Case: Laz v Downer Group Ltd (2000) 108 IR 244
Outcome: cited
By virtue of s 664, the respondent bears the onus of proving that it did not terminate the applicant's employment for a proscribed reason, or for reasons that included a proscribed reason. Section 664 reads as follows: In any proceeding under s 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason ) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies). (Emphasis original) Section 664 is substantially identical to s 170CQ of the Act as it stood prior to the Workplace Relations (Work Choices) Act 2005 (Cth). The authorities on s 170CQ and predecessor provisions are therefore relevant: see, e.g., Laz v Downer Group Ltd (2000) 108 IR 244 (' Laz ') at 255 per Moore J. 9 Counsel for Mr Claveria argued that Pilkington had terminated Mr Claveria's employment in contravention of s 659(2)(e) of the Act, because Pilkington included in its reasons for termination the fact that: (1) Mr Claveria had recourse to competent administrative authorities; and (2) that he had filed a complaint against his employer involving alleged violation of laws or regulations. Relying on s 664, Mr Claveria submitted that it was incumbent on Pilkington to establish, on the balance of probabilities, that his complaint to the union was not one of the reasons for Mr Dunstan's decision to terminate his employment. 142 Whether there can be a satisfactory working relationship between Mr Claveria and the respondent's representatives in the event of reinstatement is a relevant consideration. Counsel for Mr Claveria referred me to various authorities concerning s 170EE of Industrial Relations Act 1988 as it then was: see Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 (' Perkins '); Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394; and Liddell v Lembke (1994) 127 ALR 342. This provision differed in terms from s 665. Some care must therefore be taken with these authorities. What they demonstrate, however, is that the Court has taken a reasonably robust attitude to an employer's claim of relationship breakdown with an employee following termination in contravention of a provision such as s 659(2)(e) of the Act: compare Perkins at 191. Moore J adopted much the same approach in Laz , in determining to make an order under s 170CR(1)(b) of the Act, which was in virtually identical terms to s 665. Although Mr Dunstan, Mr Findlay and Mr Claveria have been the subject of some strong criticisms in the course of this litigation, I doubt that this has created an insurmountable obstacle to Mr Claveria's reinstatement. The nature of Mr Claveria's work must be borne in mind, as well as the fact that he has worked for the respondent for many years. His long experience with Pilkington indicates that he has the capacity to take up employment with the company again. I accept that, if Mr Claveria returns to the Laverton factory, Mr Dunstan is likely to find the situation difficult initially, but I also accept that his embarrassment is likely to be short-term. Furthermore, the nature and extent of the Pilkington's workforce should be borne in mind. There was evidence, which was undisputed, that Pilkington employs about 15 workers on afternoon shift at the Laverton factory and about 23 on the day shift. It also operates a large plant in nearby Geelong. 143 In any event Mr Claveria's interests must be borne in mind. Mr Claveria impressed me as an employee who greatly desired to have back his job with Pilkington and would do all he could to retain it. He had worked for the respondent for some thirteen years before his termination in contravention of the Act. Since this happened, Mr Claveria has since struggled to find work. He worked a few shifts as a labourer/store-person with one employer and some other irregular shifts with another employer. He also found some other casual work. At the time of the hearing, Mr Claveria was employed on an irregular on-call basis. An order for compensation would be an inadequate remedy in view of these employment difficulties. In these circumstances, Mr Claveria should not be left to compensation as a remedy for termination of his employment in breach of s 659(2)(e) of the Act: compare Laz at 259. 144 An order for Mr Claveria's reinstatement should be made. Mr Claveria argued that any order for reinstatement should be reinstatement "with continuity of service and in the same position and on the same terms and conditions of employment as he had immediately prior to his dismissal". He relied on Anthony Smith &amp; Associates Pty Limited v Sinclair (1996) 67 IR 240. This was a decision concerning the former s 170EE of the Industrial Relations Act 1988 , which was relevantly different in terms to s 665: compare Laz at 259 per Moore J concerning s 170CR(1) of the Workplace Relations Act 1996 (which was in the same terms as s 665(1)). The respondent argued that in truth Mr Claveria had confused the Commission's power under s 654(3) with the Court's power under s 665(1). It contended that the orders that Mr Claveria sought were beyond the power of the Court. 