Devine Limited v Bugden; Devine Limited v Tetlow; Devine Limited v Marriage; Devine Limited v Walsh; Devine Limited v Titeica [2003] QIRC 145 (2003) 173 QGIG 1349

22 August, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1349 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 331(b) – application to dismiss or refrain from hearing Devine Limited AND Bob Bugden (No. B1155 of 2003) Devine Limited AND John Tetlow (No. B1156 of 2003) Devine Limited AND Lester Marriage (No. B1157 of 2003) Devine Limited AND Warren Walsh (No. B1158 of 2003) Devine Limited AND Jon Titeica (No. B1159 of 2003) COMMISSIONER ASBURY 8 August 2003 Applications for Commission to dismiss or refrain from hearing unfair dismissal applications – Industrial Relations Act 1999 s. 331(b) – Statement made at conciliation conference that reinstatement not practicable – Claim that applicants not genuinely seeking reinstatement – Claim that applications do not disclose basis for finding that both reinstatement and re-employment are impracticable – Claim that applicants will be prevented from obtaining remedy they seek – Claim that applications should be dismissed on public interest grounds – Considerations in exercise of discretion to dismiss or refrain from hearing applications – Requirements for reinstatement application – Reinstatement applications in the context of redundancy – Consideration of remedies available on reinstatement applications – No requirement for applicant to establish availability of remedies in material facts in application – No basis for finding that applications are groundless and could not succeed if proved at hearing – Applications under s. 331(b(ii) dismissed. -- 1 of 5 -- 1350 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 August, 2003 DECISION Background These are applications by Devine Limited (the respondent) pursuant to s. 331(b)(ii) of the Industrial Relations Act 1999 (the Act), for the Commission to exercise discretion to dismiss or refrain from hearing matters B904, B905, B906, B907 and B908 of 2003, on the grounds that further proceedings are not necessary or desirable in the public interest. Those matters are applications under Chapter 3 Part 2 of the Act, by Lester Marriage; Bob Bugden; Jon Titeica; John Tetlow and Warren Walsh (the applicants) respectively. Affidavits sworn by the following persons, setting out evidence in support of the applications under s. 331(b)(ii) were tendered on behalf of the respondent: John-Anthony HODGENS, Solicitor, Nicol Robinson Halletts (Exhibits A1 and A2); Stephen James DICKENS, Partner, Nicol Robinson Halletts (Exhibit A3); Malcolm TONKIN, General Manager, Queensland Housing, Devine Limited (Exhibit A4); and Bruce SIEBENHAUSEN OBE, Secretary/Treasurer of the Queensland Real Estate Industrial Organisation of Employers’ (Exhibit A5). The applications under Chapter 3 Part 2 of the Act completed by each applicant were also tendered. All of the deponents were cross examined by Mr Bryce on behalf of the applicants. I have considered all of the evidence and set out below that which I believe is relevant to the issues for determination in the applications under s. 331(b)(ii) of the Act. Evidence in Support of the application under s. 331(b)(ii) of the Act The evidence discloses that there was considerable correspondence between solicitors for the respondent Nicoll Robinson Hallets, and the applicants’ representative Mr Bryce, dealing the proposed redundancies of each of the applicants. That correspondence, which comprised a number of exhibits to the affidavit Mr Hodgens, makes it clear that the applicants were disputing the quantum of redundancy payments they were to receive, and the method of calculation of those payments. There is no evidence that the applicants disputed the legitimacy or validity of the decision to make them redundant. The applicants were dismissed and on 30 May 2003. Each of them filed an application under Chapter 3 Part 2 of the Act. The applications were made in the standard Form 2 issued pursuant to s. 74 of the Act and s. 123 of the Industrial Relations (Tribunals) Rules 2000. In Schedule 1 each application sought orders for that the employee be reinstated in her (sic) former position (or as nearly as possible) without prejudice to the employee’s former conditions of employment. Also sought were orders for payment of remuneration lost between the date of the dismissal and the date of reinstatement; compensation the Commission considered appropriate and such further or other order as the Commission thought fit. The relief sought was indicated by the applicants circling bracketed letters on the Form 2 application, designating the various types of relief available. A covering letter filed with the applications indicated that each applicant adopted the statement of material facts set out in the application of Mr Marriage – B904 of 2003. Pursuant to s. 75 of the Act a conference of the parties was held on 17 June 2003. On that date, the Commissioner who conducted the conference certified under s. 75(3) of the Act that all reasonable attempts to settle the matter by conciliation