Cowan v Trinolea Proprietary Limited [1995] QIRC 50 (1995) 148 QGIG 639

638 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 10 March, 1995 l 0 March, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 639 ########l#/#########################1/################### QUEENSLAND IND USTRIAL RELATIONS COMMISS ION Industrial Relations Act /990 s. 295 - application for reinstatement Graham Cowan AND Trino lea Proprietary Limited (No. 8587 of /994) CHIEF INDUSTRIAL COMM ISSIONER HALL 28 February 1995 Application for Reinstatement - Unsatisfactory Evidence - Whether Wilfu l Disobedience - Effect of Wilful Di sobedience - Reinstatement Ordered. 14265_ 1.DOC -- 1 of 4 -- 640 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [10 March, 1995 DECISION "Some six or seven years ago field inspectors from the Auctioneers and Agents Act or Commission called on my office and asked were all sales staff registered and I said no, I have some probationary sales staff employed and they said that was contrary to the Act. I then pointed out to them that the application form was incorrect because it required me to sign it as an employer. Anyway there was some discussion with the field officers and they raised no objection to me employing probationary sales staff whilst they gained experience and applied for Certificate of Registration. I explained this in detail to all new sales staff and say to them that they're employed on trial, on probation for a maximum period of three months and during that time if they feel they're happy with the real estate industry and I feel that I'm happy with their work, they can apply for a Certificate of Registration and they are then fully employed as a sales person.". Graham Cowan made application for employment as a real estate salesman to Trinolea Proprietary Limited, variously kn0\\11 as Broadbeach Real Estate and The Professionals Broadbeach, on 13 April 1994. His application was successful. There is a dispute between the parties as to whether he commenced work on 18 April 1994 and immediately took leave until 22 April 1994, or whether he attended a training session on 18 April 1994 before commencing work on 22 April 1994. It is one of many immaterial disputes between the parties. I do not propose to attempt to resolve it. What is material (and clear) is that the engagement came to an end on 27 May I 994. Twenty-one days later Mr Cowan lodged an application for reinstatement. The application triggered a conference in the Commission and subsequently, a four day trial. Before reviewing that evidence it is proper that I say something about it. With the expansion of the Commission's role in reinstatement cases after the passage of the Industrial Relations Reform Act 1994 I have gradually if grudgingly come to expect a measure of embellishment in "dismissals" cases. In this case ornamentation has degenerated into fable and ideality. Mr Singer was unable to name the persons with whom he had the discussion or to be precise about when they had visited the Respondent's office. He was unable to produce written confirmation of the "permission" which he asserts those two persons gave to him. 1 am not satisfied that the conversation occurred. In the case of the Applicant, the attempts at deception are conveniently gathered together in the closing submission of Mr Sowter for the Respondent. It is however appropriate to give some examples of that which it is of which I complain. One, Mr Cowan originally told the Commission that he had conducted an auction whilst in the Respondent's service. In fact, Mr Cowan was not qualified under the law to conduct an auction and the auction to which he referred was not conducted prior to 27 May l 994. Two, Mr Cowan alleges that Mr Singer, who with his wife was the alter ego of the Respondent, did not inform him that it would be necessary for him to make application under the Auctioneers and Agents Act I find the regenerative nature of the defence equally difficult to accept. It is said against the Applicant that - J971 for a certificate in order to lawfully carry on the calling of a real estate salesman. Mr Cowan makes the further allegation that Mr Singer preferred salesmen in the Respondent's employ not to have certificates because it shifted his power relationship with his salesmen favourably to him. In fact, Mr Cowan sat for the examination which all those seeking a certificate are required to pass and, but for the termination of his employment, would have been issued with a certificate. Those events could only have happened if Mr Cowan had lodged under the Auctioneers and Agents Act 1971 an application in Form 7 executed both by himself and his potential employer in the Real Estate Industry. Three, Mr Cowan asserted in evidence that the originals of sole agency agreements were not placed in a central register or folder and on the third day of hearing. when a question arose as to whether Mr Cowan still held the