Auto Logistics and Auctions Pty Ltd trading as Pacific Auto Auctions v Kovacs [1997] ICQ 20

320 QUEENSLl\i"'JD GOVEILNMENT , 1997 Qt 1 EE?~SLAND iNDUSTRfAL cot RT Indus:riu! Relatiot1s 1 i 8(2) appeal frorn dedsion (~f industrial cvnm1ission Auto Logistics and Lid (l'/o 1996) JUSTICE de JERSEY, PRESIDENT !\fay i997 JUlGME'.'iT 'f h.:: respondent e1nplnyed by the. appcUmlt m it fiom 10 April !946 She w:as empJoye(1 :?: prnbtHiumny or rnooth:,;. She 'Norked for l\VO _months, nnd t.hcn on was disrn.i.\s,ed ;;1.s 9 Juty 1996 Her t-arning,~ (.\>mputed per annum. The appcUant di~:mj¼sed her bt:'cause fr was .½t.Hisfied with hcI pert1rn1ance, Befort: !:he Cr)!Iunlss.ion, the appeUa.nt acknc\vledgcd thac H had not cornphcd \Vith s,29~ of the Jndusrrial Reluti1ms I 990. The Conuuissioncr t{mnd th.:it her disrrnssai was, in terms of the fegisbt1r1_n, harsh, unju<.;t and unreason;ib]e. He condudetl that '"the relationship cou!d not be restored", und findins: thut sht bt:iieve she \vouki enjcy iong term emp!oyn:enr \vith the (Jppellant) eve-n though she was on probatton or on tr1al m the ti1ne her di:)mis:-.at", he a\v;1rded cornp.~ns3.r;on. set at Sl C.975 .84 -· approxin1au:ly five monrhs' lost \.vage~:. Before uwmding compcn~;ation, the. Cofftmi~•'.\ioncr had to satisfie-d thnt reinstarernent Yvould be •'irnpracticabie''. As to thi,, :matter. the Cot11n1/~;sionc-r said· the (\.m1rnl.\slon noh:'s that the Cornpany offered to reinsrate or re-erup!oy Al the tirne of the dlsmls-sal !\-1r F:1lriwH did no1 rn a 30 May, GOVERi'\JMENT INDUSTRIAL GAZETTE l reasonable mannec The Commission wrndd not expect fvh Kovacs r.o remrn 10 such fill employment situati()n especially when ,\fr Fairh~E - .J!d not communicnte ;ibout Ms Kovacs; j'\frs Donnelly hls specific concern-~ not give f'Vls Kovacs the opportunity to be tnf1--1nned of debtors con:pbints (if th1s even existed io the levd :-.uggcsted hy hinl_i; :H1d frorn h1s evidence he dearly Dcted in a rnar.mer which h:icked ar! rn1fiersiJndin.g of a contemporary indu:-.trial envlronmen! l\1 \:_ Ktr,.-ac-; Qt the tifftc of disirn;-:\al was employed on a trial b~tsis< The reveals that Ms Kovacs was a dedicated employee who to resolve any concerns rhat n1ay have. heen expressed by hei addres;,ing the concerns rnised but the other not ctmveyi:d lo her. if the problerns to \.Vhtch i\fr Fairhal1 referred did exist he had an oblig~·rtion tc raise thern \Vith ~Jn; Donneily so she could refer thcrn to Ms Kr,v3c, or as n rcprc,entative ot the employer nwnage the problems himsdf Becrmst: of this lack of kno\vledge on industrial manage111ent n1auer~ and ::is result of hi\ decision to act wlthout :::. reasonable ievd of re~;earch, tvts Kov;:icS \vas dcnie<l 1he opprntunity of a fuH·-tiine po'lit]Ot;, in con,Hlering the ovenll employment of Ms Kovacs and the fact 1.hat evidence dC".iC\ not support the view of !v1r FairhaH, the Cl1mrriission i~ '.-iatisficd that !'v1s Kovacs is entitkd to compensation.'' Th~ appellant chaHenged the Con11nissjoner\ finding that rein.statement was irnpmcdcablc. :'vlr Williams, who appeared for the ap1,ellanL pointed to tht: cin:nn-1si.ance that on 19 August 1996 the appellant offered to reinstate the respondent The respondent v,,,a~ then offered a fuU--tirne position in the appellant's office~ doing office v,:ork, at the san1e s:ibry as paid v,:hen she wati dl~n1isscd. She had in fact, a.hout three V.