were, or were likely to be unsuccessful. Evidence was given by Mr Hodgens and Mr Dickens about statements which were made at the conference by Mr Bryce on behalf of the applicants. Essentially they said that at the conference on 17 June 2003, Mr Bryce had stated that the applicants were not seeking reinstatement or challenging the legitimacy of their redundancies. Rather, they were arguing that the terms of the redundancies were unfair. Mr Hodgens said that he understood that at the end of the conference there had been a “concession” or “a meeting of the minds” between Mr Dickens and Mr Bryce, to the effect that the applicants were not going to pursue reinstatement. Mr Hodgens and Mr Dickens said under cross-examination, that no offer of reinstatement, re-employment or redeployment had been made to the applicants on behalf of the respondent at the conference. However, reference had been made at the conference to discussions which had taken place prior to the redundancies being effected, about possible redeployment. Mr Hodgens also agreed that no alternatives to redundancy had been put to the applicants, after the letters advising them of the fact that they were to be made redundant. Mr Tonkin gave evidence in relation to a number of discussions with Mr Marriage in February 2003, about possible re-deployment opportunities for himself and his team, within the housing division of the respondent’s operations. Mr Marriage had made it clear to Mr Tonkin that neither he nor his team were seriously interested in looking at this opportunity. Mr Tonkin said that he did not go into further detail about the opportunities given the lack of interest communicated by Mr Marriage. By agreement between the parties, Mr Marriage’s response to the evidence of the respondent’s witnesses in relation to re-deployment opportunities, was put from the bar table by Mr Bryce. Mr Marriage agreed that the concept of re-deployment into the housing division was raised with him by Mr Tonkin, and that he had been negative in his response. Mr Marriage also said that Mr Tonkin had indicated at the time of the discussion that nothing was firm, or immediate. Mr Siebenhausen gave evidence of a meeting with a number of representatives of the respondent, Mr Gannon of the Property Sales Association of Queensland, Mr Marriage and Mr Walsh, on 19 February 2003. At that meeting Mr Edwards on behalf of the respondent had told Mr Gannon that any re-deployment into the respondent’s housing division appeared to be remote, and that Mr Gannon had said that such re-deployment did not present a viable option in terms of work and potential earnings for the applicants. Submissions for the Respondent The written outline of submissions of the respondent in support of the application under s. 331(b)(ii) centred on the assertion that the applicants were not genuinely seeking reinstatement, but rather were seeking compensation. The evidentiary basis for this assertion was said to be: • That the applications filed on 29 May 2003, although seeking reinstatement, did not contain any particulars or material facts referring to reinstatement, or supply a factual basis for establishing the impracticability of that option; • Correspondence referred to in the applications indicated that the applicants were seeking larger payouts on termination and to challenge the basis upon which severance payments were calculated by the respondent, rather than to challenging the terminations or seeking reinstatement or re- employment; and • The statements made by Mr Bryce on behalf of the applicants at a conciliation conference on 17 June 2003. It was submitted that the structure of the Act is to make reinstatement the primary remedy in an unfair dismissal application under Chapter 3 Part 2 of the Act: Mealmont Pty Ltd v Gunning (2003) 172 QGIG 1863; Rawlings v Aloha Real Estate Pty Ltd (2001) 169 QGIG 10. The Commission may only order compensation in an application under Chapter 3 Part 2 of the Act, if the employee satisfies two pre-conditions: 1. that the dismissal was unfair; and 2. that both reinstatement and re-employment are “impracticable”. -- 2 of 5 -- 22 August, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1351 The expression “impracticable” requires that the Commission be satisfied that reinstatement would be practically impossible, rather than merely inconvenient or difficult: Auto Logistics v Kovacs (1997) 155 QGIG 320. The applicants do not genuinely seek reinstatement and would not be prepared to accept it if offered or if ordered by the Commission. While the applicants had conceded that reinstatement was not practicable, they would also be required to prove that re-employment was not practicable, in order to obtain the compensation sought in their applications. It was submitted that there was nothing in the statement of material facts contained in each application or any evidence put by the applicants, which would enable the Commission to be satisfied that re-employment was impracticable. As the applicants could not prove that both reinstatement and re-employment were impracticable, compensation