WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES JENNIFER CARTER

CLAIMANT

-v-

Ngunytju Tjitji Pirni Aboriginal Corporation

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Thursday, 14 September 2006, Wednesday, 13 September 2006, Wednesday, 16 August 2006, Thursday, 17 August 2006, Thursday, 26 October 2006

DELIVERED Thursday, 26 October 2006

CLAIM NO. M 29 OF 2006

CITATION NO. 2006 WAIRC 05682

CatchWords Failure to comply with an order of the Western Australian Industrial Relations Commission to reinstate a worker unfairly dismissed; Revocation of Commission’s order; claim for payment including remuneration lost and damages; claim for the imposition of a penalty.

Cases referred to in decision

Jennifer Carter v Ngunytju Tjitji Pirni Aboriginal Corporation (2005) 85 WAIG 4046

Blackadder v Ramsey Butchering Services Pty Ltd [2000] FCA 603

Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22

Cases cited: Quinn v Jack Chia Australia Pty Ltd [1992] 1 VR 567

Easling v Mahoney Insurance Brokers (2001) 78 SASR 489

Paul Andrew Bennett and Craig Bradley Dix trading as Finesse Painting & Property Maintenance v Higgins (2005) 85 WAIG 3653

Result Claim allowed in part.

Representation 

Claimant Jennifer Carter appeared in person

Respondent Mr M Feutrill (of Counsel) instructed by Messrs. Phillips Fox appeared for the Respondent.

Reasons for Decision

Background

1         Ngunytju Tjitji Pirni Aboriginal Corporation (NTP) is an Aboriginal Association incorporated pursuant to the Aboriginal Councils and Associations Act 1976.  The objectives of the Association are to provide holistic relief from poverty, sickness, suffering, destitution, misfortune and helplessness to all Aboriginals.  The Association’s work however is concentrated on the provision of maternal and infant health care in Kalgoorlie and surrounding areas.  A specific objective of the Association is for Aboriginal people to retain ownership of the maternal and infant health services it provides.  The Respondent operates in accordance with its registered rules (constitution) and is managed by a Governing Committee (committee) established under the constitution.

2         The Claimant, an Aboriginal person, was employed by NTP on a full time basis from

3         9 April 2001 until on or about 27 April 2005 at which time her employment was terminated.  At all material times she held the position of co-ordinator and was responsible to the committee for the co-ordination of the maternal and infant health agency run by the Association.  It is the case that leading up to and subsequent to her termination the Claimant was in conflict with NTP’s financial administrator, a non-Aboriginal person by the name of Coral Mencshelyi.  She was concerned that

4         Ms Mencshelyi was permitted to approve funding, pay accounts and sign cheques, all without the specific approval of the committee, notwithstanding a constitutional requirement that all accounts be passed by the committee.  The Claimant was concerned that by virtue of that ownership of NTP by Aboriginal people was being undermined.  She was also concerned that the committee had not been operating in accordance with NTP’s constitution in that decisions were made at informal gatherings of committee members, without regard to the need for necessary requirements such as a quorum.  She alleged that the committee did not prepare agendas for their meetings and further that no minutes of meetings were kept.   The Claimant alleged that decisions were not made by way of motions passed at meetings but rather were made in an informal and ad hoc manner.  In those circumstances the Claimant questioned the validity of decisions made.  She maintained the view that NTP, under the financial control of Ms Mencshelyi, operated corruptly.

5         It will be obvious from what I have described that the relationship between the Claimant and Ms Mencshelyi was extremely poor.  I think it is fair to say that the Claimant did not trust Ms Mencshelyi’s involvement with NTP.  Her concern grew deeper when Ms Mencshelyi took over the administration and coordination of NTP following the Claimant’s termination.

6         The Claimant was of the view that she had been unfairly dismissed from her position and instituted unfair dismissal proceedings in the Western Australian Industrial Relations Commission (WAIRC).  On 24 November 2005, Harrison C found the Claimant’s termination in April 2005 to have been harsh, oppressive and unfair (see Jennifer Carter v Ngunytju Tjitji Pirni Aboriginal Corporation (2005) 85 WAIG 4046).  Subsequently on 28 November 2005 Harrison C made the following formal orders:

Order

HAVING HEARD Ms J Carter on her own behalf and Mr M Jensen of counsel on behalf of the Respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby:

1. DECLARES THAT the Respondent harshly, oppressively and unfairly dismissed Jennifer Carter on 27 April 2005
2. ORDERS that the Respondent shall reinstate Ms Carter in its employment to her former position as if her contract of employment had not been terminated on 27 April 2005, within seven (7) days of the date of this order.
3. ORDERS that the Respondent re-instate Ms Carter’s accrued entitlements and that her service with the Respondent be regarded as continuous for all purposes including long service leave.
4. ORDERS that the Respondent shall pay Ms Carter an amount of money in respect of all of the remuneration lost by her by reason of the termination of her contract of employment as if she had worked continuously in the employment of the Respondent between 27 April 2005 and the date she is reinstated, less any income earned by her in this period and the payment of any entitlements at termination, within 14 days of the date of this order.
5. THAT liberty to apply is reserved to the parties to this order in relation to (4) above.

 [L.S.]      (Sgd.) J L HARRISON,

                   Commissioner.

7         It is fair to say that the order made directing that the Claimant be re-instated was not well received by certain members of NTP’s committee and by its staff.  Most of the staff other than new staff were apprehensive about the Claimant’s return to work.  They did not want her back.  The strength of feeling concerning the Claimant’s return was described in the testimony of NTP’s then Deputy Chairperson, namely Mercy O’Loughlin, when she said; “everyone in the office was shivering and shaking about (the Claimant) coming back”.

8         On 25 November 2005 members of the committee which included Thomasisha Passmore-Skelley, Beverly Sambo, Mercy O’Loughlin, Gloria Obbs, Miriam Lewis and Priscilla Lewis met with the staff to discuss the outcome of the WAIRC proceedings.  The staff members present were Anne Forrest, Michelle Champion, Shelly Coleman, Yasmin Sambo, Deborah Broughton, Jocelyn Forrest, Kylie Hart, Shannon Beazley and Latoya Lewis.  Several of the staff members present, namely Latoya Lewis, Kylie Hart, Jocelyn Forrest and Shannon Beazley, had not been employed by NTP at the time of the Claimant’s dismissal.  The discussions held revealed that the new staff members did not have a problem with the Claimant’s return to work.  However many other staff and committee members were extremely unhappy about the outcome.   Anne Forrest and Yasmin Sambo threatened to resign if the Claimant returned to work.  Deborah Broughton who was NTP’s registered nurse, agreed to the Claimant’s return subject to “a lot of changes being made”.  Some committee members and in particular Beverly Sambo and Priscilla Lewis also expressed concern. 

9         There was discussion during the meeting about the Claimant’s role upon her return to work.  Michelle Champion testified that staff were instructed that if they had any problems they were to refer the same to Deborah Broughton, Anne Forrest or Coral Mencshelyi and not the Claimant.  Those present were told that the Claimant would not be participating in committee meetings or, for that matter, chairing any staff meetings.  Those at the meeting were told also that the Claimant would not be regaining the use of a motor vehicle and parking bay previously supplied and that she would not be supplied with keys to gain entry to the work premises.

10      At that time the committee resolved to delay the Claimant’s return to work so that new policies could be implemented preceding the Claimant’s return.  Ms O’Loughlin testified that the policies were aimed at stopping the Claimant returning to her previous role.  She explained that such was aimed at ensuring that the Claimant returned to her position “as a nobody”.  She said that the organisation was to be restructured so that the Claimant was on the outer with anyone under her.  She was to have no control over the staff.  All staff was to be answerable to Coral Mencshelyi.

11      Consequently on the same day (25 November 2005), Ms Passmore-Skelly and Ms Sambo, on behalf of the Respondent, wrote to the Claimant in the following terms.