original of a sole agency agreement alleged to be missing, instructed his advocate (Mr O'Brien) to assert from the bar table that such documents were kept in a central register or folder in the Respondent's Broadbeach Office. No useful purpose would be served by listing further examples. I am satisfied that I must approach the Applicant's evidence on the basis that it cannot be relied upon. Neither have I any confidence in the evidence called by the Respondent. It is not simply that the witnesses (with one exception) are the immediate family of Mr Singer and/or employees of the Respondent, though those circumstances would in themselves be reason for the exercise of caution. Neither am I much concerned about minor differences in the recollection of what was said or done on particular occasions. Such differences are perfectly understandable. I am concerned about the improbability of some of the transactions of which I have been told. For example, in explaining why it was that the Respondent employed salesmen who did not hold certificates under the Auctioneers and Agents Act 19 7 1, of whom Mr Cowan was one, Mr Singer gives this explanation: (a) he resigned, (b) he was a probationary employee, (c) he would have been dismissed for other reasons m any event, (d) he was proposing to abandon or in the alternative vacate his employment for an extended period of six weeks which abandonment or vacation would have lead to the loss of his employment, and (e) by his conduct and words after the termination on 27 May I 994 he threatened Mr Singer's personal safety and restoration of the relationship of employer and employee was impossible. Pleading in the alternative I can understand. Here probing the Respondent's case is like opening a babushka doll. It is improbable that an employer would have so many defences available in respect of a particular termination. So concerned with the state of evidence did I become that I gave the most serious consideration to refraining from determining it pursuant to s. 90( I )(b ). On balance I have refrained from doing so because I have had no argument about whether proceedings pursuant to Part 12, Division 5 Subdivision 3 constitute an "industrial cause" or whether Division 5 is a complete code excluding s. 90(1)(b), and because of the time which the matter has taken. I think there is sufficient in the evidence before me which is common ground or inherently probable to enable me to resolve the essential issues and determine the matter. To that exercise I now tum. To understand the events of the penultimate day viz. 27 May 1994, it is necessary to know something of the events which preceded it. The Respondent, so it appears, maintained a small library at its Broadbeach Office. On or about 19 May 1994 Mr Singer went to that library to fetch a book which he knew the library to contain. Mr Singer then caused an audit to the library to be taken. The audit showed to be missing two books which the register showed to have been borrowed (but not returned) by a Mr Sean Brown, and one book and some training tapes of which no record appeared. Mr Singer set 14265_1.DOC 10 March, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 641 about enquiring after the books Th . . . · e persons of whom he made enqumes included Mr Cowan and Mr S B h d ean rown a salesman h a left the Respondent's employ some short time ~fter Mr Cow:n'o engagement. The enquiries revealed nothing. Ultimate! M s· s informed M S B y. r mger . r '. ean row11 that a sum of money will be withheld from c~rtam comm1ss1ons owmg to him until the two books which he w s own to have borrowed (but not to have returned) were i , as returned to the Respondent. (Mr Cowan and Mr Sin d. , n fact upon the amount to be withheld and upon th ger ,sagreefboth · · . c amount o the comm1ss10ns owing to Mr Sean Brown.) It is Mr Cowan's evidence that Mr Sean BroWTI b I k d M c su sequent y as e r owan to return the two books to the Res on dent. Broadbeach Office without revealing the source from whi~h h h ~ obtained them and that he (M C ) • e a reluctantly) agreed to do so. (Mr Br~wn ~:~~uldu~~;::; 110~t~~~!~ as a witness.) In fact, Mr Cowan attended at the Respondent' Broadbeach Office at an earlier time than that at which he usuall s commenced on the morning of 27 May 1994 d I d y books O th f an P ace the two b t nM e comer o Mr Singer's desk. Precisely what happened o~te~n r Cowan and Mr Singer after the latter arrived at work b t~ t kose who were there and who are honest with themselves will e er now. Howe_ver, on any view of the evidence, Mr Cowan and Mr Smger became involved in a contretemps that ranged over th rooms (the sales den, the kitchen and Mr Sin e , • ree (relatively short) period of time. It is commo~ ~:o~~~ct~a~~:eo;ae;s: o~ t~e exchanges was Mr Singer's continuing demand for the name u, t e ~erson from whom Mr Cowan had obtained the books and Mr Cowan s steadfast refusal to give