Falla v Runaway Bay Accountancy and Income Tax Pty Ltd [1997] QIRC 15 (1997) 154 QGIG 511

7 February, 1997 \I QUEENSLAND GOVERNMENT INDlJSTRIAL GAZETTE 511 ########################################################## QUEENSLAND iNDUSTRIAL RELATIONS COMMISSJON Industrial Rc!atim1J Ac1 i990 s. 29.'i application for rein,tatemcnt Christine Falla AND Runaway Bay Accountancy and Income Tax Pty Ltd (No Rf 199 of 1996; COMMISSIONEK HLOOMFIEL!J 14 January l 997 Reinstatement -· Dismissal ·1 crmination of Employment - T raincc Accountant Applicant seeking compensation, not reinstatement Preliminary Point Commi>-sion requested to di,miss application as applicant ha, no remedy Earning,, iu (1 monih\ following termination 22J4(d.DOC -- 1 of 2 -- 512 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 February, 1997 greater than any possible remedy Public Interest Commission determined No order made as to applicant has no remedy Application dismis,:ed costs. REPORT ON DECISION Thi~ was an application by Christine Falla for relief regarding her termination from Runaway Bay Accountancy and Income Tax Pty Ltd. The matter was heard on 13 and I 4 January 1997. On l 4 January 1997 , at the completion of the evidence for the Applicant, Mr O'Brien subrnined that the Applicant was not seeking reinstatement but claimed compensation mstead. An argument was then immediately advanced by Mr Her~rt. for the respondent, that the matter should not proceed_ for1her and that 11 should ~ dismissed on the basis that the Applicant had no remedy available to her under ~- 297 of the /ndusuial Relations Acr 199() Following submissions from Mr O'Brien on the point, Commissioner Bloomfield gave the following decision from the Bench:- "Although I've made some comments about my preliminary views on :i particular witness and some of the maten:il tendered :is evnlence, I do not intend to go into the merit;; of the application. The ments of the application are not what I've been asked to look at at this time. !he decision I am about to make does not relate to the overall ments ot the cas;e per se. I've been asked to determine a preliminary point (essentially in the public intere~t) to avoid the time, effort and expense of the continuation of the trial in circumstances where it is submitLed that al the end ot the day the applicant cannot receive the remedy from the Commission which she now seeks viz compensation, even if she establishes her cas;e Mr Herbert has put to me that on the applicant's own evidence she has earned more in the pericxl following her dismissal than ,he would have if she had not been terminated. On that basis he's submitted that even if the applicant succeeded in her case she could not receive an award of compensation In support of this contention he referred me to the case of Axe/by, tJdon and Meadows v AMACSU, especially the appeal decision before His Honour The President wherein the principle for which he asserts wa,; upheld. Mr O'Brien urged me not to adopt that cours;e of action, indicating that there were grave dangers in cutting shon a trial without hearing all of the material which needed to be p1esented. Part of Mr O'Brien's submis,ion was that, irrespective of remedy. applicants \\-ere entitled to have tl-eir day in Court_ in order to have matters determined for which they contended, notw1thstandmg that a remedy might not attach to any decision which might emanate from the Commission. It was also put by Mr O'Brien that remedy 1s a discretionary outcome in any event and that the Commission was not constrained, as; Mr l lerbcrt had suggested. During the course of the luncheon recess. and subsequently, I took the opportunity to research the issue raised by Mr Herbert and to consider the case to which he referred, both at the first instance before Commissioner Bougoure and later before The President. In the latter case, His Honour ~ssentially confinned the learned CommissiPner's decision and the reasoning which underpinned it by making only a small monetary adjustment to take acco1mt of matters not raised in evidence before the Commis~ioner. My research, limited as it wa~. also disclosed other cases on this point. in particular one in which Commissioner Bougoure considered the same point raised by Mr Herbert. That case \\-as Rowbotham 1· Besser Pioneer Pty Ltd which is reported at 153 QGJG 1%4 wherein, at page 1366, the learned Commissioner states:-- 'When one considers the various payments received by the applicant, it is obvious that during the period 7 May to 20 August 1996, the applicant received income greater than if he had continued in his employment. The purpose of compensation is to compensate the applicant for his loss and not to award a bonus (Norton Too! Co. Lid v Tew.ion ( 1973) I All E.R. 183). This is confirmed by the decision of Madgwick J. in Bee hara r. He air and Co., 19 April I 996 1996 AILR 3-312, which was referred to by Mr Amey. The applicant's current employment is remunerated