Cooke v The Queensland Spastic Welfare League [1996] QIRC 800 (1996) 153 QGIG 1166

1166 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 December, 1996 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations A ct 1990 s. 295 - applic ation for rein statement Marleen Cooke AND The Queensland Spastic Welfare League (No. 8/057 of 1996) COMMISSIONER FISHER 21 November I 996 Rems tat ement - Dismissal - Tennination of Employment - Reference to Ami-Discrimination Act 1991 - Reference to Industrial Relations Act 1990 - Application granted - Paities to confer on remedy - Report to Commission within 14 days of date of decision. DECISION The Queen sl and Nurses' Union of Employees (QNU) has applied for the reinstatement of their member, Marleen Cooke, to her former position of Registered Nurse with The Queensland Spastic Welfare League (the League). An order for lost wages between the date of di smissal and th e date of reinstatement is also sought. The facts in this matter are general ly agreed. Mrs Cooke commenced employment with the League as a Registered Nurse at Seven Oaks Residential Centre on 22 June 1977. Mrs Coo ke turned 60 years of age on 16 May 1996. In May 1995 M1s Cooke applied for. and subsequently was granted, approval for lo ng service leave to commence in late April 1996. 21862_ 1. DOC r I 6 December, 1996 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1167 On 10 November 1995 M1s Cooke received a letter concerning the League's retirement policy. It contained the fol lowing information:- "As you are aware. at the time of your commencement with the League a policy of compul sory age retirement was in place. This policy required chat male staff ordinarily retire on their 65th, and female staff retire on their 60th birthdays. The policy al so provided that within 6 months prior to retirement date. a staff member could apply in writing to the league fo r an extension of serv ice. These extensions may be for a maximum of 12 months. A~ you will reach your 60th binhday on 16 May 1996, I would like to invite you to nominate a retirement date, or a lternatively. apply for an extension of service. A thi rd option is to apply to 1he League to waive the retirement tenns of your employment agreement.". Further details regarding how Mrs Cooke was to advise of her intentions was also in cl uded. By letter dated 3 December I995 Mrs Cooke advised the League that her pre fe rred option was to have 1he "compulsory (60 years) age relirement condition in th e employment agreement" waived. When Mrs Cooke had nOI received a timely response to her letter she contacted the QN U. who wrote to the employer on 16 Fe bruary 1996 advising that the League's policy of requ esting an employee to nominate their retirement date was out of date wit.h contemporary industrial practice. The QNU expressed the view that it constituted discrimination on the grounds of age. The Union requested the employer's reconsideration of the matter. On 26 February 1996 the League responded to the QNU advis ing it requ ested the in fo rmation in accordance with its personnel policies and procedures. It also advised its actions were consistent with s. 268 of the Anti-Discrimination Act 1991. By letter dated 12 April 1996, Mrs Cooke received the first indication from her employer of its inab il ity to agree to wai ving the co mpulsory age retirement fo r her. The lelter funher indi cated Mrs Cooke would be required to retire on J6 May 1996, her 60th birthday. The QNU again wrote to the employer on 18 April 1996 expressing concern that the em pl oyer' s actions with regards to Mis Cooke were discriminatory . The employer responded on 26 April 1996 setting out its rati onale including: - When Mrs Cooke joined the League in 1977. one of the condit io ns of service wa~ that male employees retire on th ei r 65 th bin.hday and female employees retiJe on their 60th bi nhday. This po] ic y was brought to the attent io n of new employees. In 1986 Mrs Cooke signed the acknowledgment of contents of the revised Personnel Manual; lhe contents regarding re tirement were unchanged. * The Leagu e's actions were consistent with s. 268 of the Anti- Discrimination Act 199 I . In addit ion , the League said Mrs Cooke's lo ng service lea ve had been inad venently approved and indicated it might be prepared to discuss an extension beyond J6 May 