David Jones (Australia) Pty Ltd v Mason [1993] ICQ 25 (1993) 144 QGIG 378

378 QUEEN SLAND GOVERNMENT IND US TRIAL GAZETTE [8 October, 1993 ##### # ## # ## # ############# ## #### ##### ##### ## ###### ### QUEENSLAND IND UST RIAL COURT Industrial Relations Act 19 90 s. 9.2(2) [n ow s. 96(2)) •- appeal from deci sion of industrial co rn rn i ssion David Jo n es (Au stralia) Pty. Limit ed AND Barba ra Ann Mason (No. C13 of 1993) JU STIC E MACKENZI E, PRESIDENT 24 August 1993 Appeal - Decision of Indu st ri al Commission - Sect i ons 11 .37 and 11.38 (now sect i ons 174 and 175) - Reinstatement - Re- employment - Unfair D i smissa l - Co mpensation - O rders - Subject to Appeal or Review under another Act or Law - Acts Interpretat ion Act - "Act" - "Law" - "Law of State" - Applicati ons Di smissed. REPO RT ON JUDGMENT (AS EDITED) In giving his Ju dgment from the Bench on 24 August 1993, th e Pres ident sa id:- "Thi s appeal ra i ses a short but importan t po int concerning the construction of secti on 11 .37(3) [now s. 174(3)] of t he Industrial Relations Act 1990. Section 11.37(3) [now s. 174(3)] prov ides an appli ca ti on, that is to say , an applicati on for rei ns tatement, cannot be made i f the d is mi ssa l i s subject to appea l or review under another Act or Law. Before turning to the criti ca l i ss u es of interp re tation I should set the argumen t in its context. Sect ion 11.37 (n ow s. 174) relevantly provides that an employee dismissed from em pl oyment may make an application for relief under section 11 .38 (now s. 175). That reli ef ca n be one of t hree ki nd s. Firstly, reinstatement in the former posi tion wi thout preju dice to the former employment conditions. Second l y, if re i ns tate ment to that p os ition is inappropri ate re- employmen t in some other position on te rms and cond iti ons determin ed by the Indu str ial Comm iss i oner. Thirdl y, if neither of th ose orders is appropriate, payment of an amount of comp ensat i on determined by t he Industri al Commission in accordance with a formula in section 11.38(3) [now s. 175(3)]. If reinstatement is ordered, orders that the employer pay a sum comprising l ost wages from the date of d ismissa l to the da te of complian ce with the order an d that th e employee repay amounts pa id on account of the termination of employment may be made. It is abundantly pl ain tha t reinstat ement proceedings depend on the prem ise that the contract of em p loyment ha s been brought 10 an end. The references to reinstatement and re-employment support this view. See al so Thorpe -v- Sou th Australian National Football League 1974 10 S.A.5.R. 17,35. In determini ng under section 11.37 (now s. 174) and ~ection 11.38 (now s. 175) ~vhe th er re lief should be gi ven , the i ss ue 1s whether there are circumstan ces demonstrating th at t he employer has abused th e right to di sm i ss or whether th e di smi ssal was ha rsh, unconscionable, u nfa ir or som e like expression, in all of t he ci rcumstance s. It is not essen ti al to inquire into the l awful ness of the di smi ssal. There is an underlying assumption that a lawful di sm issa l may _have el ements associated wit h it th at entitle an empl oyee to rel1el under section 11 .38 (now s. 175). A claim in t he 51Wreme Cou rt proc eed i ngs is for damages for breach of contract of employmen t on wro ngful dismissal. A n ecessary elemen t of the cause of action is that the termination of the employment is unlawful. It m ay be lhat in proceedi ngs under sect ion 11.37 (now s. 1 74) and 11 38 (now s. 175) there will be cases in which it w ill ~pr,ear that the di sm issa l was unlawful, but that i s only an incidental fac tor no t an essential one 1n t hose proceedi ngs . The identity of i ssues, if that occurs in Industrial Com miss ion and Supreme Court proceedin gs, may have evidentiary consequences i f both pro ceedings go to a hea ring, but because t~e ultimate question to be determined in each proceeding is di fferent I am no t pe r suaded that there i s anything tha t di cta t es that an election mu st be made to proceed w ith one proceeding rat her t ha n the other. .,., 8 October, 1993] QU EENSLAND GOVERNMENT INDUSTRIAL GAZETTE 379 M r M urdoch's major submi ss ion was th at sect i on 11 .3 7 (now s. 174) precluded the bringing of the application before. the Indu st ri al Commission. The words ·sub ject to appeal or re vi ew' are the critical wor ds in my view. The ac tion in the Su p ~eme Court does not, in my opinion, fit either of th ose descriptions. Statutory