We acknowledge that you have been reinstated as Co-ordinator of NTP for 28th November 2005.

We are giving you a lawful instruction to report for work on Monday 12th December 2005 at 8.30 am.  You will be on paid leave from Monday 28th November to Monday 12th December 2005.  You will be paid any back payments that you are entitled to within 14 days of reinstatement.

Yours sincerely

12      On 30 November 2005 the Claimant responded to NTP’s letter of 25 November.  She questioned therein the Respondent’s ability to “override a court order” by requiring the Claimant to take paid leave from 28 November 2005 until 12 December 2005.  Given the circumstances she advised the Respondent that she would take paid leave subject to certain conditions.  On the same day but by separate letter the Claimant wrote to NTP seeking copies of staff policies including grievance procedures, code of conduct procedures, financial policies, committee member policies, duty statements of all staff members including her own.  Furthermore she advised therein that any instructions given to her by the committee were to be in writing.  She foreshadowed that any directive given as a consequence of a decision made by the committee which was not made in accordance with the constitution might be “disputed”.

13      On 1 December 2005 the Claimant who was still aggrieved by her termination prepared a statement addressed to all staff.  In the statement she said;

Re: Unfair Dismissal Case with the WA Industrial Relations Commission

As you may have heard, the WA Industrial Relations Commission made an ‘Order’ that I be re-instated to my position as Co-Ordinator of NTP.

I just want to let you know the truth about my unfair dismissal case, seems that I was never given the opportunity to defend the lies and slander allegations made against me, particularly by Coral Mencshelyi.

Also, I do not wish to involve any staff in any conflict and need to warn every one that if this conflict is not resolved by the Committee, my concerns and grievances can be raised at a Special General Meeting involving Association Members who have the power to overturn any decisions made by the Committee.

Also, funding bodies have the rights to know what’s happening.

Failing to resolve conflict could result in funding being ‘withdrawn’ from NTP, which could see NTP closing down thus putting everyone without a job.

I suggest you take the time to read my brief statement, and you will see for yourself what really happened.

14      On 1 December 2005 the Claimant also wrote to the Chairperson and committee of NTP complaining that Coral Mencshelyi was sending registered mail to her at the wrong address.  She said in her letter “I don’t know why she can be so careless but I believe she is doing it on purpose”.  That exemplifies the Claimant’s strength of feeling towards Ms Mencshelyi.

15      On 1 December 2005 NTP again wrote to the Claimant.  In that letter signed by Thomasisha Passmore-Skelley (Chairperson), Mercy O’Loughlin (Vice-Chairperson) and Gloria Obbs (Treasurer) the Respondent confirmed that the Claimant was not to return to work until 12 December 2005.   She was also advised that back payment of her entitlements would be made on the next pay run.  Despite being unhappy about not being able to return to work immediately the Claimant reluctantly accepted her employer’s instruction.

16      On the afternoon of Thursday 1 December 2005 the Claimant went into NTP’s office for the purpose of photocopying documents required for her salary sacrifice claims.  Those documents were needed by Coral Mencshelyi so as to enable her to process the Claimant’s pay by 12 December 2005.  Upon arrival at the NTP office the Claimant encountered Deborah Broughton and Ann Forrest.  The Claimant informed them that she was there to copy salary sacrifice documents required to process her pay.  The Claimant alleges that Ms Broughton was nasty to her in that encounter. 

17      Ms Broughton told her to hurry up.  The Claimant was told that the office needed to close so as to enable staff to attend NTP’s Aids Awareness Display at a nearby park.  The Claimant accompanied by Ms Adele Bonney then went to the photocopying room and commenced photocopying.  At that time Ann Forrest poked her head in and challenged her about what she was doing.  Ms Broughton later also popped her head into the room and said, “Don’t go taking it out on staff; it’s got nothing to do with them”.  The Claimant was distressed by that because in her view she had not done anything to elicit such a remark.  She felt that those subordinate to her were acting confrontationally towards her and without respect for her or her position.  She was effectively rushed out of the office on the basis that all staff members were required to attend a display at a local park.  When she later went down to the park she found that only one staff member was manning the NTP’s display.  The Claimant surmised that the need to attend the display was used as an excuse to get her out of the office. 

18      Later that afternoon the Claimant re-attended NTP’s office.  Thomasisha Passmore-Skelley, Mercy O’Loughlin, and Gloria Obbs were there meeting with Rosemary Hunt.  At that time she handed Thomasisha a letter.  She told those present that she needed to know why it was that she could not return to work the following week.  Thomasisha informed her that they were in the process of preparing a letter for her in that regard.  Before leaving the Claimant took the opportunity to inform Thomasisha that Debra Broughton needed to change her attitude if she was going to go back to work.

19      Following the Claimant’s attendance at the NTP office on 1 December 2005 several written complaints were received by the committee about the Claimant’s conduct.  Those letters of complaint were never brought to the Claimant’s attention prior to these proceedings commencing and accordingly she has never had the opportunity to challenge the allegations made. 

20      Between the handing down of the WAIRC’s decision and the Claimant’s return to work, NTP’s committee embarked upon a process of reviewing its organisational structure.  In that process it attempted to identify the various positions within the organisation and the roles of employees occupying those positions.  It also reviewed policies relating to staff conduct and occupational safety and health.  That it seems was done as a consequence of certain criticisms made by Harrison C in her decision.  On 9 December 2005 Mercy O’Loughlin delivered to the Claimant a new but incomplete policy and procedure manual which was to be the subject of discussion between the Claimant and the committee upon the Claimant’s return to work.  The organisational chart and job description documents contained in the manual delivered to the Claimant (exhibit 9) indicated that her position of co-ordinator would no longer require her to be in charge of others.  Her position was out on a limb.  No one was to be accountable to her.  Although the evidence concerning what the Claimant did prior to her termination in April 2005 is somewhat scant it is nevertheless sufficient to establish that prior to termination, the Claimant was responsible in a significant way for the day to day management and operation of the Respondent’s activities and in that regard was in charge of other employees and directed them.  That function was removed from her in the restructure.  Whereas she had previously held a powerful position, her return to work was to be as a “nobody.”

21      Prior to her return to work the Claimant had been warned by those close to her who also had an association with NTP that she would not be going back to her old job.  When she returned to work on Monday 12 December 2005 she felt unwelcome.  In light of what she had been previously told, she approached Coral Mencshelyi and asked her who the boss was.  That drew the reply that the committee was the boss.

22      The Claimant thereafter returned to her office and remained thereat with Michelle Champion.  That afternoon the Claimant left her office and went to the conference room for the purpose of meeting with committee members who she knew to be there.  As she opened the door she observed Mercy O’Loughlin, Gloria Obbs and Coral Mencshelyi meeting with a lawyer namely Alan Dungey.  She overheard them discussing obtaining a restraining order against her.  The Claimant asked whether they were discussing her.  She was told that she was part of the discussion.  She immediately concluded that violence restraining orders would be sought without justification to stop her carrying out her job.  She testified that she remained at work that day but just floated around without direction or instruction.  No one from the committee met with her.  The next day she experienced more of the same, just floating around the office without direction.

23      On Wednesday 14 December 2005 the office was closed for its Christmas function.  The Claimant asserts that the office thereafter remained closed for the next two days.  She went to the office on both those days but found it to be closed.  Because she did not have a key, she could not gain entry into the office.  She had been refused a key upon her return to work. 

24      On Monday 19 December 2005 she returned to work.  She again that day sought a key but was refused.  Later that morning members of the committee, namely Beverly Sambo, Mercy O’Loughlin and Gloria Obbs, walked into the Claimant’s office. 

