WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

INDUSTRIAL RELATIONS ACT, 1979

Michael C. Johnston

- and -

Wesfarmers Ltd

(No. 2828 of 1989)

COMMISSIONER G.L. FIELDING 23 April 1990

REASONS FOR DECISION

THE COMMISSIONER:  The Applicant was employed by the Respondent from 1968 until 14 July 1986.  In that time he was employed in various senior or managerial positions.  At the time his employment ended he was employed as an export sales executive on a salary of $30,700 per annum.  His employment ended when it was terminated by the Respondent upon payment of one month's salary in lieu of notice, together with an ex gratia payment of three months' salary and "dismissal" benefits from the Respondent's staff pension fund.

The Applicant regarded his dismissal as being unfair and sought legal advice.  He claims to have been advised by his solicitors that his employment was covered by a Federal award, apparently the Clerical and Salaried Staffs (Wool Industry) Award 1977, and as such advised that his only recourse against the Respondent was to institute proceedings in the Supreme Court of this State.  Those proceedings were instituted and are still on foot.

Late in December 1989 "by chance" the Applicant says that he learnt from the Commonwealth Department of Industrial Relations that his employment was not covered by the Clerical and Salaried Staffs (Wool Industry) Award and that he might have recourse against the Respondent in the State Industrial Relations Commission under the provisions of section 29(b) of the Industrial Relations Act.

On 22 December last he instituted these proceedings pursuant to section 29 claiming to have been unfairly dismissed from the Respondent's employ.  The Respondent filed an Answer alleging that the Commission was without jurisdiction to entertain the application claiming that the Applicant's employment was governed by the terms of the Clerical and Salaried Staffs (Wool Industry) Award 1977.  Its argument, based on the decision of the Industrial Appeal Court in Metropolitan (Perth) Passenger Transport Trust v. Gersdorf (1981) 61 WAIG 611, was that the remedy afforded under section 29(b)(i) was in conflict with the Award.  In the alternative, the Respondent alleged that the dismissal was not unfair, but justifiable by reason of the Applicant's alleged poor work performance.

On 31 January last the Applicant made application for "Further and Better Discovery of Documents" relating to the substantive application.  On 8 February last that interlocutory application was brought on for hearing.  The Respondent again, inter alia, raised as an objection to the interlocutory proceedings the question of whether the Commission's jurisdiction was not overtaken by the Federal Award.  Without determining that question, I felt bound to indicate to the Applicant that he would face a difficult, if not impossible, task to persuade the Commission that, even if his dismissal was unfair, he should be reinstated in his employment more than three and a half years after his dismissal and that, furthermore, an award of compensation was not an alternative.

Thereafter, on 12 February last, the Applicant filed a notice purporting to abandon his claim with respect to unfair dismissal and claiming instead to have been denied a benefit, not being a benefit under an award or order of the Commission, under his contract of service with the Respondent.  The benefit to which he claimed to be entitled was "a minimum of two weeks' pay for every year worked with" the Respondent.  The amount claimed by way of that benefit was $16,451.88 "plus interest from 14/7/86".  In the notice purporting to amend the application, the Applicant claimed to be entitled to such a benefit because "as an Employee of longstanding he had accrued rights to his job for which if compulsoraly terminated he should have received adequate monetary compensation" (sic).  Upon further explanation the Applicant submitted that it was "common practice" under awards and for the Commission to fix compensation for dismissed employees of the kind he now sought based on length of service.  As an example, he referred to the decision of the Commission in Anglican Homes (Incorporated) v. The Federated Miscellaneous Workers' Union of Australia, Hospital, Service & Miscellaneous W.A. Branch (1989) 69 WAIG 2523 and in The Federated Clerks' Union of Australia, Industrial Union of Workers, W.A. Branch and Others v. Tip Top Bakeries (1989) 69 WAIG 3132.  He referred also to the decision of the Victorian Industrial Relations Commission in Bunnett v. Henderson's Federal Spring Works Pty Ltd (1989) 31 AILR 356.