·'t:eks earlier, gained other employmem for which she wa;, paid only about half her salary with the appdbm Mr \V llliarrn. referred me to the evidence given by the respondent 011 the 1ssue uf rdnsrntcrnenL and convenient for rne to se.t it out 1n her written re~pondi;,nt said:-- '! not deslrous of returning to n1y former employrnem \vilh PJcific !\wo Auctions· evjJenrc:-- g<) on to say that you're not desirous of returning your formfr ~mpioyment with Pad fie Atnci Auer ions~ ,vhy do you \ay that? -- \Vcl! I a k:it has heen said ba~KaHy that v,,:ould n1ake it a very un(·ornfonabk situation, but if it was so ordered thm I should be and Pacific Auto Auctions was ordered to reinstate 111e to rny posiuon, wcil then yes. f would go ,1long v/ilh that order. but i \Vuu~d h~~ looking for other fuH~tirne crnpJoyrHent, sh01tly after 1 \Vas reinstated. I"rn a lot h3ppier where I ani at the rnornent and J an1 sort of keeping rny fingers crossed that it does turn into D fuB•-tin-ic posirion, because I would r.nuch prefer i.O stay where I arn. Bui doosr,-t pay a;; well' - ;--;o, no Ifnonf of this had happened, do you believe you would sti11 be ---· 1 - - Y,.:,, l do. Did you Jike the job ar --- ?-- l did. I loved the job and J enjoyed working there and ! rn;oyed lkaimg w:th the dc;ilcrs, I've been in the 1notor indu.str:,v fOr 10 ro 12 years on and offanJ 1 love the industry. Ii',;; ;.1 thing \jfl its O\.'-'fl 1 mean ir'-: different to any other indu~try thJ.t you work in. Dki have any expectations in [hat ernployment \V1th P:icific AutD Auctions'> Did you think r.hat you n1ighr ha1,..e a future thc1c 01 not? \\.'ell, I did, I ,vas never given aay other indication oihenvise.'' und.er cro,;-.,-;-r.•xaminatic,n "Yo;; did make the comment when questioned by !\fr Stdnitz, tilm k1d - nr if this Crnnrni:,sion \Va~ to urder rel1htaren1ent, you feel you would leave yourself of your own accord within a relative'ly ,hm1 period of time? -- Yes, I would_ With the letter., that hav.:, been put forward by Mr Fairhall from other sraff, l really don't think it would b<, very comfortable office to work in, Whal letters are they, are they in evidence here wdav'! -- don·i_ know, Have you seen anything in the material that's been presented by Mr FairhaU, that would indicate that any such letters are t~ing tendered? -- No, but rhere were letters tendered at the first hearing that \Vent to, fron1 other staff n1ernbers_ \Vhich he::uing is that ~1 -- The first hearing that "\\'e ·-,vent to \Vr::,.\1e ju~t had a rather large dlscu~slon abour rnalcrinl being tenderetl :Jt C01nrnission conforences and :<:.eparate discus.~ion,;,;, do you 'ii.ill foe] comfortable abou! raising those points? -- The first hearing that we \.Vere called to try ~nd reconcile tJ1i.'>, ·in front of Comn1t~sim1E-'r HaH I was nt that punicular conference, I can't recall any nmterial having been tendered, perhaps reference wa, made tu it, hut no1hing was tendere.d'l -· There was three letter;;,", Finally. in re-e.x.mnination:- "Mr Sremi!z: I commence this question with this expianation, as i understand it you overruled my objection to the question tha; Mr Kowabki put and it is in evidence before the Commission thm an offer of reinstnten1cnt was rnade~ on that basis I \VOtdd sirnply ask the ,vime~;., this, Wa, reinst.atement offered in a conditional w:,y'I -- Yes, it w,1s. Have you been offered 1einstaternem to you, l<xmer job with all its conditions and ail its functions? -- No.H. The appellant submits that the Comm1ssionef°s finding that reinstatc1ni::"nt u/as irnpracticahle was not n..