at a rate some 29 cents per hour less than his prior employment with Besser Pioneer, and in my view should be classed as e.quivalenr employment. Some indirect mention was made of over_lime mthe Besser Pioneer employment, but in the ahse11ce of spec1hc evidence on the issue and proof of some regularity in the payments, l am not in a position ro take that factor into consideration. In _any event, I have alreadv indicated that 4 months from the date of disnnssal wa~ an appropri~te period for the applicant to obtain new employment and upon which to ba-;e compensation. Thus the applicant has failed to prove that he has suffered a loss for which he shDuld be compensated. This is a case similar to that of Mr Meadows in the matter of Axe/by. Eid on and Meado»s L A..\-fACS 151 QGIG 826. Therefore, I decline to order any relief in favour of the applicant.·. The reference to the case of Mr Meadows appears at I 5 I QGIG 826 at page 833 and I essentially quote Commissioner Bougoure·s decision in that matter:- 'In the case of Mr Meadows, he had earnings of $41,264.60 per annum at tennination and received a total payout of $9,955 30 Such payment included 3 weeks notice, an ex xrarw long service leave payment of 5 .161 weeks and a severance payment of 6 wce~s. Mr Meadows also gave evidence that he received a Social Security payment of$600.00 per fortnight for 5 or 6 weeks. The evidence i, that Mr Meadows commenced employment with the Australian Services Union. Airlines Branch, on 18 September 1995 at a salary $ I ,000 per annum less than his prior salary, with no motor vehicle provided. There is a lack of satisfactory evidence in relation to other elements of his salary package with his former employer, hence I am not in a position to consider those items. Mr Meadows was unemployed for approximately 18 weeks, however, upon tennination he was paid severance pay, notice and ex gratia long service leave totalling 14.161 weeks. Other payments were also made in tem1s of the Agreement aforementioned, which meant that he received a generous payout. For reasons outlined in relation to Mr Eldon, I consider the 14.161 wcch aforementioned must be taken into consideration in assessing compcn-.ation. In addition, Mr Meadows received Social Security benefits as mentioned. The object of a compensatory award is "to compensate, and compensate fully, but not to award a bonus" {per Sir John Donaldson in Norton Tool Co. Lid 1·. fewson (1973) l All. E.R. 183). In mv view the payments made by the employer and the Department ot· Social Security reasonably compensate Mr Meadows up until he commenced his new employment. The new employment is at a slightly lesser rate and it seems the package may invDlve less benefits. The evidence is not ade.quate to enable me to make any sensible assessment in relation to benefits. In relation to the slight] y lesser salary, I consider that the difference is such that one may reasonably find that Mr Meadows has obtained employment which he has accepted as equivalent to his fon:1er position. Under all relevant circumstance, I have not been sat1shed that an order for compensation should be made in Mr Meadow's case Although I don't refer to it. the reasoning of Commissioner Bougoure in those cases is that the Commission needs to determme a reasonable pericxl within which it is likely that a chsmissed emplo_yee would find alternative employment in order to assess possible compensation because of the loss of income between the time_ of wrongful termination and the likely, or expected, gaining of alternative employment. The logic of that approach is compelling and I adopt it in this case pa11icularly since I would have been required to speculate about any loss which the applicant may suffer in the future if she does not contmue rn temporary employment. I would not have been prepared to speculate rhat a \o~s would have occurred in any event given the his;tory of her earnings to date. In the instant case the applicant is obviously a highly a11iculate and intelligent person, and I underline the word high)). She has a degree and two and a-half to three years of work experience and m my view a reasonable period of time for her to obtain reasonable alternative employment would have been between four and six months. It certainly would not have exceeded six months. In the pericxl which elapsed since her te11nination she obtained other temporary employment. She has not obtained pem1anent employment but with re~pect to her, making only, to quote her evidence, "more than 7 February, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 513 IO applications" in the six months since her termination docs not persuade me of a genuine effort at mitigation nor an attempt to obtain reasonable alternative employment. Con~equently, even if I detennined that I would set a reasonable pericxl of time <!ming which Ms Falla should have secured rea:-.onable alternative employment as ~ix months (instead of four or five