Cooke v The Queensland Spastic Welfare League [1996] QIRC 878 (1997) 154 QGIG 79

1997 QUEENSLAND GOVERNMENT INDUSTR£AL GAZETfE 79 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial RelatiDn.< !let 1990 s 295 - application for reinstatement Marleen Cooke AND The Queensland Spastic Welfare League (No. B1057 ,:f 1996) COMMiSSlOM::R FISHER 24 December l 996 Reinstaiirneu Previous decbion Application Granted - ~fatt;.;r referred 10 parti-:s agreement - Submissions on remedy - Compulsory retirement age policy - Casual employment has been offered - No grounds for impracticability of rei!'statement made Olli Case Law Reinstatement ordered - C:m:im1ity of employment - Applicant to repay mency p:i.id on dismissal - Practical reinstatement to occur no later than 6 January l 997. DECISION On 2 i November l 996 I released my decision that the dismissal of Marleen Co0ke from her position of Registered Nurse with The Queensland Spastic 'Nd faff League (the League) contravened Part 12 Division 5 of the lndusrriai Rewlwns Act ! 990. (153 QGlG I l 66 }. Specifically the Commission found the reason for the dismissal was not valid in tcm1s of s. 29i(2)(b)<v) as it was for attributes for which discrimination is prohibited under the 4nti-Disuwunation Act 1991. As the rnpiec,entative of the employer h.1d nc instructions in relmion w reme<ly the Comrrussion referred the matter back to the parties, The Commission was advised agreement was unahle to be reached. Accordingly, the Commission heard submissions on this point on l 8 December 1996 In this mlll:!cr the Queensland Nmses' Limon of Employees (QNL) genumely Beek the reinstatement of their member Mrs Cooke to her fom1er position. Only :i. reluctant altemabve is compe1Eation sought. ln !'he evem the Corr~n..ission deddt:d to av.arJ co1;1pen.sation thl~n the rr:iaxinma1 available u11Je1 297 of the Acr was sought For it, pm1 the L~aguc oppose<' lns!e.;d it submitted !hat equivalent to three months wages be made. reinstatement arguing its an awarJ ol t-cnnpen.smion I have considered the parties' competing claims and the submissions made m respect of their positions. The League did not lead anv endence regarding the impracticability of reinstatement relying instead on a0 scrtions from the bar table a, 10 potential dishanr,ony among,t th~ workforce were Mrs Cooke to return: fh0;; "soured" relationship between the L:cague and Mrs Cooke and the potential restructuring of the nursing workforce to justify the difficulty in restoring the employment relationship The Commission und~rstands from the submissions that Mrs Cooke's part-time hours were ahsort>ed by other part-time nurses No nurse was employed to replace l\1rs Cooke yet it appears that the casual nursing hours available have increased. Wer.: Mrs Cooke to return re the League's employ, then an avenue to adjust the casual nurses· hours wilhou! affecting the permanent staff appears to be available No evid.:nce was led m the substantive hearing a, lo m1swnduct, poor performance or a lack of capacity to pertom1 the duties of the position. fhe League's argument focused on its compulsory age retirement policy :is lhe n:ason for the terminahon" While legal proceedings of any type inevitably affect relationships, the issues involved in this ca,e were nm ones which would lead the Commission to conclude the employment relationship had irretrievably broken down. The reality of Mrs Cooke's employment w~c, she was Jisi.anced geographically and organisationally from the people who made the decision to terminate her employment and this would continue were she to return Bet:ause no evid~nce \vas led 011 this poim the Commission rnnnot necessanly conclude that the League's decision not to waive its compulsory retirement policy in Mrs Cooke's case was mdicativc of a sour relationship with the employee. It may have simply been the c::ise that the League decided !<> conclude the employment relationship in accordance with its policy The Commission is aware the League has offered casual employment co Mrs Cooke This offer undermines its argument concerning the impracticability of the reslorati,)n of tbe tmploymenl rdatiom,hip. In 1em1s of the potential restructuring of the nursing workforce, the Commission notes !hat this is an option availah!e to the employer regardless of whether l'v1rs Cook~- b an ernp!oyec noL It is not an argument against reinstattmtmt In my view the grounr!s of impracticability have not been mndc ont In rcm;hing this view I have had regar<l to the comrnc:nts made by Wilcox CJ in Nicholson v Heaven and Earth Gallery (57 lR 5(1 at 6 l /.