AEC Electrics Pty Ltd v Raby [2000] ICQ 57 (2001) 166 QGIG 2

2 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 January, 2001 ########################################################################################################################## INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial magistrate AEC Electrics Pty Ltd AND Grant Nicholas Raby (No. C41 of 2000) PRESIDENT HALL 14 December 2000 DECISION On 27 June 2000 the Queensland Industrial Relations Commission published a decision by which it found that on 16 July 1999 the appellant dismissed the respondent for “filing a complaint, or taking part in proceedings, against an employer involving alleged violation of laws or having recourse to competent administrative authorities” contrary to s. 73(1)(b) of the Industrial Relations Act 1999. The commission went on to order the appellant to pay to the respondent an amount of $7,000 gross by way of compensation for the unlawful dismissal within 21 days of the release of the decision. On 18 July 2000 the appellant’s solicitors filed an appeal to this Court. Some complaint is made about the form of the Notice of Appeal. It may be conceded that it does not set forth, as it properly should, the relief which is sought. However, the powers of the Industrial Court of Queensland on an appeal against a decision of the Industrial Commission are limited to those described at s. 341(3). It is scarcely likely that the appellant brought the appeal in order that the appeal might be dismissed, or to amend certain passages in the decision which the respondent by its lay advocate tells me are not flattering to the case which the respondent presented at the trial. It seems to me that a reasonable person would have concluded that the appellant sought to have the decision of the Industrial Relations Commission set aside and the application for reinstatement dismissed. Section 329(k) vests ample power to waive compliance with the rules. I grant the appellant’s application to amend the Notice of Appeal by adding three points of relief, viz “(1) That the appeal be allowed; (2) That the decision of the commission of 27 June be set aside; (3) That application No. B1081 of 1999 be dismissed.”. The case made by the appellant is that the respondent had not on or prior to 16 July 1999 filed a complaint, or taken part in proceedings, against the appellant involving alleged violation of laws or recourse to competent administrative authorities. It is conceded that there was evidence before the Industrial Relations Commission on which the commission could (and did) find that by 16 July 1999 the respondent had reduced to writing a threat to make a complaint to Wageline about certain wage matters unless the appellant resolved those matters prior to 20 July 1999. The contention is that s. 73(1)(b) is not contravened by a dismissal triggered by such a threat. It is perhaps useful to set forth s. 73(2) which nominates the reasons which are “invalid reasons” for the purposes of s. 73(1)(b). “(2) Each of the following is an “invalid reason”– (a) temporary absence, within the meaning of a regulation, from work because of illness or injury (other than an injury within the meaning of part 5); (b) seeking office as, or acting or having acted in the capacity of, an employees’ representative; -- 1 of 3 -- 5 January, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 (c) membership of an employee organisation or participation in the organisation’s activities outside working hours or, with the employer’s consent, during working hours; (d) non-membership of an employee organisation; (e) filing a complaint, or taking part in proceedings, against an employer involving alleged violation of laws or recourse to competent administrative authorities; (f) the making by anyone, or a belief that anyone has made or may make – (i) a public interest disclosure under the Whistleblowers Protection Act 1994; or (ii) a complaint under the Health Rights Commission Act 1991; (g) refusing to negotiate for, make, sign, extend, amend or terminate a certified agreement or QWA; (h) refusing to negotiate for or make a certified agreement, or Australian workplace agreement, under the Commonwealth Act; (i) a reason mentioned in section 34; (j) a reason mentioned in section 394(2); (k) discrimination.”. There is a clear contrast between paragraph (b) which protects seeking to be an employee representative as well as acting as one, paragraph (f)(ii) which protects employees believed to be persons who “may make” a complaint as well as employees who have made a complaint, and paragraph (e) which read literally confers no protection on an employee “proposing” or thought to be “likely” to file a complaint or thought to be a person who “might” file a complaint, or take part in proceedings against an employer involving alleged violation of laws or have recourse to competent administrative authorities. The matter is taken further by comparison with s. 104(1)(i) and (j). The limited scope of s. 73(2)(e) is understandable enough. The provision has a history. It was in substance s. 291(2)(b)(iii) of the Industrial Relations Act 1990 and subsequently s. 217(b)(v) of the Workplace Relations Act 1997. In both cases it formed part of a scheme to give effect in the Termination of Employment Convention, 1982*. By article 5 of that Convention, the following, inter alia, shall not constitute valid reasons for termination – “(c) The filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.”