Mr Singer that n I language " f l • ame. use the "re usa to give Mr Singer that name" rather than th language refusal to tell Mr Singer'' quite deliberately E Me Singer's evidence Mr Cowan did tell h1·m -h • • ,ven on r ·d d h. · w O it was who had prov, e ,m with the books On M S • , • 1 · d · r , inger s evidence it was exp aine to Mr Cowan that he needed to kno th books b ·f h w e source of the - ecause I t e source were not Mr Sean Brown he (M s· ) ,fvould have to a_pologise to Mr Sean Brown for withholdingr m~ge~ rom his comm,ss· I - • ne) s - . wns. t ,s Mr Smger's evidence that Mr Co said m reply ··1 wouldn't apologise if I were you,, It wan that any reas bl - seems to me . d. . h on_a e man would have interpreted that observation as m. ,catmg t_ at m fact the books have come from Mr Brown And • :~m; ~r Singer so construed the observation. The transcri~t show~ e o owmg exchange in the cross-examination of Mr Singer. • ·'Well, I mean from the conversation vou had _.th C 27th, it was quite clear was it not th~t BroW11w1_ . t;wan on the of the books and he ga~e them to Cowan'7 - - was h e_ poslsessor · ---- e imp ,ed Ve - ·I • r • I) c ear imp ica_t,on. Would you not agree with that'> -- - -- - - it was an implication". I add, because I am entitled to have regard to a ·1 •• demeanour. that in giving that answer Mr s· ·1wd1 ness s· . · mger sm, e Mr , mger was not a witness who smiled very often. • Later in the cross-examination of Mr s· exchange occurred:- • mger the following "All right. Well h t b . . . , w a a out the inference'! What about the ~;nv;~sat,on m respect _to the inference when you said words to e e. ect about apolog1smg to Mr Brown and he said • the effect ·1 wouldn't do that if! were you'? Wasn.'t th :ordsl '.o o1ve awa)''i I . , a a c ear b . mean, wasn t he reallv saying that • k d 't b • - , \OU now on g~ over oard. Brownie reaily did it after ali and vo~ know, I m JUSt - I'm trying _____ 9 • - und I d h • - Yes, I couldn't ers an w y he skirted around it and wouldn't openly. come out Well, when he said those words did vou understand h. th t M B · 0 1m to mean a r roWTI in fact gave him the books to bring back') - - - It gave me that impression, yes.". • The witnesses had different recollections of the conclusion ofth contretemps It • M C , • e . is r owan s evidence that Mr Singer said "T ll me who gave you the books to bring back or I'll sack ou" ~ lo that effect and, when Mr_Cowan continued to refus~ to mo;u;o~h: name did m fact d1sm1ss him It • M s· , • C . .. · IS r · mger s evidence that Mr o~an said You can sack me if you like, but I'm not goin to tell you_ , a~? that he (Mr Singer) responded by rising from his c~air d saymg good-bye and good luck". Once again I do t fi ;n. necessary to resolve the conflict in th .d no • in it s· , . e ev1 ence. Assuming Mr mger s evidence to be correct I do not consider the 1 • Prop I 1· \l cone us10n er y o ows that Mr Cowan resigned h. 1 . 1s engagement The natura m_eanmg of the words used was that the engagement. would contmue ,f ,t were not brought to an end b M s·submission of M , . Y ' r mger. I accept the r O Bnen (for the Applicant) that M s· re;~rted to a ploy or debati~g trick in treating Mr Cowan's s:ate::~~ of ~s ~os1t1on as a res1gnat1on. Having heard the cross-examination ~ h r d '.~J.er I_ entertam no doubt that he at all times understood that e a 1sm1ssed Mr Cowan from his employment" on 27 M 1994. ay It is _necessary that I explain why I have placed words parenthesise. in In part my reason relates to the meaning of"dismiss": On _the most cursory perusal of Division 5 of Part 12 of the In_dustnal Relations Act /990, it is immediately apparent that the D1v1s10n ,s intended to replicate Division 3 of Part VIA of the Industrial Relations Act /988 (C'wth> R fi M. · t , s /- e erence to the in1s er s . econd Reading Speech - permissible forth of confirmm · . e purpose g an interpretat10n (Acts Interpretation Act 1954 14B(l)(c) co fi , • s. .. . . ,, - n irms one s impression. Regrettably, the verb d1sm1ss has been substituted for the verb "terminate" d th noun "dismissal'' for "termination" N t 'th t d. an e • - - o w1 s an mg that vanat1on,_ s. 288. and the Minister's Second Reading Speech make plam that. like the Australian Legislature the Q l d I egislat , ueens an , ure was concerned to give effect to the !LO C t· knmrn a T • . onven 1011 _s ermmat,on of Employment Convention I 982 Th t ~onvent'.