When the application came on for hearing the Respondent's agent, at the outset, objected to the matter proceeding further claiming it to be an abuse of process.  He suggested that it was nothing more than an attempt by the Applicant to salvage something out of the wreckage of his misguided unfair dismissal application following comments made during the course of the interlocutory proceedings.  Moreover, the Respondent objected to the Commission dealing with the matter, having regard to the delay which had occurred since the Applicant's dismissal.

To his credit the Applicant acknowledged that there had been a delay but submitted that it was due to fact that he had been given wrong legal advice.  As soon as he had learnt that he could bring a claim before the Commission he did so without any further delay.  Though his claim against the Respondent is still on foot in the Supreme Court, he says it is for a declaration of entitlement to monies under the Respondent's superannuation scheme, based on him being retrenched rather than dismissed and is wholly different in substance to the proceedings now before the Commission.

Section 27 of the Industrial Relations Act relevantly provides -

 "(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it -

  (a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied -

   (i) that the matter or part thereof is trivial;

   (ii) that further proceedings are not necessary or desirable in the public interest;

   (iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

   (iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;"

The powers given to the Commission by this subsection are wide and indicative of the special nature of the Commission's jurisdiction.  It is not a court of law in the traditional sense (see:  Amalgamated Metal Workers and Shipwrights Union of Western Australia v. Griffin Coal Mining Co. Ltd and Western Collieries Ltd (1980) 60 WAIG 2137, 2139; see also:  Lang v. Telecom Australia (1989) 70 WAIG 186).  Rather, it is a specialist statutory tribunal whose prime task is to settle and prevent industrial disputes.  To that end, the Commission is given powers of the kind mentioned in section 27(1)(a) which frequently call for the exercise of a discretionary assessment not normally associated with the traditional courts of law.

Whilst clearly it is not the case that the proceedings now before the Commission could be categorised as trivial or that the Applicant does not have a sufficient interest in the matter raised by the proceedings, the circumstances are such as to give rise to considerations under subparagraphs (ii) and (iv) of section 27(1)(a).

Although the Act does not impose time limits, within which a dismissed employee might bring a claim with respect to unfair dismissal, as is the case in comparative legislation in some other States, for example, in Victoria and in South Australia it is obviously essential that such a claim be instituted at or about the time of the dismissal.  It is patently obvious that the interests of industrial harmony dictate that the Commission have the benefit of dealing with disputes of this kind whilst the incidents are fresh in the minds of those likely to be called before the Commission.  After more than three and a half years it would be surprising if the recollections of those directly involved with the matter were not somewhat blurred.

Moreover, the only practical remedy available for such a claim is reinstatement and that cannot reasonably be effected where a long period of time has elapsed following the dismissal.  The Commission has to consider not only the position of the dismissed employee, but that of the employer.  It would obviously be unreasonable to expect that an employer make the necessary adjustments to reinstate an unfairly dismissed employee years or even months after the dismissal has taken place.  In this respect I adhere to the view I expressed in Fosbury v. Mt Newman Mining Co. Pty Ltd (1988) 68 WAIG 1882 at 1884, that is, that claims for unfair dismissal should be brought with expedition.  Where there has been delay the Commission is entitled to exercise its discretion against the Applicant and either refuse reinstatement or, in more extreme cases, to refuse to proceed with the matter at all.

The Respondent rightly accepts that ignorance of the law is not really an excuse.  In his case he made a deliberate decision, albeit based on legal advice which he regards as erroneous, that he should not institute proceedings in the Commission against the Applicant arising out of his dismissal.  Having made that deliberate decision he ought not now complain if the Commission exercises the discretion given it by section 27(1)(a) not to hear an application instituted more than three years later.  If the dismissal was indeed unfair it is simply asking too much to expect that at this late stage he be reinstated and, indeed, the Applicant now accepts that.  There seems to me to be little point in proceeding with what at best would be an academic exercise.  The Commission's charter is to deal with practical solutions and is not such as to invite academic solutions.  Furthermore, it is hardly consistent with the public interest that it should be engaged in such an exercise when there are numerous applications by others waiting to be dealt with relating to allegations of unfair dismissal and which have been made expeditiously and in a proper manner.