months), the reality of her evidence is that she has received more in the period since she Iefi the employment than she would have earned had she remained employed with Mr Mattner or the service company, Runaway Bay Accountancy and Income Tax Pty Ltd. In such circumstances it is clear that she has suffered no loss for which she can be compensated. Notwithstanding that factual position, Mr O'Brien has put to me that I have a general discretion in the matter. In my view that is not so. The discretion is clearly limited by the tem1s of the legislation. Section 297 ( l) indicates that the Commission docs have a discretion, but that discretion is that it !!!ill:'. "make the orders it considers appropriate to put the employee in the same position (as nearly as can be done) as if the employ~ had not been dismissed''. Whilst the section then goes on to set a monetary limit in (4), in my view the primary objective of the <;ection is to put the employee in the same position as if the employee wa" not dismissed. It is dear, as I said a moment ago, on the factual material presented. that there ha" been no loss suffered by the applicant. Mr O'Brien has also submitted that one of the reasons why applicants come to the Commission, through reinstatement proceedings, is to have their day in Court. I express a view that while that might be the case for applicants, that is not why I am here. I am here to decide matters and to determine, fir\tly, if there has been a breach of the legislation and, secondly, if there has, what remedy might be available to a successful applicant. The remedy which is available is governed by the legislation. It is either reinstatement or compen,ation. Reinstatement is not sought. !fa loss has been suffered it is remediable. Here there is no loss and therefore no remedy is available to the applicant. In such circumstance~ it would be contrary to the public interest fo1 the parties to be su~jected to further costs in this matter by a continuation of the proceedings. I say that because even if the applicant was able to successfully estabhsh her case she would not be entitled to the remedy for which she contends. Accordingly, I take the highly unusual step of acting pursuant to section 90( I ){b) (and obvious! y Part 12, Division 5) to dismiss the application. In so doing I detem1ine that it is in the public interest that further proceedings are not necessary or desirable. For those reasons I dismiss the application.". After the Commission handed down the above decision Mr Herbert made an application for cost'> to be awarded to the respondent. Following submissions by Mr O'Brien, who argued against costs being awarded, the Commission handed down the following further dccision:- "Mr Herbert, I have heard what you say about the costs of the trial in total and it would seem that it would be unwise of me to make any order in respect of the costs of the whole of the trial. As you admitted during your own submissions, it has only been a progressive situation that has developed where, in recent days, it would have been apparent if the applicant was of a mind to make inquiries that she would have discovered that she wa.~ in a position where she had no remedy. There is some merit as to the awarding of costs for the trial itself, if not for the two days, then certainly for today. because at the start of today the applicant, afier having produced Exhihit 16 overnight, could have been in a position to seek advice on the matter. However, given that the issue which you raised really only arn~ during the course of the trial, and that that is what trials arc about I have, with the greatest degree of reluctance, decided not to award costs even for today. The point for which you successful argued, Mr Herbert, only arose when Mr O'Brien made it plain that there was "too much water under the bridge -------" for the applicant to return. Your submission arose directly from, and immediately after, that point was made. The argument was not available to you before that time. As it turned out, it was successful. Accordingly, m making the decision not to award costs, which I say is with reluctance, I note that at the end of the day your client has saved the costs of further trial, and whilst that might be no great blessing, I am not persuaded in the circumstances that the case is one which is sufficiently outside the principles, or within the principles, in Goldman , Dara General that I should award costs.". Dated this fourteenth day or January, 1997. By the Commission, [L.S.l E. EWALD. Industrial Registrar. Appearances:- Mr P. O'Brien, of O'Brien and Associates, with him Mr M. O'Dea, of Gall Standfield and Smith, for the Applicant Ms C. Falla. Mr A. Herbert, of Dixon Chambers Pty Ltd, with Mr 0. Mattner for the Respondent Runway Bay Accountancy and Income Tax Pty Ltd. Operative Date: N/ A Decision Rein:--1atement Released: 28 January I 997 ########################################################## -- 2 of 2 --