WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH

APPLICANT

 -v-

 BURSWOOD RESORT (MANAGEMENT) LTD

RESPONDENT

CORAM COMMISSIONER A R BEECH

DELIVERED MONDAY, 30 APRIL 2001

FILE NO C 89 OF 2001

CITATION NO. 2001 WAIRC 02655

_______________________________________________________________________________

Result Application for Interim Order

Representation

Applicant Mr D. Kelly

Respondent Mr G. Blyth (as agent)

_______________________________________________________________________________

Reasons for Decision – Application for Interim Order

1         The application before the Commission is brought by the ALHMWU for a conference pursuant to section 44 of the Industrial Relations Act 1979.  The union claims that the dismissal of Mr Derek Mitchell on 23 March 2001 by the respondent was unfair, harsh and oppressive within the meaning of the Act.

2         The Commission convened a conference pursuant to section 44 of the Act, however the Commission was not able to assist the parties to reach any agreement in the matter.  The Commission then indicated that the matter in dispute would be referred for hearing and determination pursuant to section 44(9) of the Act.  The union then requested the Commission to issue an Interim Order reinstating Mr Mitchell in his employment pending the hearing and determination of the matter referred for hearing and determination.  Burswood Resort (Management) Ltd (Burswood) objected to the issuance of the Order sought.

3         In support of its request for an Interim Order to issue, the union states that although Mr Mitchell was paid five weeks’ wages in lieu of notice, five weeks from his dismissal has effectively lapsed and he will now encounter severe financial difficulty.  Mr Mitchell is apparently 59 years of age and has not found alternative employment in the meantime.  The union maintains that it has established a prima-facie case that Burswood’s dismissal of Mr Mitchell was unlawful because it is contrary to the Order issued by Wood C in Application CR350 of 2000.  The union states that industrial relations between it and Burswood have now hit a “record low” for its members, that the union has not sought or encouraged any action in support of Mr Mitchell and that its members have stayed at work.  The union submits an Order is necessary to prevent the deterioration of industrial relations between the parties pending the hearing and determination.  The union also points to section 44(6)(bb) which permit the Commission to make an Order of this nature in any event.  The union states the balance of convenience is in its favour because of the prima-facie breach by the respondent of the Order of Wood C and the relative financial positions of Mr Mitchell on the one hand and of the respondent on the other. 

4         The respondent questions the jurisdiction of the Commission to issue such an Order.  It states that on a claim of unfair dismissal, such as this matter before the Commission currently, the Orders which are able to be issued by the Commission are restricted to the Orders set out in s.23A of the Act.  Under s.23A of the Act an Order for reinstatement is only to be made upon a finding by the Commission that a dismissal was unfair.  S.23A of the Act does not permit an Order for reinstatement on an interim basis and s.23(3)(h) restricts the Orders which may be made to orders permitted by s.23A. 

5         Burswood also submits there is nothing before the Commission which could permit it to reach the opinion that industrial relations between the parties “in respect of the matter in question” would deteriorate.  The general industrial relationship between the parties to this matter is not the issue.  Mr Blyth points particularly to the lapse in time between the date of dismissal and the lodging of this application on 11 April 2001, and even to the date of the conference to say that there is no “evidence” of a deterioration which needs to be prevented by the issuance of an Order.  The Commission should issue Interim Orders only with caution and if there is doubt, an Order should not issue.  The onus is on the applicant and in this matter, particularly as the hearing and determination of the matter is listed to occur within approximately three weeks’ time.  There is no reason to believe that the final Order sought by the union would not be able to remedy any unfairness arising from the dismissal.

6         Burswood also queries the text of the draft of the Order submitted by the union.  It states that the circumstances surrounding the dismissal indicate that there is no substantive position to which Mr Mitchell is able to be reinstated because he is unfit to perform the totality of the duties of an Environmental Services Attendant with the respondent.  The Commission does not have the power to create a job for Mr Mitchell and the union itself does not know the duties proposed by its own draft Order. 

7         Burswood also refutes the suggestion that it is in breach of Orders 1 and 3 issued by Wood C.  It says that Mr Mitchell was dismissed for "continued and willful refusal to obey a lawful and reasonable instruction".