25      Ms Sambo told Michelle Champion, who was with the Claimant, to leave the office.  The Claimant protested saying that she had a right to have someone else sit with her.  Mercy O’Loughlin then agreed that Ms Champion could remain.  The Claimant was then handed an undated letter warning that her behaviour in the workplace was unacceptable.  The writer of the letter, namely Mercy O’Loughlin, alleged within the letter that the Claimant had verbally abused various staff and committee members.  The Claimant advised them that she did not agree with the allegations.  She informed them that she felt that she was being harassed.  She also told them that in view of what was transpiring she felt it necessary to video record the events and that the meeting was being videotaped.  The Claimant then asked Mercy O’Loughlin when the last committee meeting had been held.  Mercy O’Loughlin replied that a committee meeting had not been held for a long time.   The Claimant then told those present that she would not correspond with the committee otherwise than in writing.  She was only prepared to deal with any accusations in that way.  I note with interest that the videotaped recording has not been produced in these proceedings.

26      The next morning (20 December 2005) the Claimant received another warning letter written by Ms O’Loughlin (exhibit 11) this time complaining about her behaviour the previous day.  In that letter Ms O’Loughlin complained that the Claimant had mistreated and abused co-workers and that she had been disrespectful to committee members.  She also alleged in that letter that the Claimant had told those committee members present at the NTP’s office the previous day that they were “a bunch of uneducated niggers”.  The Claimant was instructed to desist from such behaviour and to cease making unauthorised video recordings within the office.  The Claimant was threatened with dismissal should any further unacceptable behaviour occur.  It is of note that the Claimant failed to disclose in her own testimony that she had used such offensive words.  When cross-examined as to whether she uttered those offensive words she said that she could not remember.  However the fact she uttered those words is beyond doubt.  Indeed witnesses she called, including Ms O’Loughlin, whose evidence I accept testified that those words were used.

27      Subsequently Mercy O’Loughlin and other committee members discovered that the Claimant had, on or about 20 December 2005, taken mail addressed to the Respondent and locked the same into her filing cabinet without it being logged into the office’s administrative system.  Consequently NTP was denied access to its mail.  That caused Mercy O’Loughlin to write to the Claimant seeking an explanation for her conduct.

28      The Claimant did not thereafter attend work.  She testified that resulted from NTP’s office being closed from Wednesday 21 December 2005 until Friday 23 December 2005 inclusive.  Given that the office was scheduled to remain closed between Christmas and New Year it was her intention to resume work when the office re-opened on 2 January 2006.

29      In late December 2005 a young man close to the Claimant, whom she regarded as a brother, died.  His funeral was set for Friday 6 January 2006.  The Claimant was actively engaged in organising the funeral and accommodating visitors who had travelled to the Kalgoorlie area to attend the funeral.  She was also at that time grieving for the deceased.  Consequently, on Tuesday 2 January 2006 she attended the NTP’s office.  Upon arrival she quickly checked her emails and then proceeded to the boardroom.  Located in the boardroom were Mercy O’Loughlin, Gloria Obbs and Beverly Sambo.  Mercy O’Loughlin told the Claimant that the committee members wanted to speak to her.  The Claimant responded that was not possible at that stage and that they needed to wait until the following week.  She explained to them her need to take bereavement leave for the remainder of the week.

30      On Monday 9 January 2006, because the Claimant still had visitors at her home and was still grieving she contacted NTP’s office to advise that she would not be attending work.  That same day Beverly Sambo prepared a letter addressed to the Claimant.  The letter stated:

Re:  Letter of Dismissal

You give us no other choice than to take this action into dismissing you from your employment as the NTP co-coordinator (sic) as of today 9th of January 2006.

The application that you made for leave was not in compliance with the standard process nor was leave granted by the Executive Committee.  Your action is in direct conflict with the Policy and Procedures of NTP in that you are not co-operating with the Executive Committee and you are not following instructions as directed by the Executive Committee members.

You appear to have abandoned your employment and the three strikes have gone against you.  Please collect your personals from the premises within 24 hours and any future trespass or approach to any of our staff will result in legal action against you.  Please return the vehicle keys and the mail immediately.

31      The following day the Claimant, who was unaware of the letter of dismissal, contacted NTP to discuss a client issue.  In the process Beverly Sambo took the telephone, spoke to the Claimant and informed her that she had been sacked.  The Claimant was told to “go to the post office and get your mail”.  The Claimant thereafter did not return to NTP’s office.  The Claimant did not accept that her dismissal was valid.  She took the view that the decision made to dismiss her was unconstitutional. 

32      On 13 January 2006, the Claimant wrote to NTP advising that she had no choice but to stay on leave until her concerns were addressed at the Annual General Meeting (AGM) or a Special General Meeting.  She also complained of having been harassed whilst on bereavement leave which she said was totally disrespectful.

33      Between the date of her dismissal and the AGM scheduled for 13 February 2006, the Claimant contacted both State and Commonwealth funding bodies to advise them of the situation and seeking their assistance in mediation.  Both bodies agreed to mediate and representatives travelled to Kalgoorlie.  On 9 February 2006 mediators met separately with the Claimant and NTP’s committee however the dispute did not resolve. 

34      On 13 February 2006 when NTP’s AGM was held, a new committee was elected.  Some committee members including Mercy O’Loughlin and Gloria Obbs failed in their attempt to be re-elected.  On 15 February 2006 Mercy O’Loughlin contacted the Claimant and informed her that she had never been sacked and that her job was still there.  They agreed to catch up later to discuss matters.  On 21 February 2006 the Claimant went to Mercy O’Loughlin’s residence.  Gloria Obbs and Anita Morrison were also there.  Mercy O’Loughlin told her that there had not been any committee meeting to sack her and her job was still there. 

35      A couple of weeks after the AGM the Claimant together with Mercy O’Loughlin, Gloria Obbs and Anita Morrison attended NTP’s office.  Upon arrival they were confronted by Ms Broughton who challenged their right to be there.  The Claimant and those with her insisted on meeting with Ms Passmore-Skelly in order to discuss Harrison C’s order.  They waited for about 45 minutes before Ms Passmore-Skelly appeared.  When she appeared she told the Claimant to leave.  She told her that the police had been called.  Police eventually arrived and ushered the group from the office.

36      On 28 February 2006 the Claimant prepared an originating claim for lodgement in this Court alleging that the Respondent had failed to comply with Orders 2, 3 and 4 made by Harrison C on 28 November 2005.  The Claimant initially sought orders in the alternative including the enforcement of the reinstatement order however now accepts that reinstatement is no longer appropriate.  She therefore now only seeks the revocation of Harrison C’s order and in substitution thereof alternate orders as provided by section 83B of the Industrial Relations Act 1979 (IRA).

Evidence

Claimant’s Case

Jennifer Carter

37      The Claimant’s version of events is largely as set out above under the heading “Background”.

38      When cross-examined the Claimant conceded having received back pay for the period 18 April 2005 until her resumption and thereafter payment through to the date of her termination on 9 January 2006.

39      She also conceded having received a letter from the Respondent acknowledging her reinstatement.  She agreed with Counsel that notwithstanding her reinstatement she wanted to take the matter of her unfair dismissal further to a Special General Meeting to air her grievances about the treatment she endured which had led to her termination.

40      The Claimant denied being aggressive and loud in her approach to those staff members whom she felt had been responsible for her earlier unfair dismissal.  Further, she denied that she was a violent person.  It was put to the Claimant that she had been the subject of restraining order applications and was asked whether she had previously been the subject of a restraining order application.  She said that she could not recall being the subject of a particular restraining order application.  She testified that she did not recall having appeared before His Honour Parker J in the Supreme Court of Western Australia with respect to it.  When prompted that the application had been taken out by Ms Brodie the Claimant said that she did not recall.  It was apparent that the Claimant was evasive with respect to the issue.