~n does not employ the noun ''dismissal'' 'and the ver: d1sm1ss . It employs the terms "termination" "te • t " d ''t . d " rmma e an ., ermmate . By article 3 the terms "tennination" and tem1mation of employment" are defined to mean "terminaf of employment at the initiative of the employer" N d fi • 1011 appea f "t · ,. - o e m1t1011 rs o ermmate and "terminated" but n for d · . o reason appears ,, . enym~ a corresponding meaning to those parts of speech If d1sm1ssal and "dismissal from employment" are differe~tl construed the legislative scheme will miscarrv "D. • I" • y d f . .. o - 1sm1ssa 1s a wor o very ambiguous meaning, Graham v. Minister f~dustry and Commerce and Molloy [1933] IR 156 t 164 for htzg1bbon J It b d a per d . . · can e use as a convenient expression for the etermmat1011 of an emplovment ibid It . . .. . . • , • seems to me that the expression d1sm1ss an employee" at Division 5 of Part 12 ~e r~ad as referr'.,ng to "a determination of employment initia~:~ y an employer and that ''dismiss" and "d. • d" · _ 1sm1sse may be ~1ven. c~.rr~spondmg meanings. On balance I consider that d1sm1ss . d1sm1ssed" and "dismissal" at D. • • 5 f p h ld . 1v1s1011 o art 12 s ou be given the same meaning as ·'terminate'' ''t • d" and ··te · · .. , ermmate - rmmat1011 at Division 3 of Part VIA of the ! d • l Relatwns Act 1988 (C'wth). n ustna The_ other reason for use of the parenthesise is that the expression_ ''dismissed from his employment" avoids determination of the issue whether Division 5 of Part 12 is about te~matwn of the contract of employment or termination of the re at10nsh1p of employer and employee. The issue is one on ;h1ch different members of the Industrial Relation Court of ustralia have expressed different values see Siagian v S 1 Pty. Ltd - (1994) 122 ALR 333 and ,APESMA v.•Sk~7:d Engzneerzng Pty Ltd (1994) 122 AIR 471 I h h d , · ave not ad the a vantage of argument upon the point. It is not necessary for me 14265_1.DOC -- 2 of 4 -- 642 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 10 March, 1995 to decide it. On the facts Mr Singer (on behalf of the Respondent) both repudiated the contract of employment and decisively ruptured the relationship of employer and employee on 27 May 1994. It is however necessary for me to deal with the argument that, if termination of the contract of employment is the subject matter of Division 5 of Part 12, the termination was not at the initiative of the Respondent. The argument is that it is not repudiation of the contract but acceptance of the repudiation which brings the contract to an end. The answer, or so it seems to me, is that developed by Gray J in APESMA v. Skilled Engineering Pty Ltd (I 994) 122 ALR 471 at 482: "The Convention, therefore, focuses on what the employer has done to bring about the end of the employment. It is the employer's act or acts which is or are regarded as the 'termination'. As Article 10 illustrates, the employer's act or acts are to be regarded as the 'termination', irrespective of their validity. That Article contemplates that the appropriate body could declare the termination invalid. In other words, the appropriate body could declare that the employment continued, notwithstanding the employer's or acts which amounted to 'termination'. It must be remembered that the Convention is an international instrument, which may bind countries whose law accepts the possibility that an employer can by unilateral act bring about the end of the employment as well as countries like Australia where the law rejects this notion. The Convention covers all possibilities by focusing on the act of the employer, whether effective or not to bring about the end of the employment, and treating that act as the 'termination'. Subdivision B is not only intended to give effect to the Convention, in some respects it echoes the prohibitions found in the Convention. The prohibitions expressed in Arts 4 and 7 of the Convention have found their way into s. l70DE and s. J 70DC respectively. The entitlements given by Arts 11 and 12 are reflected in a prohibition in s. 170DB. The structure of the provisions of Subdivision B is prohibitive. There are numerous provisions that 'an employer must not tem1inate an employee· s employment unless ... '. The focus is thus on the employer's conduct, rather than on its effect. Both the requirements that expressions in Division 3 of Part VIA be given the same meanings as in the Convention and the form of the provisions of Division 3 and therefore suggest that 'termination' refers to what is done by an employer attempting to bring about the end of the employment. The legislative intention is to permit applications under s. 170EA of the Industrial Relations Act 1990 if an employer has done some act terminating or purporting to terminate the employment. irrespective of whether the act is effective to bring about the termination without some further act on the part of the employee. The ·termination' referred to in s. I 70EA and in s. 170EE is the act of the employer If the act of the employer is effective to terminate the contract of employment, remedies appropriate to that situation can be granted. If the contract remains on foot, the court still has the power under s. l 70EE( I) to 'make such orders as it things appropriate in order to put the employee in the same position ( as nearly as can be done) as if the employment had not been terminated'.". On