified in the evidence or to another position within the respondent's operations performing work as a Technical Officer, Scientific to be determined by the respondent.

[30] The applicant submitted the respondent's submissions that the second option is not available to the Commission cannot be accepted and is based upon a misreading of the cases. The applicant's submissions again referred to the series of decisions on which reliance was placed and which, it was submitted, makes it clear the Commission is not constrained, in reinstating an employee to identified, existing vacant positions. Those decisions, it was further submitted, arose from the application of legislative provisions that are relevantly identical to s.391(1) of the Act, including s.170EE(1) of the Industrial Relations Act 1988 (Cth) and s.170CH of the Workplace Relations Act 1996 (Cth). The applicant submitted the rationale of the decisions to which reference was made in the applicant's submissions is clear. That is, if reinstatement depended on the identification of an existing vacancy, an employer readily could defeat reinstatement by appointing a new employee to the position in question or applying a staff freeze (as the respondent has done), with the result the beneficial purpose of the unfair dismissal provisions would be defeated. It was submitted the same rationale holds for the relevant provisions of the current Act.

[31] As to the submissions by the respondent that decisions such as Sinclair cannot stand with Blackadder, the applicant submitted the respondent's submissions were wrong as no inconsistency at all arises between the approach of the High Court in Blackadder and the approach in cases such as Sinclair. That is, Blackadder did not arise from an order reappointing the employee to another position, but, rather, reinstatement to the former position. No question arose in Blackadder as to whether it was necessary for an identified vacancy to be found before a reinstatement order could be made, and the substance of the case was whether the reinstatement order required the employer to provide actual work to the employee or merely reinstate the employee's contractual position.

[32] The applicant's submissions continued that nothing was said in Blackadder inconsistent with the approach long-adopted by industrial courts and tribunals, and that aspects of the judgment made clear that reappointment to the position in which the employee was employed immediately before the termination means "to do the work on which the employee was engaged"; that the reference to "position" means no more than "the work which the person filling that position does"; and that reinstatement is not dependent upon there being a "formal position" or "office".

[33] The applicant submitted that on the reasoning discerned from Blackadder, an order for reinstatement does not depend on the identification of a formal position, much less a vacancy - this being an approach entirely consistent with Sinclair. Further, the dissenting judgment of Moore J in the proceedings before the Full Federal Court in Blackadder, whose judgment was "vindicated" in the High Court, expressly referred to and extracted the very same passage from Sinclair relied on by the applicant to support her submissions. The applicant submitted that having regard to the dissenting judgment of Moore J and the position accepted by the High Court in Blackadder, the respondent's submissions as to there being any inconsistency between Blackadder and Sinclair should be considered as being without merit.

[34] The applicant submitted Casari is not relevant, given the statutory provisions there under consideration differ in relevant respects from those in the Act and, in any event, the issue before the NSW Court of Appeal in that case was whether the Industrial Relations Commission of NSW could reinstate an employee to no position (existing or created) on condition there be an immediate resignation. The applicant submitted that despite the respondent's reliance on Nguyen, that decision does not assist the respondent because the Full Bench concluded at [49]-[50] "reinstatement should be to a position in another warehouse" on the basis it was satisfied that the applicant "could be employed in the other warehouses at Laverton"; and there is no suggestion this was premised on the existence of an identified vacant position at the other warehouses.

[35] The applicant's submissions in such respects contended that, for the foregoing reasons, it is open to the Commission to order the applicant be reinstated to a position performing work as a Technical Officer, Scientific on terms and conditions no less favourable than her previous employment. Moreover, the Commission can be satisfied, on the basis of the evidence in the proceedings and the size of the respondent's operations, that the respondent can accommodate the applicant. In any event, the applicant had identified particular positions to which she could be appointed at Ultimo and Meadowbank campuses, including a number of established, vacant positions at Ultimo campus as Technical Officer, Scientific 1/2 into which the applicant could be reinstated, some of which were being filled by agency staff; and supervisory and foreperson positions at Meadowbank are similarly substantively vacant.

[36] The applicant submissions otherwise described as being misplaced the respondent's submissions concerning its reliance on certain evidence going to matters about funding. The applicant contended it is clear funding is available for the positions at Ultimo and work to perform since agency staff are being engaged and paid to undertake that work. The applicant's submissions also described as theoretical other aspects of the evidence concerning the respondent's business reform plans and further submitted that such matters could not, in any event, provide a barrier to reinstatement of an employee who has been unfairly dismissed. The applicant's submissions described as being without foundation the respondent's reliance on the evidence adduced in its case concerning certain supervisory and foreperson positions at Meadowbank. The submissions put were that the witness concerned had neither supervised nor worked with the applicant, and had neither consulted anyone in forming her opinions nor provided the applicant any opportunity to respond. It was further submitted the true reason for not considering redeploying the applicant to either of the Meadowbank positions was that the witness did not believe it appropriate for a person to be appointed to such positions for a short period on a false reading of the Managing Excess Employees policy.