41      The Claimant’s memory was also lacking when questioned about the incident on 19 December 2005.  The fact that she offended committee members present at the NTP’s office is undeniable.  The Claimant’s own witnesses Gloria Obbs and Mercy O’Loughlin say that she uttered those offensive words, yet the Claimant cannot recall it.  I would have thought that such a remark given its nature and given that it was the subject of a warning letter the next day, would have been in the forefront of the Claimant’s mind.

42      The Claimant was challenged about her failure to return to work in early January 2006.  She denied having refused to go back to work.  She explained that she took bereavement leave and as such there was no need to obtain approval.  Such leave, given its nature, was taken without need for approval.  That was the practice.

43      The Claimant conceded that at the time of her dismissal on 9 January 2006 she was NTP’s co-ordinator as a consequence of her reinstatement in November 2005.  That is why she wrote her letter dated 13 January 2006 asserting that she would remain on leave until her concerns were addressed at a Special General Meeting or the AGM.

44      The Claimant said that she could not thereafter return to work because the police had removed her from NTP’s office and also because Yasmin Sambo and Deborah Broughton had obtained violence restraining orders against her which effectively precluded her from returning to her workplace.

45      The Claimant was shown an affidavit which she swore on 21 March 2006 in opposition to the restraining order application made.  In that affidavit she said,

“I am currently employed full time as a co-ordinator of NTP Aboriginal Corporation at 45 Hannan Street, Kalgoorlie as required under section 6D of NTP’s Constitution”.

46      She conceded that the statement was true at the time that it was made. 

47      The Claimant explained, under cross-examination, that she is not saying that the Respondent failed to reinstate her, but rather that her employer failed to abide by the orders made by the WAIRC by failing to reinstate her to her position.

Miriam Champion

48      Ms Champion was a NTP Committee member in January 2006.  She denied having, on 9 January 2006, moved a motion concerning the Claimant’s termination as is reflected in minutes of the meeting (exhibit 25).  When cross-examined she told the Court that she does not move motions at meetings.

Gloria Obbs

49      Ms Obbs was NTP’s Treasurer at the material times.  She testified that following receipt of the WAIRC’s decision discussions were held to determine what to do.  As a consequence of those discussions the committee decided to delay the Claimant’s return to work by a week.  Furthermore discussions were held concerning who was to be in charge following the Claimant’s return to work.  She testified that the committee decided that Coral Mencshelyi was to be in charge.

50      When cross-examined Ms Obbs agreed that the delay in the Claimant’s return to work was because they needed to put procedures in place to make her return to work as smooth as possible. 

51      Ms Obbs also agreed, under cross-examination, that the Claimant had been the subject of numerous complaints about her aggressive behaviour in December 2005.

Mercy O’Loughlin

52      Ms O’Loughlin was a NTP committee member from 2001 until February 2006 at which time she was not re-elected.  She was Vice Chairperson during the material period.  She testified that NTP was not well run particularly after the Claimant’s dismissal in April 2005.  She told the Court that NTP’s committee procedures were defective.  Often informal committee meetings were held and she said that minutes of those meetings were not kept.

53      She testified that news of the WAIRC order to reinstate the Claimant was not well received.  She said that the Claimant’s return to work was delayed so as to facilitate changes to ensure that the Claimant would not be able to exercise the same influence she previously exercised in the position to which she was to return.  It was intended to stop the Claimant returning to her previous role in the co-ordinator’s position.  She said that new policies were created aimed at having the Claimant return to the position “as a nobody”.  The organisational structure was changed so that the Claimant would be on the outer with no one responsible to her.  No one was to be accountable to her and that was inconsistent with the co-ordinator’s role.

54      With respect to staff complaints relating to the Claimant, she said that she was aware of those, but none of the written complaints received were ever considered by the committee at a properly constituted committee meeting.  Accordingly no resolutions were passed in relation to them.

55      Ms O’Loughlin testified that various letters sent or given to the Claimant following her reinstatement were not created as a result of committee decisions, but rather resulted from informal discussions between some committee members.  She said that she was under pressure to write the letters that she did by those in the office who did not want the Claimant there.  Indeed the strength of feeling was so high that Coral Mencschelyi and her husband attended Ms O’Loughlin’s home after hours to consider and discuss what could be done about the WAIRC’s orders.  They then went to the NTP’s office to search the internet to see what could be done about the decision.  They and others did not want the Claimant back at NTP.  Indeed Thomasisha Passmore-Skelley kept on telephoning Ms O’Loughlin to see whether she had been able to get rid of the Claimant.

56      When cross-examined Ms O’Loughlin denied being upset at not having been re-elected to the committee on 13 February this year but nevertheless accepted that soon after the AGM she contacted the Claimant to offer her assistance in this matter.

57      Ms O’Loughlin conceded, when cross-examined, that at a committee meeting held on 19 December 2005 the Claimant’s conduct was discussed.  Particularly discussed were the complaints received from health workers and other employees relating to the Claimant’s conduct following her reinstatement.  She further conceded that it had been a committee decision that the Claimant be given her second written warning (exhibit 11) relating to what had transpired earlier that day.

58      Ms O’Loughlin was cross-examined about NTP policies and procedures.  In that regard she agreed with the proposition put to her that at the time that the Claimant was first dismissed in April 2005 the NTP had not defined each employee’s role within the organisation and that employees had been left to define their own roles.  There was a lack of adequacy in the policies and procedures then in place.  As a result of the WAIRC hearing, the need to define each person’s role became evident and Rosemary Hunt was called in for that purpose. Her involvement was informally arranged.

59      Ms O’Loughlin also conceded that the letter of dismissal dated 9 January 2006 sent to the Claimant was the subject of a committee discussion and agreement reached at a meeting.  Notwithstanding that, she maintained that there was a degree of informality about the NTP’s meetings.  Not all meetings were documented and the minutes, if taken, would not necessarily accurately reflect what was discussed.  She proffered the view that such occurred because the Claimant was not there to keep things in order. 

Michelle Champion

60      Ms Champion, an employee of NTP, testified about the 25 November 2005 meeting called to discuss the Claimant’s reinstatement.  Her evidence in that regard is as I have related it in the background above.

61      Ms Champion also testified about the events that occurred at NTP’s office on 1 December 2005.  She said that there was no abuse, threats or violence perpetrated by the Claimant at that time.  Rather it was Deborah Broughton and Ann Forrest who were being unco-operative in hurrying the Claimant along, purportedly because they had to leave the NTP’s office.  Ann Forrest did not however leave the office that afternoon.

62      Ms Champion was with the Claimant when she returned to work on 12 December 2005.  She was also present on 19 December 2005 when three committee members entered the Claimant’s office.  She said that when they entered the Claimant’s office, the committee members shouted at Ms Champion to leave the office.  The Claimant protested the requirement and for her part Ms Champion refused the instruction.   That then resulted in Mercy O’Loughlin conceding that Ms Champion could remain.  Her testimony was that the committee members were aggressive towards the Claimant.

63      Ms Champion when cross-examined was not swayed in her version of events.

Adele Bonney

64      Ms Bonney was with the Claimant when she attended NTP’s office on 1 December 2005.  She testified that the Claimant did not abuse staff members that afternoon.  She corroborates the Claimant’s evidence that Ms Broughton was rude to the Claimant.  She did not make any pertinent concessions when cross-examined.

Tamara Bonney and Shirley Bonney

65      Neither gave relevant evidence concerning the matter.

Respondent’s Case

66      The Respondent did not call witnesses but rather tendered its business records relating to payments made to the Claimant.  It also tendered letters of complaint relating to the Claimant from various staff members.  They were produced not to prove their content but rather to prove the fact that written complaints had in fact been made.