the thesis that Division 5 of Part 12 protects against ·'termination of the contract of employment" that passage seems to me to be equally applicable to that Division, save that the range of remedial orders available to the Commission may not be as extensive as that available to the Industrial Relations Court of Australia. On any other view, for the reasons developed by Wilcox CJ in Siagian v Sane/ Pty Ltd ( I 994) I 22 ALR 333 at 349 to 350, the utility of the Division would be very limited. It was for those reasons that I resorted to parenthesise. J tum now to the question whether the Respondent had a valid reason for the dismissal within the meaning of s. 291 (I). A reason is not valid if it is any of the reasons at s. 291 (2)(b ). There seems however to be no justification for treating the list as exhaustive. It is clear that at common law, disobedience of a lawful order justified summary dismissal, Adami v. Maison Deluxe limited ( 1924) 35 CLR 143. Unsatisfactory though the evidence relating to Mr Cowan's engagement may be l have little doubt that an order to divulge the source of recovered property of the Respondent was within the scope of the Respondent's authority. It is, however, far from obvious that an order to divulge the name of the source of the property given after the employee has by words or conduct identified the source is within the scope of the engagement. If indeed the true requirement is that in order to justify summary dismissal an order must be "reasonable'' as well as lawful, a view which Dixon J. seemed to accept in 7he King v. Darling Island Stevedoring lighterage Co Limited_ (I 938) 60 CLR 60 I at 621 to 622 ( compare McCarry GJ, The Employees Duty to Obey Unreasonable Orders ( 1984) 58 AU 32 7), I have not the least doubt the order was reasonable. It was not about substance. I reject the explanation given by Mr Singer in the witness box that he wished to know the name out of hope that he might be able to track down the missing book and training tapes. There was no reason for thinking that the book and the tapes for whom a borrower had not been recorded were in the same hands as the other two books which had been signed out in Mr I3r0\vn's name. And Mr Cowan had told Mr Singer the source of the books although he had not used Mr Brown's name. In my view the continuation of the demand had nothing to do with the recovery of missing property or, to deal with another explanation, concern for offence given to Mr Brov.n. It was about pride and an inability to distinguish between touching a forelock and respect. Mr Singer's exchange with Mr O'Brien in the course of cross- examination is I think revealing. "I3ut vou are a bit of a tyrant in your own kingdom though, aren't, vou, Mr Singer? - - - - I think anyone who is in charge ofthei; o\vn business is. Like you are. sir, in your business.''. In my view if ·'valid'' at s. 29 I (I) of the Industrial Relations Act /990 means "valid at common law", there was not a valid reason for Mr Cowan's dismissal. I should add that I doubt that "valid" at s. 291(1) does mean "valid at common law". The purpose of the Division is to give effect to an I.LO. Convention which is intended to operate in jurisdictions which do not have a common law tradition as well as to operate in this country. I rather think that the meaning of "valid" is to be gleaned from the scope and purpose of the Division and the intent of the Convention, and that the intent of the Legislature was that the Commission should develop its ov.,n body of case law on a case by case bases. However none of those issues need concern me now. It seems to me that if Mr Singer (on behalf of the Respondent) had the right to dismiss Mr Cowan in consequence of the latter's refusal to name the person from whom he acquired the books, to choose to exercise it in all the circumstances of the case was to abuse the right. In the circumstances it is proper to brand the dismissal as "harsh, unjust or unreasonable'' within the meaning of s. 291(2)(a). The consequence is that the dismissal cannot be held to be a dismissal for a valid reason. I should, briefly, say something about the other ''defences" consider that I am justified in being brief for the reason which previously gave. I do not believe that there was a factual basis for all of them. It may well be that the evidence given by the Respondent's witnesses as to one or (perhaps) more than one of them 14265_].DOC 10 March, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 643 is correct. The Respondent's conduct has denied the opportunity of identifying any such defence. The Respondent must bear the consequence of that. The claim that Mr Cowan was a probationary employee is not supported by anything in the documents. The advertisement placed by the Respondent in seeking staff gave no indication that successful applicants would be expected to serve for a period on probation. The application form