146 Mr Claveria sought an order for compensation under s 665(1)(c). In Laz at 261, Moore J thought it arguable that compensation and reinstatement could not be ordered in the same matter. Instead, his Honour considered that s 665(1)(d), or s 665(1)(d) and (e), would support an order for back pay. Indeed, in Laz at 260, Moore J thought that the power to order reinstatement may include the power to require the payment of lost wages or salary. There is, however, nothing in s 665(1) that in terms provides that an order for compensation under s 665(1)(c) calculated by reference to the remuneration lost by an employee as a result of the wrongful termination cannot be made where an order for reinstatement under s 665(1)(a) is appropriate. However characterized, Mr Claveria is entitled to an order for payment of wages lost as a result of his termination on 24 January 2007 until the date of his reinstatement. The parties stated at the hearing that they would be in a position to make this calculation in the event the Court made an order of this kind. 147 Mr Claveria also sought the imposition of a penalty under s 665(1)(a) of the Act. In Laz at 261, Moore J held that the mere fact that there has been a termination in contravention of the Act does not, without more, give rise to a situation where a penalty should (as opposed to might) also be imposed. In Laz , Moore J referred to French J's comment in Fox v St Barbara Mines Ltd [1998] FCA 621 that: [penalties] are punitive in character and must be assessed having regard, inter alia, to the gravity of the conduct complained of, the existence of mitigating circumstances and the need to deter the repetition of the conduct whether by the employee in question or generally. In Fox , the employer terminated the employee's employment with a calculated and contemptuous disregard for the law and the Court imposed a penalty of $9,000. The employer's conduct in Laz was not of this kind and the Court did not impose a penalty: see generally Laz at 261 per Moore J. 148 I consider a penalty should be imposed in this case. The respondent terminated Mr Claveria's employment with it on 24 January 2007 for reasons that included retaliation for Mr Claveria's having recourse to the union in connection with perceived bullying and harassment on his manager's part. The evidence in this regard was clear. The respondent acted so as to deny Mr Claveria the freedom to pursue a basic right protected by the Act. Further, there has been less than straight dealing on the respondent's part. This was evident in Mr Findlay's seeking to stop Mr Dunstan from reiterating to Mr Seneviratne and Mr Vari on 1 February 2007 that he had terminated Mr Claveria because he had gone behind his back to the union. Mr Findlay acknowledged in evidence that he knew that termination in retaliation for "going to the union" would be wrong and in breach of the Act. Mr Findlay and Mr Dunstan knew that Mr Claveria's going to the union had cost him his job on 24 January 2007, and the reasons that Mr Dunstan advanced to justify Mr Claveria's termination that day did not represent the whole picture. 149 The amount of penalty falls for consideration. The respondent submitted that, given the size of the company, there were "remarkably few" termination proceedings issued against it and that there was only a minimal need for specific deterrence. There was no evidence of these matters, however, and, if they are not common ground, then the respondent should have the opportunity to call evidence about its previous record. Indeed counsel for Mr Claveria accepted as much. 150 If it be necessary, I would also grant leave to file and serve the amended statement of claim dated 5 September 2007 and the Amended Defence also dated 5 September 2007. Further, for the reasons set out above, I would dismiss the respondent's strike out motion, notice of which is dated 17 July 2007. 151 I propose to adjourn the matter to 19 November 2007 to enable the parties to prepare short draft minutes of order to give effect to these reasons. I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 7 November 2007 Counsel for the Applicant: Ms L Doust Solicitor for the Applicant: Maurice Blackburn Cashman Counsel for the Respondent: Mr T Donaghey Solicitor for the Respondent: Victorian Employers' Chambers of Commerce and Industry Date of Hearing: 4, 5 and 6 September 2007 Date of Judgment: 7 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1692.html