Respondent’s Submission on Liability

67      The Respondent observes that section 23A of the IRA contains the powers available to the WAIRC consequent upon a finding that the dismissal of any employee was harsh, oppressive or unfair.  In particular subsections 23A (3) and (5) provide:

(3) The Commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal

(4) ………

(5) The Commission my, in addition to making an order under subsection (3) or (4), make either or both of the following orders –

(a) an order it considers necessary to maintain the continuity of the employees employment;

(b) an order to the employer to pay the employee the remuneration lost or likely to have been lost, by the employee because of the dismissal.

68      The Respondent argues that because in this case reinstatement of the Claimant did in fact occur, the main issue to be determined is whether the Claimant was reinstated to her former position on conditions at least as favourable as to those existing prior to her dismissal.

69      The Respondent says that it has complied with the WAIRC orders in every respect.  In its letter dated 25 November 2005 the Respondent acknowledged the Claimant’s reinstatement with effect from 28 November 2005.  It submits that the direction given to the Claimant that she not return to work until 12 December 2005 was not inconsistent with the WAIRC’s orders.  The Respondent suggests that the Claimant has misconceived the situation by taking the lawful directive not to return to work until 12 December 2005 as a failure to reinstate her to her position.  It points out that such direction was not going to have any detrimental effect upon her because she was going to be paid whilst on leave and because she would receive all her entitlements.  It says that her claim based on that alleged non compliance is patently incorrect.

70      Insofar as the claim relates to the alleged failure to return her to her former position the Respondent says that the Claimant has failed to discharge the evidentiary onus resting upon her.  She had to necessarily demonstrate what the position entailed in April 2005 and then show how it differed to what she went back to in December 2005.  She was required to establish the differences between the two situations but has failed to do that.  The Respondent says that those matters have not been squarely addressed and that evidence given by the Claimant concerning her perception that she was, upon her return to work, “a nobody”, is not sufficient to establish her claim.  It is argued that given the state of the evidence it is not possible for the Court to draw any conclusion about whether or not the Claimant’s roles pre-termination and post-reinstatement were the same.  In those circumstances it would be impossible for the Court to draw inferences leading to the conclusion that the Respondent failed to reinstate the Claimant to her position.  The Respondent argues in any event that the evidence establishes that the Claimant’s role, after reinstatement, was the same as that which she previously held.  Her management role which required her to implement and obtain funding, liaise with the community and do all things that a co-ordinator would be expected to do in obtaining funding for the program remained constant.

71      The Respondent points out that the Claimant was reinstated as of 28 November 2005.  Such is demonstrated by her actual return to work and by her admission, in the restraining order proceedings commenced after her reinstatement, that she was employed as a co-ordinator by NTP.  The fact that she was reinstated cannot, on the Respondent’s view, be challenged.

72      The Respondent says that subsequent to the Claimant’s reinstatement it did all it could to ensure that the work environment was maintained in a constructive and non hostile manner.  Despite that, the Claimant continually disobeyed lawful instructions given to her by the committee.  She refused to communicate with the committee other than in writing.  She had her niece with her at all times whilst in the office and further attempted without approval to video record conversations.  Her conduct was not in keeping with the proper performance of her duties and made the Respondent’s situation difficult if not impossible.

73      The Respondent says that the Claimant abandoned her employment following a sequence of events commencing with the taking, without approval, of bereavement leave on 3 January 2006.  On 9 January 2006 she simply failed to attend work and subsequently on 10 January 2006 when she was informed that she had been sacked she did not accept that.  By 13 January 2006 when the Claimant had continued in her failure to attend work she effectively abandoned her employment.

74      With respect to the issue of credit, the Respondent urges the Court to treat the evidence of Miriam Champion and Adele Bonney cautiously given that they are related to the Claimant.  So far as Ms O’Loughlin and Ms Obbs are concerned it is submitted that they were former members of the committee who were not re-elected to their positions and therefore have an axe to grind with the NTP.  They were proactive in assisting the Claimant and maintained more than a passing interest in these proceedings.  Further the Respondent points out that Michelle Champion’s evidence under cross-examination reveals that it had always been the intention of the NTP to reinstate the Claimant to her former position as the Claimant well understood.  Finally, so far as the Claimant’s evidence is concerned, the Respondent submits that the Claimant has made clear admissions that she had been reinstated as the co-ordinator, yet for the purposes of these proceedings maintains that she has not.  Both cannot be right, she was either reinstated or she was not.  The fluctuation in her evidence reflects that the Claimant is prepared to say whatever she thinks will assist her.

Determination

Credit

75      The Respondent attacks the credit of the Claimant and her witnesses.  Whilst acknowledging that some witnesses are related to the Claimant that of itself does not detract from their evidence.  There has been no particular reason demonstrated to lead me to reject their evidence.  I accept that they are witnesses of truth.  Although Mercy O’Loughlin and Gloria Obbs have proactively assisted the Claimant following their non election to the committee that of itself does not necessarily mean they have an axe to grind.  Mercy O’Loughlin was quite an impressive witness.  She gave a warts and all account of what transpired.  There is nothing to establish that she is motivated by malice towards the Respondent or that she has some other ulterior motive against the Respondent’s interests.  Rather, I formed the view that she now regrets what transpired and has set about attempting to put things right.

76      So far as the Claimant is concerned, although her evidence is generally acceptable, it is nevertheless the case that on issues that might have revealed flaws in her character she sought the refuge of forgetfulness.  In particular, I found bewildering her inability under cross-examination to recall her participation in Supreme Court proceedings with respect to a restraining order application and also her inability to recall the offensive words uttered on 19 December 2005.  It is obvious that the Claimant sought to hide her occasional aggressive nature and predisposition to making offensive and intemperate remarks.

Findings of Fact

77      I find to be fact those which I have set out above under the heading “Background”.

Reinstatement

78      As discussed previously the pivotal issue to be determined in this matter is whether the Respondent has complied with Order 2 made by the WAIRC on 28 November 2005 which provided:

“…….that the Respondent shall reinstate Ms Carter in its employment to her former position as if her contract of employment had not been terminated on 27 April 2005, within seven (7) days of the date of this order.”

79      The Respondent asserts that it reinstated the Claimant with effect from 28 November 2005, but delayed the Claimant’s actual return to work until 12 December 2005 as it was entitled to do.  However the question to be answered is whether the Respondent is correct in its contention that it was entitled to delay the Claimant’s return to work.  That question can only be resolved upon a consideration of the meaning of “reinstatement”.

80      The meaning of reinstatement was considered by Madgwick J in Blackadder v Ramsey Butchering Services Pty Ltd [2000] FCA 603.  His Honour was required to determine whether the Respondent in that matter had failed to comply with Australian Industrial Relations Commission’s (AIRC) orders that the Applicant be reinstated. 

81      The facts of that matter were that on 29 March 2000 pursuant to section 170CH of the Workplace Relations Act 1996 (WPA) the AIRC ordered that the Applicant be reinstated without loss of continuity of service or entitlements within 21 days.  The Respondent was also ordered to reimburse the Applicant for all lost salary and entitlements from the date of termination to the date of reinstatement less an agreed amount of salary received by the Applicant through alternative employment.  The employer lodged a notice of appeal and stay application on 18 April 2000.  Leave to appeal was refused by a Full Bench of the AIRC on 26 June 2000.

82      On 3 May 2000 after the proceeding for the stay application, the employer wrote to the Applicant advising that he had been reinstated to his position as of 20 April 2000 but would not be required to report to work until he attended and passed a medical examination.  The Applicant was advised that he would continue to receive his wages, being his ordinary pay plus the average of the tally paid to all the boners in any given week, as well as receiving his other entitlements.

83      On 5 May 2000 the Applicant did not attend the medical appointment arranged for him on the basis that:

1. The order for reinstatement was not conditional;
2. The Applicant was ready and willing and able to resume his pre-termination boning work;
3. There had been no change in his medical condition since his employment to warrant a further medical examination; and
4. The Respondent’s requirement had little, or nothing, to do with any concerns for the health, safety and welfare of the worker.