completed by Mr Cowan contains no suggestion that a period of probation attached to the appointment. The unsigned standard fom1 contract of employment, which Mr Cowan denies having seen and which Mr Singer says he drew to Mr Cowan's attention, contains no suggestion that the appointment is an appointment on probation. I am not prepared to find that Mr Cowan held a probationary appointment. (It is therefore unnecessary to explore the concept of"probation".) It is clear that Mr Cowan did purport to sign sole agency agreements on behalf of the Respondent and that he signed an auction agreement on behalf of the Respondent. It is clear that he should not have done so. If another agent (for the vendor) had sold the properties concerned, the Respondent would have experienced very great difficulty in enforcing its contracts. It is equally clear that Mr Cowan derived no advantage from signing the agreements. He did not keep them to himself so that only he might have the opportunity of finding purchasers for the relevant properties. He disclosed the agreements to the Respondent. The properties were listed in the ordinary way. I consider that the lapse was due to the rudimentary training with which Mr Cowan had been provided and the inadequacy of the supervision exercised by the Respondent. In my view if Mr Cowan had been dismissed on this ground he would in all probability have succeeded on application under s. 297. Mr Singer himself says that, if this ground had stood alone, it would have led to counselling and warning and not to dismissal. On balance, I think that it is probably true that Mr Cowan did have a conversation with another salesman (Mr Woods) about whv Mr Woods was "putting through the agency'' a strata title unit in ~ block of units to which that salesman held management rights. In fact, that salesman did "put the unit through the agency''. In fact, the Respondent suffered no loss. I am not satisfied that the conversation was a manifestation of a natural tendency to disloyalty and dishonesty on Mr Cowan ·s part. I consider it entirely probable that the ill-trained and unqualified Mr Cowan was seeking enlightenment. If the Respondent chooses to engage salesmen who do not hold certificates under the Auctioneers and Agents Act 19~1, the Respondent cannot be heard to protest too shrilly that those salesmen have an inadequate understanding of their functions and obligations. Once again, I consider that if Mr Cowan had been dismissed on this ground he would have succeeded in an application under s. 297. The allegation that Mr Cowan was proposing to return to Adelaide for a period of six weeks is another matter. First I consider that if Mr Cowan had sought to return to Adelaide for such an extended period on short notice, the Respondent would, have had a valid reason for dismissing him. Second, there is strong evidence for believing that Mr Cowan did intend to return to Adelaide. Mr Cowan had previously resided there. He had previously been the proprietor of a security service in that city. He admits that at some point he would have had to return to Adelaide to finalise the sale of his business and bring his family to the Gold Coast. Third, the Respondent's claim that Mr Cowan proposed to return to Adelaide for six weeks is supported by the evidence of an independent witness, a woman who serves in a Charcoal Chicken shop adjacent to the Respondent's Broadbeach Office. I consider the independent witness (Ms Widdison) to be entirely honest. I have to bear in mind also that she had only the most casual acquaintance with Mr Cowan. She says that he visited the Charcoal Chicken Grill a couple of times a week to purchase a salad roll at lunch time. On the Respondent's evidence Mr Cowan was away so frequently that he was at work for only four of the six weeks of his engagement. He would have encountered Ms Widdison on approximately eight occasions. There is a dispute as to whether Mr Cowan told Ms Widdison that he was returning to Adelaide "for six weeks" or "in six weeks." The language is so close Ms Widdison's acquaintance with Mr Cowan so limited and the conversation, so brief: that I am not prepared to shut out the consideration that Ms Widdison may be honest but mistaken in her recollection. If Ms Widdison 's evidence is put aside, the Respondent has the problem that Mr Cowan's plans were discovered by Mr Singer's wife on the day before his dismissal. The information is said to have come to Ms Singer via an employee in the rental section of the Respondent's business. It is said that Mr Cowan, who was behind in his rent, had discussed with her the prospect of paying six weeks in advance when he went to Adelaide. Why Mr Cowan should have had such a conversation, and why a recent arrival on the Gold Coast would wish to retain premises for a period of six weeks whilst he was in Adelaide rather than take new accommodation on his return, nowhere appears. I am not