. * [Which probably explains why the traditional common law expression “making a complaint” was not used.] It is contended for the respondent that the word used is “filing” not “filed” and that “filing” is a perfectly appropriate word to describe the activities of a person proposing or making arrangements to file. The submission is inconsistent with all authority. The use of the term “file” originated in the early practice of passing a piece of string or wire through papers relating to the same matter in order to keep them together in the registry of the great common law courts. The thread, wire or string was called a “file”, compare Re: Commercial Union Assurance Co (Limited) (1899) 18 NZLR 585 at 588 per Stout CJ. Understandably, documents which had been so secured came to be described as documents which had been filed. The practice of fastening together in that way the writs and other papers in the offices of the courts has long since been abandoned. “Filing” is a word now used “to describe the act or process of placing documents in the records of courts or registries”, Purden v Registrar in Bankruptcy (1982) 43 ALR 512 AT 515, and sometimes (more liberally) to describe “the act of handing over a document and having it received by the filing staff without reservation”, Strudwick v Baker Johnson (1996) 130 FLR 113 at 118 per Lindenmayer J. But the mere tendering or showing of the document to a court officer has never been characterised as “filing”. Still less has the word been used in respect of the process of preparation of the documentation. Doubtless, in the context of s. 73(2)(e) the reference to “filing a complaint” is not confined to filing a document in a court and extends to handing over a document and having it unreservedly accepted by a person or entity authorised to institute proceedings. But the expression cannot be expanded to cover what occurred in this case. It is then contended that by causing a letter to be delivered to the appellant the respondent caused a complaint to be filed with the appellant. I can well understand that an employee who was dismissed in consequence of a complaint made to his employer may have a remedy under s. 73(1)(a). It is however patent that paragraphs (b) to (h) of s. 73(2) are concerned with the protection of rights otherwise vested under the law, and in particular that paragraph (e) is concerned with the making of complaints about the employer to persons other than the employer. Finally, the respondent relies on the finding by the commission that “the applicant had contacted Wageline on 21 May 1999, and later had discussions with Mr Terry Dodds from DETIR about his wage concerns. The submission of the appellant, which I accept, is not that the finding is contrary to the weight of the evidence – a point which is not available under s. 341(1) – but that there was not any evidence at all to support the finding. There was certainly a question asked by the lay advocate acting for the respondent which indicates that the respondent may have been investigating whether the respondent was paying correct wages in May 1999. However, even if the question may be treated as evidence, that question is not evidence that the appellant was complaining to Wageline in May 1999. There is certainly evidence that the appellant had had dealing with Wageline some months prior to July 1999 in consequence of which he had come into possession of information indicating to him that he may have been underpaid. But there is no evidence at all to resolve the conundrum whether the respondent obtained the information by listening to a pre-recorded message, by making an anonymous inquiry or by disclosing his identify of place of employment and seeking advice. Even the modest finding that the respondent had had “recourse to competent administrative authorities” was not open. In the circumstances outlined the only proper course is to allow the appeal and set aside the decision of the Queensland Industrial Relations Commission. Whilst an employee who was dismissed for complaining to his employer may have a remedy under s. 73(1)(a), such an employee does not necessarily have a remedy. An assessment of whether a dismissal is “harsh, unjust or unreasonable” requires a consideration of all the facts and circumstances and the formation of a global judgement. On examination of the transcript shows that the appellant had criticisms of the respondent. In finding that the respondent was dismissed for “filing a complaint, or taking part in proceedings, against an employer involving alleged violation of laws or having recourse to competent administrative authorities” the commission did not find (and was not required to find) that those reasons were the sole or even the dominant reasons for the dismissal. The parties to proceedings such as this, or some of them, are often impecunious. It is less than satisfactory to remit such a matter for re-hearing. If it were possible to act on s. 348 and re-hear the matter on the record I should do so. However the matter was conducted by lay advocates. It is apparent from a perusal of the transcript that everything depended upon credibility. There are not documents or independent evidence against which the oral -- 2 of 3 -- 4 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 January, 2001 evidence may be measured. Demeanour was the test. There is no finding by the commission about the credibility of the appellant and the respondent for issues other than those relevant to s. 73(1)(b). It would be unsafe to proceed on the view that because the commission had “largely accepted” the respondent’s evidence on those matters that the commission “largely accepted” the respondent’s evidence on all matters. As previously noted the commission did not order the reinstatement or re-employment of the respondent. The commission awarded compensation to the respondent. The commission was only empowered to do that if it considered reinstatement or re-employment to be “impracticable”, see s. 79(1). It is not necessary to review again the decisions upon “impracticability” which I reviewed in Queensland Teachers Union of Employees and Department of Education (No. C60 of 2000). It is sufficient to say that on the facts of this case the conclusion that reinstatement and/or re-employment were impracticable might have been reached only if the commission accepted some of the criticisms which the appellant had made of the respondent. In the circumstances, I order that the matter be remitted to the Queensland Industrial Relations Commission to be heard and determined according to law by an industrial commissioner who has had no previous dealings with the matter. I doubt that on the findings which I have reached I have power to award costs. However, as a matter of prudence, I reserve the question of costs. Dated this fourteenth day of December, 2000. D.R. HALL, President. Released: 14 December 2000 Appearances:– Mr A. Horneman-Wren instructed by Nicol Robinson Halletts Solicitors for the appellant. Mr S. Royce of Australian Industrial Reinstatement Services for the respondent. -- 3 of 3 --