84      On 7 June 2000 the Applicant was advised that his wages would cease.  On 26 July 2000 the Applicant advised he was willing to attend a medical examination.  On 12 September 2000 the Applicant was advised that he was to utilise all accrued leave pending his medical examination.  By the time he attended the next medical examination arranged for 6 February 2001 his accrued entitlement was exhausted.  His medical examination did not take place on the appointed date because the doctor was unwilling to conduct the examination in the presence of the Applicant’s wife and the Applicant was unwilling to have an examination in his wife’s absence.  Later, following a successful medical examination, his payments resumed.  He did not however return to work.

85      In considering the meaning of reinstatement for the purposes of section 170CH His Honour, after having reviewed a number of Australian authorities, said at paragraph 49:

“However, in the absence of authority to the contrary, I would agree that reinstatement under s 170CH of the Act does implicitly involve a return of the employee to the workplace.  The Act contemplates that it is only in circumstances where reinstatement is inappropriate that the suitable alternative is to award payment in lieu of reinstatement (s 170CH(6)).  Thus, the apparent statutory purpose of the relief is to treat the dismissal as ineffective and restore the employment situation to its pre-termination status.  If a direction to reinstate an employee required no more than that the employee be put back on the payroll, it is difficult to see why reinstatement would even be “inappropriate”.  Further, as Wilcox CJ observed in Perkins v Grace when considering the meaning of “reinstated” for the purposes of s 170EE, the predecessor of s 170CH, such meaning should be considered in light of its usage in industrial parlance.  Such parlance would understand reinstatement to include reinstatement in the sense just mentioned, including all the usual incidents of the employment, such as attendance at the workplace and there being furnished with one’s usual productive work”.

86      His Honour went on to say at paragraph 55

“Taking these findings into account, the order to reinstate the applicant plainly intended that he would not only receive his wages and other entitlements but, in the first instance, at least, return to his former position of employment, namely to a position undertaking boning in the big boning room”.

87      His Honour found that reinstatement had not occurred.  The decision was appealed to the Full Court of the Federal Court of Australia which upheld the appeal.  The decision of the Full Court of the Federal Court was appealed to the High Court of Australia.  The High Court of Australia unanimously allowed the Applicant’s appeal (see Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22). 

88      In allowing the appeal His Honour McHugh J said at paragraph 14:

To construe the power “to reinstate” as confined to restoring contractual or other legal rights fails to give full effect to the term “reinstate”.  To reinstate means to put back in place.  In this context, it means that the employment situation, as it existed immediately before the termination, must be restored.  It requires restoration of the terms and conditions of the employment in the broadest sense of those terms.  It empowers the Commission to do more than restore the contract of employment.  So far as practicable, the employee is to be given back his “job” at the same place and with the same duties, remuneration and working conditions as existed before the termination.  The Full Court of the Federal Court erred in the present case by holding that “the emphasis on appointing the employee to a ‘position’ demonstrates that it is the contractual position which is either to be restored in its earlier terms or in equivalent terms.”

89      At paragraph 16 he said:

…His reinstatement was not subject to any condition that he was fit to perform his pre-termination duties.  An employer cannot evade the operation of a reinstatement order by making it subject to the employer’s satisfaction concerning the fitness of the employee or some other condition formulated by the employer.

90      His Honour Kirby J said at paragraphs 33 and 34

By the Act, and the order, reinstatement of the appellant was meant to be real and practical, not illusory and theoretical.  In effect, if the Respondent’s argument were correct, it would permit the Respondent to thumb its nose at the heart and core of the order made, namely that the appellant be “reinstated”, that is, according to the word’s derivation and ordinary meaning, “put back in place” in his former employment.  The Act does not grant the employer the unilateral power to buy its way out of the obligations imposed on it under a valid law of the Parliament.  The employer is bound to comply with the order and the Act.  Its failure to do so produces statutory consequences to which, by his orders, Madgwick J sought to give effect.

…

The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante.  It is not to anticipate every eventuality that might thereafter arise; nor is it to provide the employee the subject of it with employment for life.  What happens in the future, and what follows from what happens, depends on all the circumstances then obtaining.

91      Their Honours Callinan and Heydon JJ in their joint judgment said at paragraph 75:

All of the language of the relevant section must be given meaning.  The use in s 170CH(3) of the word “reinstate” is significant.  Section 170CH(3)(a) and (b) described the way in which the reinstatement may be effected.  “Reinstate” literally means to put back in place.  To pay the appellant but not to put him back in his usual situation in the workplace would not be to reinstate him.  The words “reappoint” and “position” should not be read in any restricted way.  They are intended to apply to a very wide range of workplaces and certainly not to a particular officer or officers.  It was therefore within the power of the Commission to make such an order as would contemplate or require that the employer provide a reappointed or reinstated worker with actual work to do.

92      It is of note that the relevant provisions in section 170CH of the WPA and section 23A of the IRA are not dissimilar and that the orders made by the AIRC albeit not identical were very similar to the orders made by the WAIRC with respect to the Claimant in this matter.  It will be obvious from the review of the decisions in Blackadder (supra) that reinstatement means to put the worker back in his or her usual position.  To pay a worker and not put him or her back in the position formerly held does not amount to reinstatement.  Although the factual circumstances in Blackadder (supra) were somewhat different to this matter in that the worker was not permitted to return to work at all, the overriding principle decided remains.  Consequent upon an order for reinstatement an employee must, within the time specified in the order, be returned to active duties in his or her former position.  Nothing short of that will suffice.

93      In the present matter the Respondent was obliged to strictly comply with the order of the WAIRC by enabling the Claimant to resume in her former position within 7 days of the making of the order.  That it failed to do.  Its payment of the Claimant awaiting her return on 12 December 2005 did not constitute reinstatement.  Nor for that matter did its acknowledgment on 25 November 2005 that the Claimant was reinstated with effect from 28 November 2005.  Reinstatement required the Claimant’s return to the workplace within the time specified by the order so that she could carry out her duties as a co-ordinator in the same way as she had done prior to termination.  That simply did not occur.  The Respondent was not entitled to evade the operation of the reinstatement order as it did by making it subject to conditions that it unilaterally formulated.  In my view the Respondent has clearly breached the order by delaying the Claimant’s return to work.

94      Further, and in any event, I am satisfied that the Claimant did not, when she was able to do so, return to her former position.  Although she returned to the position of co-ordinator, such position had fundamentally changed.  I am satisfied that the evidence establishes that whereas the Claimant previously held a position of power with control over subordinates, the position to which she returned did not.  She did not control anything or anyone in the position to which she returned.  She no longer had subordinates and was truly “a nobody”.  She was not even permitted a set of keys to gain entry into the office.  That was far removed from her previous situation.  Her role was fundamentally changed to remove her from influence and control over other employees.  Her return to work was delayed so as to facilitate those changes before she resumed working.  The approach taken by the Respondent towards the Claimant’s return to work is consistent with what was discussed at the meeting conducted on 25 November 2005.  It is the case that the Claimant was not wanted and that she was to be side lined.  The Respondent intended to entirely emasculate her powers and influence.  Accordingly even if it could be said that the Respondent had otherwise complied with the WAIRC’s order with respect to reinstatement, I find that it has failed to reinstate the Claimant because the functionality of the position to which the Claimant returned was fundamentally different to that which prevailed formerly.  Had the Respondent allowed the Claimant to return to work within the specified period without change to her position then reinstatement would have been achieved, however that did not occur.  I find that the Respondent, faced with an unpalatable outcome, attempted to circumvent WAIRC’s orders by only accepting the Claimant back to the workplace on its terms.  However it was not in a position to dictate terms.  It should have facilitated the Claimant’s resumption within seven days of the order and thereafter set about implementing any changes considered necessary.