I do not consider the position to be improved by the Applicant's proposal to abandon his claim for unfair dismissal and convert it to one for denied contractual benefits.  Whilst the need to institute proceedings expeditiously is perhaps not as compelling for a claim of denied contractual benefits as it is for a claim for reinstatement, nonetheless the nature of the Commission's jurisdiction is such that disputes of that kind should be dealt with without delay.  In this instance the claim cannot be said to have been made without delay.  Indeed, by comparison with similar claims dealt with in the Commission, it could be described as an ancient claim.

The amendment proposed by the Applicant is a somewhat radical amendment.  Whilst I consider that the nature of the Commission's jurisdiction is such that it should ordinarily be reluctant to refuse an amendment of this kind, in this case the amendment is made not only more than three and a half years after the benefit was alleged to have been denied, but after the Respondent was summoned to answer a claim concerned with unfair dismissal and principally directed to reinstatement.  There seems to me to be an element of injustice to the Respondent for it to have to face yet another claim at this stage after such a lapse of time.  I cannot help but conclude that the amendment was made as a means of overcoming the pitfalls surrounding the original application as revealed in interlocutory proceedings designed to assist the prosecution of the original claim.  If, as the Applicant now claims, the benefit was indeed a benefit arising not under an award or order but one which he is entitled under his contract of employment, the jurisdictional problems associated with the Federal Award would have been irrelevant from the outset.  The Respondent cannot be blamed for the decisions made by the Applicant which have led to the predicament in which he now finds himself.

In any event, even if I were to allow the amendment I very much doubt that it raises a prima facie case for the Respondent to answer.  The Applicant admits that the claim is based on what he perceives to be "common practice" in cases of dismissals of longstanding employees.  I doubt that there is such a practice in this State.  However, what is in issue in a claim of the kind now proposed by the Applicant is an analysis of the terms of the Applicant's contract as it presently is and not what some might think those terms should be.  Because others receive termination payments based upon length of service of the kind now sought, it does not follow that it was a term of the Applicant's contract.  It is a huge jump in logic to suggest that a term of the kind suggested by the Applicant should be implied as having been agreed between the parties simply because the Commission sometimes, or perhaps often, fixes redundancy payments on those terms.  The benefits enjoyed by others might be a good reason for the Commission exercising its arbitral jurisdiction in an application brought under section 29(a) to make an award or order incorporating such an entitlement into the Applicant's conditions of employment but that is not something that can be done in proceedings of this nature.

The precedents on which the Applicant suggested he intended to rely are not cases involving claims of unfair dismissal, but rather are examples of variations to conditions of employment imposed by the Commission before dismissal and not after it as the Applicant now proposes.  The Commission in those instances was not concerned to interpret an existing contract and thereby imply terms into it, but was concerned whether it should in effect vary the contract of employment by legislating for redundancies.  The limitations on that process and indeed the distinction between the process and claims arising out of unfair dismissals was explained by the Full Bench in Tip Top Bakeries (Canningvale) v. The Federated Clerks' Union of Australia, Industrial Union of Workers, W.A. Branch and Others (1989) 70 WAIG 289, a decision which upheld an appeal against the decision concerning Tip Top Bakeries to which the Applicant referred.

The Applicant could not derive any assistance from Bunnett v. Henderson's Federal Spring Works Pty Ltd (supra).  It was not concerned with existing contractual entitlements but with compensation for an unfair dismissal.  In that case the Industrial Relations Commission in Victoria had to consider the quantum of compensation for a manager unfairly dismissed and in so doing considered that he should be compensated for his years of service having regard to redundancy provisions.  However, in contra distinction to the position in this State, the Victorian Industrial Relations Commission has been held to have as an incident of its jurisdiction to deal with unfair dismissal, authority to award compensation.  That is expressly not the case in this State as is clear from the decision of the Industrial Appeal Court in Robe River Iron Associates v. The Association of Draughting, Supervisory and Technical Employees, Western Australian Branch (1987) 68 WAIG 11.

For the foregoing reasons, without deciding the question of jurisdiction or lack of it raised by the Respondent's Answer, I am minded to exercise the discretion given the Commission under section 27(1)(a) to dismiss these proceedings and of course the accompanying interlocutory proceedings which currently stand adjourned sine die.

Appearances: The Applicant appeared in person

Mr S.J. Kenner appeared for the Respondent