would not be available under the Act, and they had no real prospect of achieving the orders they sought. It was also contended that an applicant could get compensation by not seeking reinstatement, but rather by establishing that both reinstatement and re- employment were not practicable (Transcript p. 40 line 58-60) and that an applicant was not required by the Act to seek reinstatement but could seek compensation alone (Transcript p. 40 lines 29-45). Once it was established that reinstatement and re-employment were not practicable, the Commission’s jurisdiction to award compensation was enlivened (Transcript p. 40 lines 40-45). Consistent with the decision of Bloomfield C (as he then was) in Rawlings v Aloha Real Estate Pty Ltd (2001) 169 QGIG 10 and Fisher C in Mealmont Pty Ltd v Gunning (2003) 172 QGIG 1863, the applicants were not genuinely seeking reinstatement and their applications should be dismissed. Further, consistent with the decision of Blades C in Queensland Ambulance Service v Dilena (1999) 161 QGIG 212, it was contended that the applications should be seen as an abuse of process and dismissed for that reason. It was also contended for the respondent that its applications under s. 331(b)(ii) of the Act, made it incumbent on the applicants in each matter which the respondent sought to have dismissed, to show that their claims were tenable and that they had arguable cases which should be allowed to proceed to hearing. The applicants had not met this requirement. Submissions for the Applicants It was submitted for the applicants that each of the applications sought reinstatement. In circumstances where reinstatement or re-employment were impracticable by reason of the applicant’s position becoming redundant, the remedy of compensation is available. Industrial tribunals had found that employees had been unfairly dismissed in what were genuine cases of redundancy, where circumstances leading to and surrounding the redundancy were in themselves harsh, unfair, or unreasonable or where the quantum of redundancy payments had been inadequate: Wallin v Allied Coalfields Ltd (1993) 143 QGIG 306; Jackson v Atco Industries Limited 53 SAIR 95; Coleman v Aluminium Anodisers 30 AILR 474: Wynns Winegrowers Pty Ltd v Foster [1986] 16 IR 381. It had also been recognised that genuine redundancy cases give rise to claims for monetary compensation rather than re-employment, and that it would be wrong for an employer to avoid liability for unfairness on the basis that re-employment was not a realistic option: Coleman v Aluminium Anodisers 30 AILR 474. Further, in Wallin v Allied Queensland Coalfields Ltd (1993) 143 QGIG 306, Nutter C found that he was entitled to take into account the amount received in redundancy payments in determining whether a dismissal was harsh, unjust or unreasonable. It was contended that each of the reinstatement applications did not amount to a “grab for cash”. The facts surrounding the applications could also be distinguished from those in Rawlings v Aloha Real Estate Pty Ltd (2001) 169 QGIG 10, Mealmont Pty Ltd v Gunning (2003) 172 QGIG 1863 and Queensland Ambulance Service v Dilena (1999) 161 QGIG. In those cases the applicants had refused or rejected offers of reinstatement and compensation for lost wages. There had been no such offer in the cases currently before the Commission. Principles in the Exercise of Discretion to Dismiss an Application The central issue for determination in this case is whether the Commission should exercise its discretion under s. 331(b)(ii) of the Act to dismiss or refrain from hearing the applications in B904 to 908 of 2003, on the basis that further proceedings are not necessary or desirable in the public interest. The manner in which the discretion in s. 331(b) may be exercised by the Commission with respect to unfair dismissal applications, has been dealt with in a number of decisions by various members of the Commission, some of which considered previous (but nonetheless essentially similar) versions of that section: Yabsley v Ipswich Grammar School (1996) 151 QGIG 477; Nugent Aromas Pty Ltd (1996) 153 QGIG 630; Education Queensland v Tarbuck (2000) 164 QGIG 67. In those decisions various members of the Commission have adopted the following principles laid down by Dixon J (as he then was) in Dey v Victorian Railways Commissioners (1948) 78 CLR 62 at 91: “The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court, with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it, for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then, it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”. The statement of Barwick CJ in General Steel Industries Inc. v Commissioner for Railways NSW (1964-1965) 112 CLR 125 at 129-30 has also been cited with approval. In that case his Honour said that, at times, the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “…that it is a case that does not admit or reasonable argument…so to speak, apparent at a glance”. His Honour also said in that case (at p. 130) that: “…in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.”