Remedy

95      The remedy for non compliance with the WAIRC’s orders is contained in section 83B of the IRA which provides:

83B.    Enforcement of unfair dismissal order

(1) Where an employer contravenes or fails to comply with an order made under section 23A any of the following may apply in the prescribed manner to an industrial magistrate’s court for the enforcement of the order —

(a) the Registrar or a Deputy Registrar;

(b) an Industrial Inspector;

(c) an organisation of employees in which the employee in relation to whom the order is made is eligible to be enrolled as a member or an association that represents such an organisation; and

(d) the employee in relation to whom the order is made.

(2) No fee is payable for the filing of an application under subsection (1).

(3) On an application under subsection (1) in respect of a contravention or failure to comply with an order under section 23A(3) or (4), the industrial magistrate’s court may —

(a) if the contravention or failure to comply is proved, make an order for whichever of the following type of remedy was requested in the application —

(i) an order that the employer do any specified thing, or cease any specified activity, for the purpose of preventing any further contravention or failure to comply with the order;

(ii) an order revoking the order, and any associated orders, made under section 23A and, subject to subsection (7), ordering the employer to pay to the employee an amount decided by the industrial magistrate’s court;

or

(b) dismiss the application.

(4) On an application under subsection (1) in respect of a contravention or failure to comply with an order under section 23A(5), (6) or (12), the industrial magistrate’s court may —

(a) if the contravention or failure to comply is proved, order the person to do any specified thing, or to cease any specified activity, for the purpose of preventing any further contravention or failure to comply with the order; or

(b) dismiss the application.

(5) The industrial magistrate’s court may, in addition to making an order under subsection (3)(a) or (4)(a) —

(a) issue a caution or impose such penalty as the industrial magistrate’s court thinks just but not exceeding $5 000;

(b) in the case of an order under subsection (3)(a), order the employer to pay to the employee, in addition to any remuneration or amount ordered to be paid, the remuneration lost, or likely to have been lost, by the employee because of the contravention or failure to comply with the order under section 23A; and

(c) make any ancillary or incidental order that the court thinks necessary for giving effect to any order made under this section.

(6) An order under subsection (3)(a) or (4)(a) —

(a) shall, unless it has immediate effect, specify a time within which the order must be obeyed (which time may be extended by the court); and

(b) may be made subject to any terms and conditions the court thinks appropriate.

(7) The amount ordered to be paid under subsection (3)(a)(ii) —

(a) is not to be less than 6 months’ remuneration of the employee in relation to whom the order is made; and

(b) is not to exceed 12 months’ remuneration of the employee in relation to whom the order is made.

(8) For the purposes of subsection (7) the industrial magistrate’s court may calculate the amount on the basis of an average rate received by the employee during any relevant period of employment.

(9) In deciding an amount for the purposes of making an order under subsection (3)(a)(ii), the industrial magistrate’s court is to have regard to —

(a) the efforts (if any) of the employer and employee to mitigate the loss suffered by the former employee as a result of the dismissal;

(b) any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress was also the evidence necessary to establish the claim before the Commission under section 23A; and

(c) any other matter that the court considers relevant.

(10) A person shall comply with an order made against that person under subsection (3)(a) or (4)(a).

Penalty: $5 000 and a daily penalty of $500.

96      What is immediately obvious from section 83B is that employers are exposed to significant repercussions for a failure to comply with orders made by the WAIRC under section 23A.  Pursuant to section 23A of the IRA, where reinstatement is considered to be impracticable upon a finding of unfair dismissal, the employer is exposed to maximum liability of six months remuneration.  A failure to comply with the WAIRC’s orders however renders the employer liable to consequences far in excess of that initial exposure.

97      At the commencement of the hearing the Claimant advised the Court that she no longer pursues her claim made pursuant to section 83B(3)(a)(i).  In other words she does not seek reinstatement.  Given the history between the Claimant and Respondent, reinstatement is obviously impracticable.  Accordingly, the Claimant proceeds pursuant to section 83B(3)(a)(ii).  It will be appropriate for the Court to proceed upon that basis.  That provision enables this Court, subject to subsection (7), to order the employer to pay an employee an amount to be decided by the Court.  It provides that the amount ordered is not to be less than six months remuneration but is not to exceed twelve months remuneration.  Subsection (8) instructs how the Court is to calculate the amount to be ordered under subsection (7).  Subsection (9) requires the Court, for the purpose of making an order under subsection (3)(a)(ii), to have regard to the efforts (if any) made by the employee to mitigate his or her loss, any redress obtained under other enactments and any other matter that the Court considers relevant.  Subsection (5) provides that the Court may, in addition to making an order under subsection (3)(a), issue a caution or impose a penalty not exceeding $5000.  It may also order the employer to pay to the employee, in addition to any amount ordered, the remuneration lost or likely to have been lost by the employee because of the contravention or failure to comply with the order under section 23A.  The Court is also empowered to make any ancillary or incidental orders that are necessary to give effect to any order made.  Subsection (6) requires the Court to specify a time within which the order must be obeyed and enables the order to be made subject to any terms and conditions the Court deems appropriate.

98      Counsel for the Respondent submits that the power to make an order under subsection (5)(a) for the payment of remuneration lost or likely to have been lost ought to be construed as having application only when a Court makes an order of the type envisaged by subsection (3)(a)(i) and accordingly does not apply to a situation where the Court, pursuant to subsection (3)(a)(ii), orders a revocation of the orders of the WAIRC.  With respect to Counsel for the Respondent I cannot agree.  The wording of subsection (5)(b) dictates that it has application to both eventualities set out in subsection (3)(a).

99      On 13 September 2006 the Claimant produced to the Court her revised claim.  In that document she set out her claims which are summarised as follows

• Compensation:

12 months pay - $53,722.50 gross 

($27.35 x 1950 hrs) , plus

• Loss of wages: 

Period - 9 January 2006 to 12 February 2007 (end of contract)

$58,813.05 net (exclusive of tax and salary sacrifice deduction), plus

• Loss of wages: 

Period - 2 October 2006 to 12 February 2007 (end of contract)

$21,632.86 gross, plus

• Loss of annual leave and leave loading

Period - 18 April 2005 to 30 September 2005

$7,371.01, plus

• Loss of long service leave –

Period - 9 April 2001 to 12 February 2006

$14,722.03.

100   The Respondent argues that the effect of the revocation of the WAIRC orders means that any payment already made pursuant to the orders of the WAIRC can no longer have effect.  Accordingly in those circumstances the amounts already paid to the Claimant stand to the Respondent’s credit.  The Respondent says that the Claimant has in effect already received six months payment, which is the minimum she is entitled to in any event.  Therefore the question becomes whether she should receive any further payment.  The Respondent points out that the Court has discretion as to whether it makes orders pursuant to subsection (5).  The Respondent contends that the order that this Court can make is limited to twelve months remuneration less what she has already received in the intervening period.  Given that the Claimant has already received, in effect, more than what she could have received under section 23A had reinstatement not been ordered, the appropriate outcome is that the Court just let things lie where they are.

101   In determining the outcome this Court is required, pursuant to section 83B(3)(a), to make an order for the type of remedy requested in the application.  The type of order requested in the application is that referred to in subsection (3)(a)(ii).  Although in her application the Claimant refers to subsection 3(ii) she clearly intended that to be (3)(a)(ii).  Accordingly it follows from what I have said that it is appropriate that I, pursuant to section 83B(3)(a)(ii) revoke the orders made by Harrison C on 28 November 2005 and make fresh orders as provided in section 83B.  I am therefore required to make an order for payment in accordance with subsection (7).