-- ''ft important to !"lote th:.t Padi31rent st-:Jppe:1 ~h0rt of rcyuiring that, for general con1pensailen to be available, rcinstmcrnent be impossihh..· The word 'impracticable' requmis and ps,rmit.s the Court to take inlo nccount all the circumstances of the case, relating to hoth the r,rnployer Dnd employee, and to evaluate the practicability of B rein,tatemcnt vrdn in a conunonsen:;e \li,,'J.\o. If a rcin,')tmerncnt order i:-i likely tu imptJ;,;e unacceptable probien;s or embarrassments, or seriously affect productivity, Pr harmony within rhe employer's business. it he 'imprnclicab!e' to order reim,!at,:ment, notwith,tari<ling !hat the Job remains available.". and Gray J, in Liddell v Lnnhke. (IT' 1\LR 142):-- 'Thus, when this Corn1 finds !hat a contravention ol a provision of ,ub- division B (other than s. l70DB or .170DD) has ocwrred in relation to a termination of employmenc it will ordinarily grant the remedy of remswtement specified in ,;,,,JJOEE(l ). lt dl1t.:S not possess au unfonen.:d discretion to refuse that remedy upon any view tu the relative merits c,f the partie~ The only cirnnmrnncc in which it can refuse to grnnt the remcdv is if both fonns of reinstatement spectfied are "impracticable . The \~ord 'iinprncticable. means 'that cmmot be carried out, effected, axompHshed, er don~; pnKtically impossible' (Oxford Eaghsh Dictionary J or 'tha! cannot be pi.it into praclice wrtll fhto available means' (Macouaiie Dictionary). Attention is dire.cte<l to the practicability ot· the not to its prncticality. Section_ l 70C:R of the federal provides ;,:a,.n expres:;lon J..he,d iu Jlvlsion 3 uf part. VIA ha, the same meaning as iil tht: Convention. Anicle lO of the Convention uses the expression 'no! .. pracncabie' The hench text 0f the C0nvent1on (•v1✓ hkh is authoritative with the English) renders the relevant part of mticie ;is 'n'cstim~m pa, p(,~sib!e dan., le, cuconstance, which i understand to translate directly as 'do not consider it possible in the circnm,tance5'. The u,e of the Frem;h word 22220_1.DOC -- 1 of 2 -- 80 QlJEENSLAt'\lD GOVERNMENT INDUSTRIAL GAZETTE 'possible' shows the extent to which the Court must go before it can refuse to reinstate:'. in corn,ideration of these views, il is evident that the primary remedy available under the Act is reinstatement. This is the remedy sough! by !he QNU on behalf of it, member and after weighing the issue from oolh the union's and the employer's perspective, there is no rea,on why the primll.PJ remedy of reinstatement should nm be ordered. Accordingly, the Commission having been satisfied the employer contravened Part 12 Division 5 of the Act when dismissing Mrs Cooke orders that the employer reinsrate Mrs Cooke to her former posirion of Registered Nurse a! the Seven Oaks facility of the League. Mrs Cooke is to be reinstated on conditions no less favourable than th= on which she was employed immedfauely before her dismissal. The Commission further orders the employer pay Mrs Cooke the remuneration lost by her because of the dismissal. As the Com.mission was infomred that Mrs C00ke has not derived any income since her dismiss2J, HO order in this respect is made, The Commission further orders that Mrs Cooke· s continuity of employment be deemed not to have been broken as a result of her dismissal on 16 May 1996. The Commi~~ion further orders that Mrs Cooke is to repay any amount paid to her by or for the employer on her dismissal. The date of remstatement is 16 May l 996. however, the practical reinstatement is to occur no later than 6 January 1997. Order accordingly G.K. FISHER, Commissioner. Appearances:-- Mr S. Ross, Queensland Nurses' Union of Employees, for the applicant. Mr S. Nance, Queensland Chamber of Comnierce and Industry Liirlt,;d, Industrial Organisation of Employers, witJ1 him Mr C. O'Brien, lm tJie respondent. Operative Date: NiA Dedsion Reinstatement Released: 24 December 1996 10 January, 1997 -- 2 of 2 --