 Conclusion

8         Time necessitates only the briefest explanation of the Commission’s conclusions.   I make the assumption, without necessarily deciding, that the application lodged in the Commission by the union is properly characterised simply as "a claim of harsh, oppressive or unfair dismissal", and not as an application for a conference about such a claim.  I have reached the conclusion that the Commission has the jurisdiction to issue an Order as sought.  I do so because to interpret section 23(3)(h) of the Act as urged by Burswood would mean that the Commission would, on a claim of unfair dismissal being made to it, be restricted only to: an Order of payment to the claimant of an amount to which the claimant is entitled (s.23A(1)(a)), order compensation for loss or injury caused by the dismissal (s.23A(1)(ba))and any ancillary or incidental Order that the Commission thinks necessary for giving effect to any Order made under the subsection (s.23A(1)(c)). 

9         One consequence of such an interpretation would be that the powers under s.27(1), for example, would not be available to it.  Thus, the Commission, on a claim of harsh, oppressive or unfair dismissal, would not be able to dismiss the matter or any part thereof, or refrain from further hearing or determining the matter if it is satisfied that any of the circumstances in section 27(1)(a) of the Act are present.  It would not be able by Order to adjourn proceedings under section 27(1)(f) of the Act.  It would not be able by Order to make the Orders that may be just with respect to interlocutory proceedings under section 27(1)(o) including the issues to be submitted to the Commission, the persons to be served with notice of proceedings, delivery of particulars of the claims of all parties, admissions, discovery, inspection or production of documents, inspection or production of property, examination of witnesses and the place and mode of hearing. 

10      There is current authority for the proposition that s.27(1) is a most important provision for the proper functioning of the Commission and that in the absence of a very clear contrary legislative intention, there would appear to be good reason against adopting an interpretation which limits the powers of the Commission which it provides: Food Preservers Union v AFMEPKIU [2001] WASCA 136, unreported, 27/4/01 paragraph 22.  The observation of the Industrial Appeal Court should not be taken out of context, however, I find it quite relevant to this matter.  Having regard to the importance to a fair hearing of the process of discovery, inspection or production of documents, for example, it would be odd if the legislature intended that a person claiming to have been unfairly dismissed could only have discovery, inspection or production of documents held by the other party if that party chooses to agree, and have no recourse to the Commission in the absence of agreement.  After all, the power to make an Order for discovery, inspection or production of documents is available when any other industrial matter, including a claim under s 29(1)(b)(ii) by a person that he/she has not been allowed by his/her employer a benefit, not being a benefit under an award or order, to which he is entitled under the contract of service, is referred to the Commission. 

11      If the claim  of harsh, oppressive or unfair dismissal is referred to the Commission under s.29(1)(b)(i) of the Act, the interpretation urged by Burswood would reduce the powers of the Commission available under s.32. of the Act.  Thus, although by s.32(1) of the Act the Commission would be obliged to "endeavour to resolve the matter by conciliation", it would not have the power which that section otherwise provides to make such orders as will in the opinion of the Commission enable conciliation or arbitration to resolve the matter or encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter. 

12      In my view, a clear legislative intent to that end would be necessary to permit such a conclusion to be safely reached.

13      For those reasons I find that s.23(3)(h) is intended to the codify the powers of the Commission to issue final orders upon a finding that a dismissal is harsh, oppressive or unfair.  I find that in this matter, s.23(3)(h) does not prevent the Commission exercising the powers that are contained within s.44 of the Act.

14      I pause to note that Mr Kelly sought leave to amend the claim before the Commission to include the claim that the dismissal of Mr Mitchell also was unlawful.  By this means, Mr Kelly argues that the restriction in s.23(3)(h) does not apply.  Over the objection of Mr Blyth, I grant leave to amend the claim, notwithstanding that it does not affect the conclusion which I have reached.  The union's claim is, ultimately, a question for it alone.  I find that the amendment sought is within jurisdiction.  An industrial matter is defined by the Act as being any matter affecting or relating to the work, privileges, rights or duties of employers or employees in any industry, and includes any matter relating to the dismissal of any person.  In my view, whether the dismissal of a person is unlawful is “any matter relating to” that dismissal.  I therefore conclude that whether a dismissal is unlawful is of itself an industrial matter and it is capable of being referred to the Commission by this union on behalf of Mr Mitchell. 