pro cedures, in particu l ar ena ctments, under wh ich a pe rson who h as been subjected to discipl inary_ proceed in gs and has been dismissed or has simp ly been d1sm1ssed, c an appeal agai nst the decision or have the decision reviewed, are not uncommon. In such cases those dism issa ls wou ld be properly described as sub je ct to appeal or review under another Act. It _is n?t sugges ted that there is any such sta tutory nght available ,n th,s case. M r Mu rdoch's submi ssion focused on the addition of the wo rds 'or law'. He advanced the pro position that th ose word s m ust be given some effect and that the true meaning of sec tion 11.37(3) [now s. 174(3)) was, that a common-law re medy suc h as that for breach of contract of employmen t, had t he character of an appeal or revi ew under another law. Reference was made to the Acts Interpretat ion Act which has been su b stan ti ally amended in rece nt years. The section, now section 6, provi des in an Act, 'Act' m ean_ s an Act of the Que en sland Parliament and includes the Bri ti sh or N ew Sou th Wa l es Act that is in fo rc e in Queensland and an enactment of an earlier aut hori ty empowered to pas s laws in Queensland that has received assen t. Prima facie, n ow 'Act' means Act of the Q uee n sla nd Par liament or one of the other legislative enactments re ferred to. Sec tion 7 t he n goes on to provide, in subsection 1, 'In an Act, a re ference (e ither generally or spec i_fica ll y) to a law (inclu ding the Act), or a provision of a l aw (including the Act}, inclu des a referen ce 10 the statutory instrumen ts made or m force under the law or provision.' Subsec tion 2 then goes on to defi ne 'law· as incl ud ing a law of the Commonwealth, another State or a Territory. I a lso men ti on, although it is probably not of great signi fi cance in the context of this case, that in sec tion 36 there 1s a definition, 'law' of a Sta te includes a l aw of the State and a law in force in the State as part of the l aw of the State . The position is therefore not the same as it was befo re the amendments in 1991, 1992 and 1993 at wh ich time 'Acts' includ ed a refe ren ce to subordinate le gisla ti on. The provisi ons of the Acts Interpretat ion Act are su bj ect to section 4 which provides that the appli cat ion of the Act may be displaced, wholly or p ar tly, by a contrary in tention ap pea ri ng in any A ct . So uhimat~ly i_t is the context wh ich governs the scope of the critical phrase subJect to ap p ea l or review under another Act or law' . If sect io ns 6 and 7 of the Acts Interpretation Act apply, they provi de less support for Mr Mu rdoch's argument t ha n th_e provisi ons that t hei r predecessors might have done. If his argument is correct and an act ion for breach of cont ract 1s an ap p eal or review under another law 11 h as certa in consequence.s. No case in wh ich it appears on the evidence that a common law action for breach of contr act of employmen t wou ld lie cou ld be conducted as an application for reinstatement under the Industrial Rela tion s Act even if flagrantly un fa ir circum stance s existed in the di sm i ssal because such a dism issa l wou l d, on the argumen t, be subject to review under another law. If, however, the d is mi ssal was lawful but was done in a way t hat abuse d the employer's right to di smiss, the di sm i ssal wo uld not be su bject to rev ie w under another law and an appl ication to the Industri al Commission wo uld lie. In my judgment the l eg islature cannot be ta ke n to have intended to ma ke th is distinction. I conclude that a common law act ion for b reach of contract of em ployment by w rongful dismi ssa l is not something that fits the desc ri pt ion of an appeal or review under another act or law w i th in in the meaning ot sec tion 11.37(3) [ now s. 174(3)]. There is therefore, in my view, no b as is for sett ing aside or quas hing the concl usion reached by the lndustria_ l Commis_sioner below th at the matter may proceed in the Ind us t ria l Co mm 1ss1on. Therefore the applications w ill be d is missed.". Da ted this twenty-fourth d ay of Aug ust, 1993. By the Court, [ L. S. ) M ). CALLE N, Industr ia l Reg istrar. Appearances:- M r J. Murdoch (instruc te d by Barker Gosling, So licitors) on behalf of David Jo n es (Au st) Pty. Ltd. Mr Ab aza for Ba rbara Ann Mason. Operati ve Da te: N/A Report on Judgment - David Jones (Aust) Pty. Ltd. and B.A. Mason. Released: 24 Sep tem ber 1993 ## ##### ### ##### #### ######## ### # # ### ###### ### #### # # # # -- 1 of 1 --