. The Commission has also been guided by the principle is that asserted by O’Connor J in Burton v the President of the Shire of Bairnsdale (1908) 7 CLR 76 at 91 that: “…Prima facie, every litigant has a right to have matters of law as well as matters of fact decided according to the ordinary rules of procedure which give him full time and opportunity for the presentation of his case to the ordinary Tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving the litigant of these rights and summarily disposing of an action that is frivolous or vexatious in point of law will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.”. From these cases it is apparent that to satisfy the Commission that the discretion in s. 331(b) of the Act should be exercised in relation to a proceeding between an individual employer and employee, it must be demonstrated that the application sought to be dismissed, is groundless and so obviously untenable that it cannot succeed. Further, it must be demonstrated that the case for dismissal of the application is so clear, that there is no real question of law or fact left to be determined. -- 3 of 5 -- 1352 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 August, 2003 Conclusions I am unable to accept that submissions for the respondent that an application may be made under Chapter 3 Part 2 of the Act seeking compensation rather than reinstatement. The Act makes it clear that an application under s. 74 is an application for reinstatement. That an application under s. 74 must be for reinstatement, is also apparent from the decisions in Rawlings v Aloha Real Estate Pty Ltd (2001) 169 QGIG 10 at 11 and Mealmont Pty Ltd v Gunning (2003) 172 QGIG 1863 at 1865. The decisions in Rawlings v Aloha Real Estate Pty Ltd (2001) 169 QGIG 10; Mealmont Pty Ltd v Gunning (2003) 172 QGIG 1863 and Queensland Ambulance Service v Dilena (1999) 161 QGIG 212 deal with circumstances where on the state of the evidence prior to a hearing, the Commission could be satisfied that the applicants were genuinely offered, and rejected, the very remedy which must be sought in an application under s. 74 of the Act (or a remedy which was manifestly in excess of that sought or available under the Act). Those cases stand as authority for the proposition that a full hearing of an application was not in the public interest, when the applicant had already been offered, and had rejected, all that could be achieved following a hearing. In all of those cases it was determinative that the applicants had rejected genuine offers of reinstatement and compensation for lost remuneration between the date of the dismissal and reinstatement. It was also determinative in Rawlings v Aloha Real Estate Pty Ltd (2001) 169 QGIG 10; Mealmont Pty Ltd v Gunning (2003) 172 QGIG 1863 that the conduct of the applicants in accepting and then rejecting reinstatement, had established to the satisfaction of the Commission, on the state of the evidence prior to a full hearing, that reinstatement was not impracticable. As a result, even if the applicants had succeeded at a full hearing in establishing that their dismissals were unfair, the Commission would have had no power to award reinstatement. It was also relevant in Mealmont, that the applications completed by the applicants, with the benefit of professional advice, did not indicate that reinstatement was actually sought. The applications before me can be distinguished from those which were considered in Rawlings; Mealmont and Delina. In their applications, the applicants have sought reinstatement to their former positions (or as nearly as possible) without prejudice to former conditions of employment; payment for remuneration lost between the date of the dismissal and reinstatement; compensation the Commission considers appropriate and such further order as the Commission thinks fit. There is no evidence that the applicants were offered any of the remedies they seek much less evidence of any rejection of such offers. It is one thing to dismiss an application for reinstatement on public interest grounds, when an applicant has rejected a genuine offer of reinstatement or an offer equivalent to the best outcome the applicant could obtain at a hearing. It is quite another thing when no such offer, or anything equivalent to it, has been made. I am also unable to be satisfied that an application under Chapter 3 Part 2 of the Act should be dismissed, simply because an applicant at a conciliation conference, concedes that reinstatement is not practicable and is not being sought, in circumstances where reinstatement is not being offered by the respondent. In my view the respondent’s submissions in this regard misconceive the purpose of conciliation under s. 75 of the Act. The holding of a conference under s. 75 of the Act is mandatory, and an application may not proceed to arbitration unless and until the Commission is satisfied that all reasonable attempts to settle the matter by conciliation are, or are unlikely to be unsuccessful so far as it relates to at least one ground of the application, and has issued a Certificate to that effect. Section 