1996, but Mrs Cooke had been re luctant to do so. By letter of l 6 May 1996, the League confinned it5 requirement of Mrs Cooke to retire that day. her 60th bi11hday . Tiie Q NU raised a number of quest ions for consideration in this maner. The fi rst set of questions dealt with the operation of relev ant legislation. Mr Ross, appearing for 1he QNU. comended that the existence or o therwise of an agreement pursuant to s. 268 of the Anti-Discrimination Act 1991 was irre levant because of the e ffec t ofs. 291(2)(b)(v) of the Industrial Rela1io11s Act 1990. This section provides, i111er alia, that a reason for dismissal is not lawfu l if it is on the basis of an attribute for which discrimination is prohibited under the Aflti-Discriminarion Act 1991. Mr Ross took the Commi ssion to s. 7 of the Anti-Discrimmation Act 199 l which sets out the Variou s attributes for which discrimination is prohibited. Relevant to this case are the attributes of age (s. 7( 1)(1)) and sex (s. 7(1)(a)). Jn relation 10 the attribute of sex, Mr Ross exemplified his point by arguing that had M rs Cooke been Mr Cooke, tlie dismissal would not have occurred a5 men were permitted 10 work until their 65th birthday. In support of hi s arguments under this heading. Mr Ross relied on the decision of de Jersey P. in Rebel Uquor Pty Lid tlas Black Nuggett Hotel-Motel, Moranbah v. Felicity Anne Best (153 QGIG 539). Mr Ross then contended that irrespective of the dismissal being for a prohibited ground, it was harsh, unjust or unrea5on ab le . In this regard, Mr Ross said Mrs Cooke had been denied procedural fairness in accordance with s. 292(1) of the Industrial Relations Act 1990. In additio n, the employer had acted in breach of s. 293 of the Act. wh.ich provides that an employer may di smiss an employee only if the required period of notice had been given . In lvlrs Cooke's case 5 weeks notice wa5 required, however, as Mrs Cooke only received the letter on 16 April 1996 advisi ng of the League· s requirement for her 10 retire, the m in imum period of notice was not m et . In response to the League' s contention its actions were in aocordance with s. 268 of the Ant i- Discriminaticm Acr 199 I, Mr Ross di sputed that an agreement between the League and Mrs Cooke for her retirement exis ted at any time during her employment. While he conceded the League's Personnel Manual contained, at least from 1986, an age based retirement p0licy, he said this p0licy was not a condition of Mrs Cooke 's employment contract. express or implied. To support his argument Mr Ross referred to various passages in the High Court decision in By rne and Fr ew v. Australian Airlines Ltd. ( 1995) 13 1 ALR 422. In the altemative, if an agreement had existed. it wa~ revoked or amended by various exchanges of correspondence. For the employer, Mr Nance argued that Mrs Cooke's co ntract of employment came to an end on her 60th birthday. A~ a result no dismissal occurred to enliven the provisions of Part 12 Di vision 5 of the Industrial Relations Act 1990. Mr Nance al so contended that the employer's actions were consistent with s. 268 of the Ant i- Disc rimination Act 199 I which sets out tran si tio nal provisions about compulsory age retirement. These pro visions have application in defined circumstances for employees whose compulsory retireme nt age was set on or before 30 June 1994 or speci fied fo r a person under a previous agreement. Mr Nance said the League 's retire.men! policy constitu te.d a "previous agreement" in tenns of the A11ti-Discrimina1ion Act 199 1, hence the League's actions in requiring Mrs Cooke to retire were lawful. In respect of the President's decision in the Rebel Liquor ca,;e, Mr Nance argued that the tran si tional provisions provided in s. 268 were not an exem pti on. It was not included in the body of that Act along with o ther exemptions but inserted at the rear in the miscellaneous section. The effect of this, it was submitted, was to permit the pre 19 94 arrangements to remain in place. In any eve nt s. 32(9) of the Industrial Relations A<:t 1990 required the Commission, in exercising its jurisdiction. to take into account the provisions of the Anti-Discrimination Ac1 J991 relating to discrimination in relation to empl oyment. This allowed the Commission to have regard to the transitional provisions of th e Anti-Discrimination