Case: Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603
Outcome: cited
On 10 May 2002, Madgwick J made a declaration that the Third Respondent had breached the order of Commissioner Redmond dated 29 March 2000 by failing to reappoint Mr Blackadder to the position he held immediately before the termination of his services on 5 October 1999. Madgwick J imposed particular penalties upon the Third Respondent and made other orders for the payment of certain monies. Madgwick J concluded that a reinstatement order in exercise of the power conferred by the Act impliedly involved a return of the employee to the workplace. In the light of this finding, Madgwick J felt it unnecessary to decide whether the AWA contained an implied contractual obligation requiring the Third Respondent to provide the applicant with actual work. See Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603. 228 The Full Court, allowed an appeal in part by the Third Respondent although Tamberlin and Goldberg JJ took a different view of the reinstatement power under the Act to that of Moore J. 229 The question of the order to be made by Madgwick J by way of injunctive relief was unable to be resolved between the parties and accordingly, Madgwick J on 21 May 2002 made further orders and published a supplementary judgment. The order of 21 May 2002 directed the Third Respondent to reinstate the applicant to the position in which he was employed prior to the termination of his employment, namely, a boner performing chilled boning work in that part of the respondent's premises known as the big boning room. 233 Ultimately, on 27 April 2005, the High Court set aside the orders of the Full Court of the Federal Court and allowed in part an appeal by Mr Blackadder. The High Court concluded that the scope of the power conferred by s 170CH(3) of the Act was broader than simply a reinstatement of the contract of employment and extended to a restoration of the employment situation as it existed immediately before the termination. 'So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination' : Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 per McHugh J at [14]. 234 On 3 September 2002, Mr Blackadder received a letter dated 2 September 2002 in these terms: 'Dear Stephen, In accordance with our notice given on 21 August 2002, we now advise that there shall not be sufficient stock to kill on Monday 2 nd September 2002. You shall not be required to work Monday 2 nd September 2002. The lack of cattle suitable for our customers, caused by seasonal factors including the current drought and subsequent drop in cattle numbers, has caused this closure. The AMIEU has been appropriately advised. In accordance with your AWA, you are entitled to request payment of your entitlements, if you do make that request all your entitlements will be paid. If you wish to make this request please send your written application to our office. Yours faithfully S B Ramsey' 235 On 5 September 2002, Mr Blackadder responded in these terms: 'Ramsey Food Packaging Pty Limited Dear Sir, I refer to the notice of 2 nd of September 2002, which I received on the 3 rd of September 2002 advising that I would not be required for work Monday 2 nd September 2002. I did not receive any notice on the 21 st August 2002 and ask that you confirm when it is anticipated that there will be sufficient stock to resume work. I remain ready, willing and able to resume at that time and in the interim period request payment of my rostered days off. Yours faithfully S B Blackadder' 366 The respondents criticise the decision in AMIEU and Belandra on the basis that the evidentiary problem discussed by his Honour does not arise in the context of a lack of a vacancy because the applicant can readily show, by evidence, if there is a vacancy. The evidence would demonstrate that someone else was employed or there was an advertisement placed in a newspaper or other forum for a vacancy. Mr Hatcher puts it this way: 'It's not as if one needs to get inside the mind of the person making the decision to know what personally moved him, as it is when one alleges a prescribed reason' . The contention is that the applicant must adduce evidence of an actual, not theoretical, vacancy and demonstrate a refusal to employ that individual for that vacancy. Once that level of precision is made out, s 298V operates. In the absence of that evidence, s 298V has no role to play.