102   In determining the amount to be paid to the Claimant I have regard to the fact that the Respondent has paid the Claimant her entitlements to 9 January 2006.  To that extent the Respondent did not blatantly and totally disregard the orders of the WAIRC.  Notwithstanding that, it is obvious that the Respondent, unhappy about having to take the Claimant back, set about a process of ensuring that the Claimant would only work on its terms.  It was not entitled to make her return conditional.  Indeed it had a legal obligation to unconditionally allow the Claimant, within the prescribed period, to return to her former position.  The Claimant’s actual return to work when it did occur was problematic in any event because of the attitude of the Respondent’s committee members and many of her co-workers.  Consequently the whole episode was unsatisfactory.  Upheaval, distress and bitterness ensued and continued.

103   I take into account the aforementioned matters in deciding the amount payable to the Claimant.   In my view significant weight must be given to the fact that the Respondent, in compliance with the WAIRC orders, paid the Claimant her wages and entitlements.  The Claimant has had the benefit of such payments.  Accordingly, I am of the view that although the Respondent did not strictly comply with the orders and sought to make the same subject to its own requirements it did not, by the same token, totally disregard its obligations.  The amount payable should accordingly be the minimum provided pursuant to section 83B(3)(a)(ii) being six months remuneration.  Remuneration includes normal pay plus allowances at the average rate.  The amount payable is calculated as follows:

Ordinary Pay

Pay - 37.5 hours per week x 26 weeks = 975 hours x $27.10 (average rate) = $26,422.50

Allowances

Bi-lingual allowance - 26 weeks x $44.82 = $1165.32

District allowance – 26 weeks x $3.70 = $96.20

Total - $27,684.02

104   Although the Respondent has failed to discharge the onus of establishing pursuant to subsection (9) those factors which would reduce the Claimant’s entitlement pursuant to subsection (3)(a)(ii) it is of little import given the minimum amount is to be ordered.

105   I now move to consider whether orders should be made pursuant to subsection (5).  Although it has been submitted that the Court’s powers are discretionary I would have thought that the orders referred to in subsection (5) should axiomatically be made unless good reason is advanced to the contrary.  In my view no good reason has been advanced as to why such orders ought not to be made in this matter.  The making of such follows the event of the finding against the Respondent.  Those who fail to comply with orders of the WAIRC expose themselves to significant financial ramification.  The financial ramification is there to impose both personal and general deterrent effect.  The hierarchical process contained in section 83B envisages not only the payment of an amount pursuant to subsection (3)(a)(ii) and (7) which could be described as compensation, but also the recovery of lost remuneration, anticipated lost remuneration and the imposition of a penalty. 

106   The Claimant should recover pursuant to subsection (5)(a) payment for remuneration lost from the date of termination in April 2005 until the date orders are made by this Court.  She has lost income as a consequence of the Respondent’s actions.  Given that she had already received certain payments for the period April 2005 to 9 January 2006, she is entitled to retain the same and recover the balance of remuneration lost from 10 January 2006 to the date of this Court’s orders. 

107   Although the individual workplace agreement (exhibit 4) which in part governed the relationship between the parties states the applicable pay rate; it seems that the same has been varied by consent because the payslip exhibited demonstrates that the Claimant has received a higher rate of pay than that prescribed in the agreement and further that she has received certain allowances not referred to in the agreement.  It seems for reasons that are not readily apparent that award rates and allowances have been adopted as the rates upon which remuneration is based.  So much is evident from the documentary material before me.  The Respondent has not taken issue with those rates or their applicability.  The Claimant has been paid on that basis in the past.  Accordingly any lost remuneration payable should be calculated upon the same basis as was the case when the Claimant was in employment with the Respondent.  The following calculation, with respect to the Claimant’s lost remuneration, is made:

Lost remuneration

Pay and Allowances

Period 10 January 2006 to 7 July 2006

Pay:

25 weeks + 3 days x 37.5 hours per week = 960 hours x $27.10 =  $26,016.00

Allowances:

District allowance              –   25 weeks + 3 days x $3.70 =         $94.72

Bi-lingual allowance         -    25 weeks + 3 days x $44.82 =   $1,147.39

Total   $27,258.11 gross.

Period 10 July 2006 to 26 October 2006

Pay:

15 weeks + 4 days x 37.5 hours per week = 592.5 hours x $27.55 = $16,323.38

Allowances:

District allowance      –      15 weeks + 4 days x $3.70     =         $58.46

Bi-lingual allowance  -       15 weeks + 4 days x $44.82  =       $708.16

Total  $17,090.00 gross.

Annual Leave and Long Service Leave forming part of lost remuneration

108   Lost remuneration includes lost annual leave entitlements but cannot include long service leave accruals.  Whilst the Claimant’s annual leave is an accrued entitlement which is not contingent upon any qualification, the same cannot be said for long service leave.  The accrual in that regard is contingent upon the Claimant meeting the necessary qualification under the Long Service Leave Act 1958.  Further there are a number of other contingencies which might see the Claimant never receiving any particular entitlement including the lawful cessation or termination of her employment prior to achieving the qualification necessary.  In such instance no payment would be received.  Accordingly it is inappropriate to regard contingent accruals of long service leave entitlements as being part of remuneration.

109   With respect to annual leave and annual leave loading, the Claimant was paid those entitlements upon termination in April 2005 (see exhibits 14 and 15).  Her claim in that regard can therefore only run from 19 April 2005 until the date of this Court’s order.  The Claimant says that she has twice paid tax on annual leave entitlements received and that this Court should take the same into account.  In my view that is a matter that the Claimant should seek redress from the Australian Taxation Office.  Her entitlement with respect to annual leave and loading thereon can be calculated as follows:

Annual Leave

Annual leave - 19 April 2005 to 26 October 2006 (79 weeks + 3 days) – being

6.12 weeks x 37.5 x $27.55 = $6,322.73.

Leave Loading

$6,322.73 x 18.75% = $1,185.51

Total   $7,508.24 gross.

Remuneration likely to be lost

110   Having dealt with the issue of past lost remuneration the onus shifts to the Claimant to establish that she will continue to suffer a loss in remuneration that cannot be mitigated or ameliorated.  The Claimant has failed to produce any evidence concerning that issue.  There is no evidence before this Court concerning the Claimant’s ability to be otherwise employed.  Her claim in that regard cannot succeed.

Penalty

111   Finally, I must give consideration as to whether a caution or penalty ought to be imposed pursuant to subsection (5)(a).  In my view it is important for a penalty to be imposed to give a personal and general deterrent effect.  The clear message must be sent out that any breach of an order of the WAIRC will be viewed seriously and punished appropriately.  The integrity of the orders handed down by the WAIRC can only be maintained if they are adequately and appropriately enforced.  It is for that reason that a caution will not suffice in this instance and that a penalty must be imposed.

112   In determining the appropriate penalty I am guided by the approach taken by Madgwick J in Blackadder (supra).  In so doing I take into account that the Respondent has not previously breached any orders.  I also take into account that the Respondent partly complied with the WAIRC’s orders and conclude that an appropriate penalty is one of $750.

Conclusion

113   I find proven the Respondent’s failure to comply with the orders made by the WAIRC on 28 November 2005.  Accordingly the orders of the WAIRC will be revoked.  I intend, pursuant to section 83B(3)(a)(ii) of the IRA, to order in substitution thereof that the Respondent pay to the Claimant an amount of $27,684,02 less any tax appropriately deducted.  In addition I propose, pursuant to section 83B(5)(a), to order that the Respondent pay to the Claimant a penalty fixed in the sum of $750.  It will also be appropriate to make orders, pursuant to section 83B(5)(b).  The amounts appropriately ordered in that regard are as follows:

• Lost remuneration to 26 October 2006 amounting to $44,348.11; and
• Lost annual leave entitlements and loading to 26 October 2006 amounting to $7,508.24. 

114   Those amounts are gross amounts from which tax is to be appropriately deducted.

115   I will hear from the parties with respect to the orders to be made.

G. Cicchini

Industrial Magistrate