Act 1991. The first matter 10 be determined is whether the cessation of Mrs Cooke 's employment with the League constituted a dis mi ssal such that the dismissal provisions of th e Industrial Relat ions Act 1990 are enlivened. l am of the view that Mrs Cooke was dism issed from her employment. The o bj ects of Pan 12 Division 5 of the Industrial Relations Act 1990 are to give effect to various Inte rn ational Labour Organisation Conventions and Recommendations, including the Tennination of Employment Convention. Article 3 of that Convention defines the lenns "termination" and "termination of employme nt" as meaning termination at the initiative of the employer. I agree with the reasons expressed by Hal l CC in Cowan v. Trinolea Proprietary Limited (148 QGIG 639-44) that the te nn s "te nninate" and "termination" in the Industrial Relatimls Act 1988 (Cwlth) are to be given the same meaning as the words "dismiss" and "dismissal" in the Queensland Act In this jurisdiction the meaning of the tem1 "dismissal'' has also been taken to mean dismissal at the initiative of the employer and without the genuine consent of the employee (see Ma bo v. Linkup 149 QGIG 775 - 77). In my view, although Mrs Cooke may have understood Lhe League's po li cy on retirement, by the early 1990' s she believed it no longer had relevance as a result of the introduction of anti-discrimination legislation. More imponantly. as it relates to the severing of the employment relationship. the employer initiated the action 10 cease the relationsh ip and it is clear on the evidence that Mrs Cooke did not co nsent to its ending. It is 2 I 862_ I. DOC -- 1 of 2 -- 1168 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 December, 1996 al so relevant to note that the employer's letter of 16 May 1996 referred toil!! reguiremenc for Mrs Cooke to retire (my underlining). In this light, the Com.missio n can only conclude that Mrs Cooke was dismissed from employme nt and consequently the dismissal provisions of the !11dus1rial Relations Act 1990 are enlivened. There is no doubt Mrs Cooke's employment cea~ed due co her age and sex. It was not for rea,;ons re lating to conduct. capacity and performan ce. The operational requirements of 1he business were not argued by the employer. In any even!, as Mr Ross pointed out, under s. 291(2)(b)(v) of the lndusrrial Relarions AcI /990, a reason i s no1 valid i f it is for an attribute fo r which discriminaiion is prohibited under the A111i -Discriminmi or1 Act 1991. Mr Nance urged th e Commission IO take a broad view of the Anti- Discrimination Act 1991 relying ons. 32(9) of 1he Industrial Relations Act 1990. While nol expressly dealing with this in 1he Rebel Liquor case, i1 is appare.nl from his reasoning thal the Pres id ent believed this provisi on obliged the Commission co take into account maucrs of discrimination arising oul of the A111i-Discriminu1ion Acr 199 J in examining employment relationships. Yet in determining whether a dismissal is invalid ba~ed on an attribute for w hi ch discrimination is prohibited. the Rebel liquor case makes i1 clear lhe Commission may only look at the precise wordi ng of s. 29 I (2)(b)(v) of the lndu.Hrial Re/aIions Ao 1990 and s. 7 of the Anti•Discriminwirm Act 1991. The Presiden t has recen tly considered the interpretalion of s. 291 (2)(b)(v) of the lnd11s1rial Relarions Acr 1990 in the Rebel Uquor case. Although the issue before the President re l med t0 marital status, th e decision of the President is directl y apposite IO the present mauer. Be fore applying the President's rea~ons to this case. I shou ld add thai the employer did nor argue pursuan110 s. 291(3)(a) of the /ruiu.<trial Relations Ac11990 that de.spite a matter mentioned in s. 291(2)(b)(v) a reason is valid if it is ba~ed on the inhercnl req uirements of the particular position. Given Mrs Cooke's posi1ion a, a Regis1ered Nurse. it is unlikely that such a provision would be rele van1. In his decision in the Rebel Liquor case the Preside n1 said:- ··1n my view, the language of s.291(2)(b)(v). which precisely mirrors that of s.7( I) of 1he Ami-Discrimination Acr /991, leaves no doubt but thal a rea~on for 1e rmina1 ion is not valid if based on an attribute for which discriminaiion is prohibited by the AnIi-Discriminmion Ao 1991. II does nm matter 1ha1 under that Act, an exemption may app