15      As to whether an Order should issue, I have found the following issues of importance.  The Commission has been informed that the dismissal of Mr Mitchell is one of a number of issues which are currently in dispute between the union and Burswood.  Some of the issues arise directly from matters concerning Mr Kelly, including a prosecution before an Industrial Magistrate and a matter in the District Court.  Both Mr Kelly and Mr Blyth used terms to describe the industrial relations between the parties which allow me to reach the conclusion that their industrial relations are indeed at a very low ebb.  That is not to say that their industrial relations are not able to further deteriorate.  Deterioration is a relative concept. 

16      I can appreciate for the reasons referred to by Mr Kelly that the union’s members at Burswood are unhappy at the dismissal of Mr Mitchell.  Relations between the union and Burswood will cover a multitude of other areas and the attitude of the union towards Burswood may well be conditioned by the attitude of its members, or some of them, towards their employer.  In my view, industrial relations may deteriorate notwithstanding that there may not be industrial action apparent.  I do not attach great significance either way to the time between the date of the dismissal and the lodging of this application and the convening of the conference. In my view, the circumstances that Mr Kelly has put to the union indicate that the Commission should take steps to prevent a further deterioration. 

17      Mr Mitchell has, on the information before me, an unblemished work record and Burswood did not submit otherwise.  His age is a factor which might mean that it will be difficult for him to find casual work for the period until the determination of the union's claim.  The union seeks the reinstatement of Mr Mitchell in the substantive hearing and if one is made following the arbitration of this matter, it may not be able to redress all of Mr Mitchell's financial loss arising from his reinstatement.  The programme adopted for the arbitration of the union’s claim is of relatively short duration and I do not consider that the form of Order sought will impose a financial hardship on the respondent.  Conversely, the absence of such an Order will, as I find, impose some hardship on Mr Mitchell.  The balance of convenience is, in my view in favour of Mr Mitchell. 

18      Finally, and again over the submissions of Mr Blyth, it appears to me to be quite arguable that Mr Mitchell’s dismissal contravenes at least Order 3 or the Order issued by Wood C.  That is not a matter for me to determine here, and is not a matter about which I express a concluded opinion.  Nevertheless, it is an important matter which in my view this assists in concluding that the balance of convenience is in favour of Mr Mitchell. 

19      As to the form of an Order to issue, while I appreciate the points raised regarding uncertainty in the union’s draft Order, it appears to me that an Order should issue which reinstates the contract of employment between Mr Mitchell and Burswood immediately before its termination on 23 April 2001.  The duties which are then to be performed by Mr Mitchell will, and under the umbrella of the Order of Wood C., be a matter between Mr Kelly and his union on the one part and Burswood on the other.  If an agreement is not possible, the duties to be performed are to be those referred to by Dr Robinson as Mr Mitchell’s “present form of work” in his letter to Burswood of March 8 2001 which was presented to the Commission and is attached to these Reasons.

20      I regard as entirely valid the observation by Mr Kelly that Burswood has accommodated since 1994 Mr Mitchell’s inability to perform the totality of the duties of an Environmental Services Attendant.  I do not regard it as an impossible task for useful work to be identified on an interim basis pending the hearing and determination of the union’s claim and for that previous accommodation to be extended to him for this limited period.  If Mr Mitchell is ultimately successful in being reinstated following the determination of the union’s substantive claim, the work he is to perform may well be a matter for submission at that time.

21      The Order to issue will also provide that Burswood not dismiss Mr Mitchell from his employment during the currency of this Order.  This step is not taken lightly however this blanket prohibition is intended to avoid the present situation which has arisen where the issue of whether or not Burswood has breached Order 3 of Wood C appears to turn upon the characterisation of the reason for the dismissal.  The Order to now issue is of limited duration and if within that time circumstances arise which cause Burswood to consider that  Mr Mitchell should be dismissed it will have the right to seek to vary the terms of that provision in the Order to enable it to do so. 

22      A minute of proposed order now issues.