prepared to find that Mr Cowan was proposing to return to Adelaide for six weeks. I think it likely that there was some sort of an altercation between Mr Cowan and Mr Singer immediately following upon Mr Cowan's dismissal. However, nothing in the evidence causes me to believe that Mr Singer was put in real physical fear. At worst Mr Singer tried to tug certain papers from Mr Cowan's hand and Mr Cowan pulled himself to his full height, stood close to Mr Singer and warned Mr Singer not to touch him. If I have underestimated the vigour of what occurred, the fault lies with the evidence. For example, in discussing the altercation, Mr Singer says of Mr Cowan that the latter said that he would "sue the ass off you'' and "I always win''. If be! ieved, that evidence would certainly poison the well. Mr Cowan earlier attributed to Mr Singer the equally poisonous statement ''you haven't lived in Queensland long enough to know how it operates". With respect to them the parties have engaged in a fom1 of competition ill-suited to proceedings in this Commission. The dismissal took place on 27 May 1994. The orders which may be made in respect of it are therefore those set forth at s. 297 in its original form, sec s. 622( I). In its original form s. 297 was (and is) a cause of great difficulty. The word ·'may" used in relation to a power indicates that the power may be exercised or not exercised at discretion, Acts Interpretations Act I 954, s. 32 CA(!). It is however difricult to accept that, notwithstanding the detail in which the prohibitions on dismissal are now spelled out, the Commission was to have a very general discretion to deny relief on the ground of "appropriateness." Here, however, the only basis on which that might be done is the illegality of the engagement. The Respondent expressly disavows reliance upon the breach of the Auctioneers and Agents Act l 97 l involved in Mr Cowan 's engagement. In those circumstances, deprived of argument as I am, I decline to decide the point and treat the discretion as limited to choice of remedy. There is no reason why I should not declare the dismissal to have contravened the Division and I do. Equally, subject to the imposition of a requirement that Mr Cowan obtain a certificate under the Auctioneers and Agents Act 197/. I consider an order for his reinstatement to be appropriate. What is "appropriate" must be evaluated having regard to the purpose of the Division, i.e. discharge of the nation's international obligations. The English language version of the Termination of Employment Convention 1982 appears as Schedule I O to the Industrial Relations Act I 990. By Article I O reinstatement is the favoured remedy if "practicable". Whatever "practicable" may mean, and it is a matter of debate, reinstatement is not impracticable because it is "inconvenient" and ''difficult'', Liddell v. Lembke, No. NI300 of I 994, unreported, I 5 December 1994 at 44 per Wilcox CJ and Keely J. Further, it would be inappropriate to require the Respondent to pay compensation to the 14265 !DOC -- 3 of 4 -- 644 QUEENSLA D GOVERNM ENT INDUSTRJAL GAZETTE applicant Nol onl) was the engagement unlawful, but I ca nn o1 find on the evidence before me that Mr Co"nn would have succeeded in selling any particular property if hb employment had not been terminated on 27 May 1994. Indeed, on the evidence before me I cannot form an opinion as 10 how long the employment would have con tinued. The aurition rate in relation to inexperienced real estate salesmen is no1oriously high. Mr Cowan moy ultimately have resigned without having sold a property I have co nsidered but am not moved b) arguments about the alleged embarrassment of Mr Cowan returning 10 the Broadbeach Office 10 be emplO)Cd on a commission only basis. I ha ve formed the strongest impression that both Mr Cowan and Mr Singer are resourceful and resilient men well capable of o ,er-ri ding inconH:nience and conquering embarrassment. Pursuant to s. 297(2Xb) I order that Graham Co"an Ix: reinstated to his former employment as a Real Estate alesman at the Broadbeach Real Estate Agency o perated hy Trinoela Pty Lid provided that Mr Cowan is not to pcrfomt the work of a Real Estate Saleman until such time as he is the holder of a certificate under the Auctioneers and Agents Act /9 7 I. In the expectation that Mr Singer will co-operate in assisting Mr Cov.an 10 obtain such a cenificate I make no ancillar) orders. I do give Mr Cowan libert)' 10 apply for ancillary orders on 48 hours no1ice. D.R. IIALL. Chief Industrial Commissioner. Appearances:- Mr P. O"Brien for the Applicant. Mr C. So,\1er of Queensland Confcdcra1ion of Industry Limi1ed, Union of Employers for 1he Respondcn1 Operative Date. IA Decision - Reinsta1emen1 Ordered Reka:.cd: I March 1995 ####################################################### [ 10 Marc h, 1995 I 0 March, 1995) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 645 -- 4 of 4 --