75(1) of the Act provides that the Commission must hold a conference in an attempt to settle an unfair dismissal application under s. 74. The fact that conciliation is mandatory and that the Commission is required by s. 75(3) to take certain steps in relation to each application as a result of conciliation proceedings, indicates that those proceedings are significant in their own right. In my view, parties should be at liberty to genuinely attempt to settle unfair dismissal applications in conciliation proceedings, and without constraints or fear that matters canvassed in conciliation will prejudice their positions in arbitration. I am also of the view that the focus of conciliation is to provide an inexpensive and less formal alternative to arbitration, for the resolution of unfair dismissal applications. As a Full Bench of the Australian Industrial Relations Commission pointed out in McKenzie v Merrin Rise Pty Ltd (375/00 M Print S4692), it has long been accepted that positions taken in conciliation are without prejudice to the position to be taken in arbitration, and the protection afforded to participants by this principle is an essential feature of conciliation proceedings. The limited admissibility in arbitration proceedings in this Commission, of matters raised in conciliation conferences, is apparent from the Practice Note issued by the Vice President under Rule 80 of the Industrial Relations (Tribunals) Rules 2000 entitled Admissibility of Evidence of Matters Raised in Section 75 Conference (2001) 166 QGIG 318. In my view an applicant who makes a concession at a conciliation conference that reinstatement is not practicable and is not being sought, should not, on the basis of that concession alone, be held to not genuinely be seeking reinstatement. For the Commission to dismiss an application for reinstatement on that ground alone, would be to invite parties to take a dogmatic approach to seeking reinstatement, at conciliation conferences lest it be argued that their applications were not genuine. This would hardly be conducive to the effective resolution of reinstatement applications through conciliation. Further, it would be unfair to prejudice a party for compromising an application for reinstatement, at proceeding which effectively invites parties to compromise their positions, and where they can be penalised by way of costs for unreasonable conduct, if they do not compromise. I am also unable to accept the respondent’s submission that the concession made by the applicants at the conciliation conference, was a clear indication that none of the applicants are genuinely seeking reinstatement or would be prepared to accept it if it was offered by the respondent. The cases where applications have been dismissed on the ground that the applicants were not genuinely seeking reinstatement, all involve circumstances where reinstatement was offered and rejected, and the Commission was satisfied that the offer of reinstatement was genuine. There is a sharp distinction in this case. Quite simply, there is no evidence that the respondent made any offer to the applicants in these cases. I am not prepared to draw an inference that the applicants would not be prepared to accept an offer, on the basis of a concession made at a proceeding which was for the purpose of attempting to resolve their applications without the need for a formal hearing. There is no basis upon which I could be reasonably satisfied that the applications are groundless or if proven could not succeed. It has never been the case that dismissal through redundancy is beyond the purview of the Commission’s unfair dismissal jurisdiction. Broadly speaking, unfair dismissal applications where redundancy is involved fall into either of two categories: • those where the dismissed employee contends that the redundancy is not genuine, but is an unfair dismissal in disguise; • those where the dismissed employee seeks to call into question the fairness of a redundancy in terms of issues such as the manner in which it was effected; the selection process; the quantum of redundancy payments or some individual characteristic of the employee which was not given appropriate consideration in the employer’s decision. Cases in both categories have traditionally been dealt with by the Commission under its unfair dismissal jurisdiction. This is so, even though the latter category of case usually involves circumstances where the Commission finds that there was a genuine operational reason for the redundancy. In the case of a genuine redundancy, an applicant seeking to invoke the jurisdiction of the Commission to deal with the fairness of the dismissal resulting from that redundancy, must seek reinstatement. This may raise practical issues as indicated by Fisher C in Mealmont. However, it should be no answer to an application alleging that there had been unfairness attaching to a dismissal in circumstances of a genuine redundancy, for the respondent employer to contend that the application should be dismissed because the applicant could not as a matter of practicability, be reinstated. -- 4 of 5 -- 