Case: Employment Advocate v Williamson [2001] FCA 836 ; (2001) 111 FCR 1
Outcome: cited
His Honour concluded that the "spill and fill" proposal for the selection of certain employees within a group for involuntary redundancy was not "sufficiently proximate" to any of the forms of contravening conduct contained within s 298K. Dismissal of all employees for a prohibited reason is squarely within s 298K notwithstanding that they represent potentially a large group. Dismissal of employees for a prohibited reason within a group of employees some of whom may be dismissed for a non-prohibited reason does not remove the individual or bilateral character of the prejudicial conduct on the part of the employer as against that employee. It would be an odd thing if the statutory quality of contravening conduct in respect of some employees could be dissolved amongst a group and remedial entitlements otherwise available to the affected individuals thereby lost. The question is whether the conduct, from the standpoint of the individual, notwithstanding others, represents conduct carried out for a prohibited purpose. It seems to me that the observations of Gray J in Employment Advocate v Williamson [2001] FCA 836 ; (2001) 111 FCR 1 at [23] : 'What is clear, however, is that for a contravention of s 298K to occur, there must be a person or persons who fall within the description in one or more of the prohibitive reasons.' and at [26]: 'It must be possible to identify some person or persons who answer the description in at least one of the prohibitive reasons in s 298L(1).' does not contradict the notion that an individual may fall within the description of the conduct even though such an individual forms part of a group such as that identified in the illustration by Weinberg J. 356 In this case, the employer entities dismissed a cohort of employees. Some of those employees, from their individual standpoint, contend the dismissal was for a prohibited reason. They say the circumstances that give rise to that apprehension can be seen in the attitude of Mr Ramsey to the AMIEU, his hostility to the participation of the Union in the workplace and the consequences of Union engagement in various processes before the AIRC and the dissatisfaction nine of the 12 individuals were articulating about conditions of employment against the background of the steps taken by the Union. As to three of the individuals, their concern lies in the chronology of events arising out of their constructive dismissal and the subsequent treatment of the individuals consequent upon obtaining orders from the AIRC and particularly orders for reinstatement. 357 The dismissal of the entire cohort of employees does not provide an answer to the essential character of the contravening conduct in respect of the particular individuals. The legislation provides a mechanism for an employer to demonstrate that the apprehended and thus alleged reasons for the dismissal are misplaced and incorrect by casting an onus upon the respondent to demonstrate otherwise. 358 The same position obtains in relation to the conduct of refusing to employ the relevant individuals. In essence, the respondents say that in the case of each individual, the particular person was not available for employment, did not seek employment and was not denied employment. Moreover, before a refusal to employ an individual for a prohibited reason can arise, the individual must demonstrate that a vacancy was available to be filled. 359 As to these matters, it is clear that the individuals did seek employment. Enquiries were made of management staff as to the availability of the work. Steps were taken to refuse immediate employment by some, but expressly for the purposes of trying to secure a return to work for all employees. Mr Delaforce and Mr Moss formulated a compromise proposal directed to securing the return to work for all employees. Some individuals were episodically offered employment on a day, sometimes after the event. Enquiries were made of management and in the immediacy of the dispute and enquiries were made at the gate as to those persons who were on the list for employment. The evidence demonstrates that jobs were available and vacancies were being filled. Subsequent offers, even though episodic, demonstrate that vacancies were there to be filled. Notwithstanding the lengthy period of employment on the part of the 12 individuals with the South Grafton Abattoir from the commencement of operations by Mr Ramsey and the pre-existing historical connection with the abattoir in the Gilbertson's days, none of these individuals (leaving aside Susan Young) were offered full time employment or any sustained period of casual employment.