Williams v Australian Submarine Corporation [1996] IRCA 495

c and very able worker. In the absence of evidence of the Respondent's actual inability to reinstate the Applicant , this evidence must be given considerable weight. The Respondent has a large workforce. Work is currently available for which the Applicant is suitably skilled. I gained no picture that any significant disharmony amongst the workforce would arise if the Applicant was reinstated. The totality of the evidence regarding the economic factors affecting the Respondent and which could affect the reinstatement of the Applicant in my view favours reinstatement of the Applicant. I have no doubt that the Respondent can afford to reinstate the Applicant. I have had particular regard to the high level of overtime currently being worked at the Respondent's workplace and the Respondent's intention to maintain a level (albeit a lower level than currently being worked) of overtime into the future. It is important to recognise the different kinds of redundancy situations that arise in determining whether or not reinstatement is practicable and approriate . Where economic necessity is the immediate reason for redundancies then in most circumstances reinstatement cannot be ordered. But many redundancies now arise because of a decision by an employer to introduce perceived efficencies, technological change or restruturing of it's workforce. Respondents in this jurisdiction must present convincing evidence as to why reinstatement is impracticable and inappropriate. There is some likelihood of redundancies in 1997. The details in relation to redundancies in 1997 is dependant on some factors that are not yet known. The fact that the Applicant may well be included in those redundancies is not an overwhelming reason for not reinstating him now. Many of the Respondent's employees face the same uncertainty. The Applicant's performance and conduct in 1994 when he was selected for redundancy are not matters that in my view should be given great weight because .without a redundancy situation existing at the time the Applicant's employment would not have been terminated. In addition some of the causes for the changed conduct and performance of the Applicant in 1994.may well have now dissipated. It is also important to note the lack of evidence of an objective comparison of workers here in the Respondent's assessment of the Applicant's conduct and performance. . The Applicant is the only person who still seeks the remedy of reinstatement of those who were retrenched in December 1994. In my view the evidence before the Court supports the finding that reinstatement of this Applicant is both practicable and appropriate. I will therefore make the appropriate orders. I certify that this and the preceding # pages are a true copy of the reasons for my judgment. DATE OF HEARING : 3 & 4 OCTOBER 1996 FOR THE APPLICANT : MR S BLEWETT FOR THE RESPONDENT : MR C KOURAKIS