•a:;,,onably open on the evidence. The appellant relics on that for the error of law it must seek to establish in pursmng the appeaL Mr Steinitz, who appeared for the respondent ,'.mphasized the factual character of that conclusion, and submitted that thc, finding v,ns :easonably open on the evidence, He urged me ln due welght, m, f n-iust and do, to the advantage cnjGycd by the Commi:.;sioncr through having seen the ,vitncsses give their evidence. already indicaled, the Commissioner's junsdiction to award compensa!lon depended, under s.297 as it then provided, on a finding th21 reinstatcmc.nt was "impracticable" That word d0c·s in my view bear its ordinary meaning, mrd it is not enollgh, to ts!ahlish impracticability, to show that restoration of cnJployrnent would be rnerely inconvenient or difficult As the dichunarie:i confirm, the \vnrds m.ean5. practically impf1;-;sihle. Se.e Liddie v, Lembice ( l 994) l 27 ALR 342, 360 and espcdally 367-8. A, emerges from the above evidence, the respondent would have accepted reinstatement. if ordered She said: "l would go along with !ha! order." The appellant had on l 9 August l 996 offered to reinstate her, and that followed a re~iuest by the respondent her,elf 011 S July 1996 for rdnsrn1emcn1 (albeit prior 10 her departure fwm the uppdlant on 9 July/, Neither party, therefore, as at •he hearing, saw reinstatement as "pmc,ically impossible", Jn my respectful view, the Commissioner has misdirected hirm,elf as to the relevant !est In dealing with the is,uc in his reasons, the Conunis,ionc,r tr,cused on the conduct of the appdlanfs genernl manager, Mr Fairhal!, at the ,ime of dismissing the respondent That was 2 July l 996. The of!,,r ,,;f reinsrntement was made by the appellant on l 9 August l 996, and the Commissic,ner made hi.s award of compcnsa,ion on 23 September 1996. lt \VOt.dd plainly huve been inappropriate to consider !he prncticabihty c,f reinstatement solely by reference to the conduct of the appellant\ representative at the time of dismissal, two months earlier than the hearing, and that regrettably appears w have been the Commissioner's approach, The appellant's subsequent offer on 19 Augu,! l 996 of full reinstatement. fr,!lowing the rec:;pom!ern·s own rt'{juest for reinstatement on 8 July, taken Yvith the respondent's concession when giving her oral eYidence befr)rc the (.\)rrn-r!Js(_,ioner t.hat she \vouki "go ulong \Vith" a Cornniission 01der for rein,">Litement, were very pov/crft1! consideration,.,-; favouring the CDnclu<..;ion that teinstat.enK•-nt,, though perhap~ involving in1.;onvenience J.rni st~n,itivitlec., ;,vould not have been ·'practicaHy intpossibk" -- indeed, .so powerful in rny view as to compel the conclusion that reinstatcrnent \V:J.s not irnpr acticable 2,1321 LDOC -- 1 of 2 -- Cornrnis:.Joner's contrary fmJing V/a:; not open, There thcrefixc no basfr~ kH" the Corr.nnjs.sioner·-~ avv:ud of compen;ntion, which must he ar.;i.de. In 1~glit oftha1 conclusion, it not for rne rn deal. rc..;pondem sho~_1ld he a\ having, at thi~ stage, ;1t:Jnd0ned the pro~pec: of reinsw.ternem. :-;he bm, taken on ahernati ve ernployn1ent ~;hf \i\.i~shcs ietain, I refr-r h,.:r evidence in crns,:,:-exa.mln0rion, reproduced ah{iV~. Tlie upprcpriate orders therefore, simply, rhat ul11)v,.,ed and t.ht~ Cormnission'[~ ordi:r:..; set .nside 'The que\lion rese1Yed. P de JERSEY. Pr1e,idem. ApIJenrunr:es:~ R.H. Sieimu. for the Rt•spondem. Opera~!ve Date· Judg1nent ,i\utci Lo_gi:,tic,; and Au._'.liuns Pty Ltd trading as Pac1ftt: J\tHo ,\~i:ction~. , 1997 30 May, 1997] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 323 -- 2 of 2 --