ly and render otherwise discriminatory conduct lawful. T he relevance of such exemptions has apparenlly nm been imponed in to the /11d11s1rial Rela111ms Act 1990. Section 291 does not say, for example, 1hat a rea~on is not valid if in contravention of the Anti-Di,;crimination Act; nor docs it say that a reason is not valid if based on an attribu1e for which discrimination is prohibiled .. . in the panicular circumslances of the ca.se (or, subject to the inapplicab il itv of any exem111ion) . I therefore conclude that on the natural interpretation of s.291(2)(b)(v), jf a reason is, a~ here. based on any of the attributes on the basis of which discrimination is prohibited by s.7, then the reason is necessaril y invalid: the app licabil ity of an exempLion under, say, s.31. although relevant to the wider ques tion of lawfulness of conducl under 1he Anti- Discriminuriofl Au 1991, is 001 relevant to 1hc de1ennination of the validity of the reason for dismissal under rhe Industrial Relarion.< Acl 1990:·. Applying this rea~oning 10 Mrs Cooke·s case, it is apparent that because she was dismissed on the base of age and sex, her dismissal was based on attributes for which discrimination is prohibited under s. 7 of the Ami• Discrim1nmion Acr 1991 The reason must therefore necessanly be invahd. According to the President· s reasoning, it does not matter whether an exemption existed in tem1s of detem1in in g the validity of the reason for dismissal under the Industrial Relarions Acr 1990. Whiles . 268 of the Anti• Discriminarion Ac1 /991 is not included in subdivision 2 of Part 4 - Areas of Ac1ivity in Which D1scnmination is Prohibited of the Ami-Discriminarion ACI 1991, ii is still in the nature of an exemption albeit perhaps of a more temporary nature 1han those specified in sections 25-36 inclusive. To paraphrase the Presidenfs decision. s. 291(2){b)(v) of the lnd1,.11rial Rela1ions Act 1990 does not say, for example, that "subject to s. 268 of the Ami - Disc rim111ation AcI 1991, an attribu1e for discrimination is prohibited under that Act" . Mr Nance contended thal Part 12 Division 5 of the lndusrriol Relwions AcI 1990 did noi have 1he e(fect of rewriting contractual relationships 1hat exis1ed between The Queensland Spastic Welfare League and its employees to the extem it rewrote agreements by amendi ng the concluding date of an agreemem 10 an indefini1e duration. Although it may be true to argue this was noi the in1en1 of the Legislature, the interpr e1a1ion of s. 29 I (2)(b)(v) given by the President means this was the effecl. While it is open to the employer to argue the lawfulness of its actions under the Anii- Discriminarion Acr 1991, the rea~on for Mrs Cooke's dismissal rendered it unlawful under the lndusrrial Relmions AcI 1990. On the basis of this finding alone ii is unnecessary for me to consider whether the dismissal was hars h, unjus1 or unreason ab le for any of the argumenL~ put by Mr Ross . Having reached this finding, a consideration of remedy would usually now be entenained As Mr Nance had no instructions in the event I found against his client, he rec1ues ted the Commission direct the parties to confer and if no reso lu 1ion could be achieved then the Commission proceed to de1em1.ine the matter. A lthough Mr Ross and Mr s Cooke would clearly prefer an immediate ou1come detennined by the Commission. no particular oppos ition w the course proposed by M r Nance wa~ expressed . The parties are directed 10 confer on an appropriate remedy and to advise the Commission within 14 days of the. date of r elea~e of this decision a~ to whe ther a resol ution has been achieved . In the event it has not the Commission wi ll proceed to determine the matter. however. the partie.~ wi ll be given the opponuniry if required 10 address the Commission. The Commission orders accordingly. G.K. FISHER, Commissioner. Appeurw,ces: - M r S. Ross. Queensl and Nurses · Union of Employees. for the applican1. Mr S. Nance. Queensla,id Chamber of Commerce and lndus1ry Limited, Industrial Organisati on of Employers. with him Mr C. O'Brien, for the respondent. Operative Daie: NIA Dec ision - Reinstatement Re leased: 21 November 1996 ########################################################## 21862_1.D OC r II I ) I I I [ 6 December, 1996 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1169 21862_ 1.DOC -- 2 of 2 --