22 August, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1353 Further, I can see no prima facie basis for dismissing an application under Chapter 3 Part 2 of the Act, in circumstances where the employee concedes that the redundancy was for genuine operational reasons, and as such reinstatement is not practicable, but nonetheless maintains that there was unfairness attaching to the redundancy. If applications could be dismissed on such grounds, then employers could avoid applications under Chapter 3 Part 2 of the Act by simply abolishing positions and establishing circumstances where reinstatement was not practicable. I am unable to accept the respondent’s submission that the applications should be dismissed because there is no material before the Commission to indicate that re-employment is impracticable. In my view, this submission misunderstands the context of re-employment in the circumstances of an application under Chapter 3 Part 2 of the Act, which is headed “Unfair Dismissals”. Section 73 of the Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable or for an invalid reason. Under s. 74, where it is alleged that an employee has been unfairly dismissed, an application for reinstatement may be made. The Industrial Relations (Tribunals) Rules 2000 provide at Rule 123 that an application for reinstatement must be filed in the approved form. The approved form is Form 2 and is found in the Schedule of Forms to the Industrial Relations (Tribunals) Rules 2000. There is no requirement in the Act or in Form 2 for an applicant to demonstrate in material facts accompanying the application, the practicability or otherwise of reinstatement or re-employment. What is required is that the applicant indicate the relief sought in the appropriate section of the Schedule. This is often done by the applicant simply circling each of the letters set out in the Schedule. While re-employment is not specifically mentioned in the applications as filed, it is encompassed by the relief which the applicants have indicated that they seek. Under the heading “Decision Sought” in Schedule 1 of the applications, the applicants have circled (A) to indicate that they seek: “That the employee be reinstated in her (sic) former position (or as nearly as possible) without prejudice to the employee’s former conditions of employment” and (E): “Such further order as the Commission considers appropriate.”. The remedy of re-employment is clearly encompassed in either or both of those claims. It should also be noted that an application under s. 74 of the Act is not an application for re-employment. Re-employment is not mentioned in Chapter 3 Part 2 of the Act until s. 78 which deals with Remedies. That section makes it clear that remedies are only applicable if the Commission is satisfied that an employee was unfairly dismissed: refer s. 78(1). If so satisfied, the Commission may order the employer to reinstate the employee to the employee’s former position: refer s. 78(2). It is only when reinstatement under s. 78(2) is considered by the Commission to be impracticable, that re-employment may be ordered: s. 78(3). The Commission may also under s. 78(4) make further orders in addition to those under s. 78(2) or (3) in relation to continuity of service and other matters. Compensation under s. 79 is available if and only if, the Commission considers that reinstatement or re-employment are impracticable. Clearly re- employment is a remedy which the Commission has discretion to award, only after first finding that the dismissal was unfair, and then finding that the primary remedy of reinstatement is impracticable. Re-employment is a not a primary form of relief which an applicant is required to seek. It would be an extraordinary outcome for an application to be dismissed summarily under s. 331(b), on the basis that the applicant had not disclosed any material facts or grounds to satisfy the Commission that the remedy of re-employment was impracticable at the point the application was made, when the applicant had neither sought, nor was required to seek, re-employment. I am also of the view that it would be an inappropriate exercise of the discretion under s. 331(b) for the Commission to dismiss the applications on the basis that the applicants had not put any evidence before the Commission about the impracticability of re-employment, in response to the applications under s. 331(b),. It was for the respondent (the applicant in the s. 331(b) applications) to show that the applications with respect to which the exercise of the discretion was sought, were groundless and so obviously untenable that they could not succeed if they were allowed to proceed to a formal hearing. This the respondent has not done. The respondent’s application seeking the exercise of the Commission’s discretion pursuant to s. 331(b)(ii) of the Act is dismissed. I Order accordingly. Dated 6 August 2003. I.C. ASBURY, Commissioner. Hearing Details: Appearances: Mr B. O’Donnell QC, instructed by Nicoll Robinson Halletts, for the applicant. Mr R.M. Bryce, of Mateside Pty Ltd, for the respondents. -- 5 of 5 --