[37] The applicant was formerly employed as a Technical Officer 1/2, Scientific, at the Meadowbank campus. In my earlier decision (now the subject of a pending appeal), I concluded, for reasons set out at [30]-[35], that the termination of employment was not, within the meaning of s.389 of the Act, a genuine redundancy; the dismissal was harsh, unjust and unreasonable; and the applicant should have an unfair dismissal remedy in her favour.

[38] At the time of the dismissal, the applicant was being managed under the Managing Excess Employees policy the respondent applied in that regard and, I have also concluded in my earlier decision, her former position then no longer existed.

[39] Reinstatement is the primary unfair dismissal remedy under the Act. The remedy the applicant seeks is an order pursuant to s.391(1)(b) of the Act by way of appointment to another position on terms and conditions no less favourable than those on which she was employed immediately before the dismissal, being an order comprehended by s.391 of the Act as constituting an order for reinstatement.

[40] The line of authority relied on by the applicant in seeking reinstatement constitutes what I accept may be considered as settled law apposite to this application and the remedy the applicant seeks in relation to an order for appointment to another position on terms and conditions no less favourable than those on which she was employed immediately before the dismissal. On a consideration of the submissions of the applicant and the respondent, it does not seem to me there is any cause to conclude that in the wake of Blackadder an order for reinstatement pursuant to s.391(1)(b) of the Act of the type for which the applicant contends would not be available as an unfair dismissal remedy.

[41] I am satisfied as to having power to make an order of the type the applicant seeks. I am also satisfied an order should be so made. In this regard, I have considered matters including the applicant's age and 32 years' service with the respondent. The particular occupational focus of the applicant's experience in her employment over more than three decades with the respondent might perhaps be considered to weigh against her finding alternative employment other than with the respondent itself. I accept the submissions the applicant would be likely to encounter difficulties in finding alternative employment and, in this regard, the applicant's age again arises.

[42] Considering the circumstances that led to my conclusion the applicant had established a case her dismissal was not a genuine redundancy and the dismissal was harsh, unjust and unreasonable, it seems to me an order for reinstatement is pursuant to s.391(1)(b) of the Act is apt and, indeed (noting the parties' submissions in such respects), appropriate.

[43] I note also the size of the respondent's operations in accepting the applicant's submissions the respondent can (and ought be expected to) accommodate the applicant's reinstatement pursuant to the order.

[44] I do not accept the respondent's submissions that making an order under s.391(1)(b) of the Act to reinstate the applicant would effectively displace recognised managerial prerogatives concerning the use of external staffing resources. The termination of the applicant's employment from her former position at Meadowbank was not brought about by any reason associated with outsourcing. Similarly, I do not accept the submissions for the respondent which were that making an order for which the applicant contends would, in effect, be bad for uncertainty. The order requires reinstatement as a Technical Officer 1/2, Scientific, on terms and conditions no less favourable than those on which the applicant was employed immediately before the dismissal. If any issue arises about compliance and enforcement with the order for reinstatement in this regard (or indeed an order in any proceedings concerning an order for an unfair dismissal remedy), such matters would not be determined by the Commission in these proceedings.

[45] The matters relied on in the respondent's submissions have not dissuaded me from my conclusion that reinstatement is the remedy the applicant should have by way of an order in her favour.

[46] No developed submissions were made in relation to s.391(2) of the Act concerning the applicant's claim for an order to maintain continuity of her employment or in relation to s.391(3) as to an order to restore lost pay (although the submissions for both the applicant and the respondent otherwise addressed the remedy of compensation under s.392 of the Act).

[47] There is insufficient material before me to consider whether any such orders should be considered to be appropriate. While I do not say that the applicant should not have any order in her favour in relation to either s.391(2) or s.392(3) of the Act, the payments already received by the applicant obviously will need to be considered. Moreover, if an otherwise seemingly unremarkable order to maintain the applicant's continuity of employment were made, as is typically often the case in conjunction with an order under s.391(1) of the Act, it may have the result that if the applicant were in the future the subject of a voluntary or forcible redundancy she may then again become entitled to redundancy payments on the basis of continuous service in circumstances where the applicant has received redundancy payments in connection with the termination of employment that is this subject of these proceedings.

[48] There is nothing before me in the parties' submissions as to remedy to inform my thinking as to whether any orders under either s.391(2) or s.391(3) of the Act, or both, might be considered to be appropriate. I direct the parties to confer concerning the applicant's application for orders in such respects.

[49] In view of my conclusions as to reinstatement, it is otherwise not necessary to consider the matters addressed in the parties' submissions in relation to a remedy of compensation under s.392 of the Act.

[50] As to remedy, I have concluded the applicant should be appointed by the respondent, pursuant to an order under s.391(1)(b) of the Act, to a position as Technical Officer 1/2, Scientific, no later than 21 days from today's date. An order thereto will issue in conjunction with this decision.

[51] The matter will otherwise be listed for mention/directions at 9.30am on Friday, 25 October 2013 in relation to matters concerning s.391(2) and s.392(3) of the Act.

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