Dec 547/98 M Print Q0871

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.45 appeal against decision [Print P7328]

issued by Commissioner Gay on 11 December 1997

D.A. Moore

(C No. 39170 of 1997)

s.170CE application for relief in respect of termination of employment

D.A. Moore

and

Highpace Pty Ltd

(U No. 31246 of 1997)

JUSTICE BOULTON
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER WHELAN	MELBOURNE, 18 MAY 1998

Application for leave to appeal - leave refused.

DECISION

This is an application by Derek Moore (the applicant) for leave to appeal against a decision and order made by Commissioner Gay on 11 December 1997 [Print P7328]. In the decision, the Commissioner found that the termination of the applicant's employment by Highpace Pty Ltd (the Company) was harsh, unjust or unreasonable and determined that the appropriate remedy was an award of compensation.

The main issue for determination by the Commissioner arising from the submissions and evidence presented in the proceedings before him concerned whether the relationship between the applicant and the Company was one of employment. There was extensive argument put by the legal representatives of the applicant and the Company on this point. The Commissioner examined the relevant case law and the circumstances of the relationship between the parties and concluded that the applicant was an employee of the Company. The Commissioner also concluded that the applicant was not accorded a "fair go all around" and that there was no valid reason for the termination of his employment. The applicant was dismissed by the Company, after some 8 years employment, in circumstances where he had undergone serious surgery and needed a relatively short time to recover before he could return to work. In the circumstances of the matter, the Commissioner ordered that the Company pay compensation to the applicant in the amount of ten weeks' pay at the rate of $500 per week, less the applicable taxation payment.

The applicant has now sought to appeal against this decision on grounds related to the adequacy of the compensation awarded and the approach adopted by the Commissioner in determining the level of compensation. In particular, it was said that the Commissioner should not have reduced the compensation awarded on the basis of considerations regarding the effect of the order on the viability of the employer's undertaking: see s.170CH(7)(a) of the Workplace Relations Act 1996 (the Act).

The Company was not represented in the appeal proceedings. A letter forwarded to the Commission by the Company's accountants states that the Company ceased trading on 31 January 1998 as a result of insolvency and that it has no funds for legal representation in the appeal proceedings.

Subsections 170CH(6)-(10) of the Act deal with the making of orders by the Commission for the payment of compensation to an employee whose termination was harsh, unjust or unreasonable in lieu of ordering reinstatement. Of particular relevance in the present appeal, s.170CH(6), (7) and (10) provide:

"(6) If the Commission thinks that the reinstatement of the employee is inappropriate, the Commission may, if the Commission considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the employee an amount ordered by the Commission in lieu of reinstatement.

(7) Subject to subsection (8), in determining an amount for the purposes of an order under subsection (6), the Commission must have regard to all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's undertaking, establishment or service; and

(b) the length of the employee's service with the employer; and

(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and

(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and

(e) any other matter that the Commission considers relevant.

...

(10) For the avoidance of doubt, an order by the Commission under paragraph (4)(b) or under subsection (6) may permit the employer concerned to pay the amount required in instalments specified in the order."

In considering the remedy to be awarded, the Commissioner said in his decision:

"Particular regard has been had for Ms Richardson's [counsel for the Company] forceful alternative submissions as to remedy. Although I have noted the argument as to viability and that Highpace are a small company, this must be balanced in considering remedy against the dire consequences required to be endured by Mr Moore. It should also be recorded that I have accepted Mr Moore's attempts to mitigate. Reinstatement has no place in my considerations given the close working relationship which once existed and is required to exist between two people working in such personal tandem. Had Highpace been a larger concern I would not have found Ms Richardson's argument compelling. I have however applied s.170CH(7)(a).

In weighing these issues I have decided to award Mr Moore ten weeks pay at the rate of $500 per week, to be taxed at the appropriate rate. In the light of the s.170CH(7)(a) argument half of this amount is to be paid within 14 days of the date of the order I will now make and the second half of this amount within a further 14 days."

In the proceedings before us, it was contended that leave to appeal should be granted because the findings made by the Commissioner were not reasonably open on the material presented. It was said that there was insufficient evidence about the viability of the Company and that the Commissioner should not have reduced the amount of compensation payable on the basis of s.170CH(7)(a).

We have examined the material and submissions before the Commissioner including the submissions made by counsel for the Company regarding the nature and circumstances of the Company's business and the likely practical outcome of an order being made against the Company. We accept the submissions made by the applicant's counsel on appeal to the effect that where an employer seeks to rely on the circumstances referred to in s.170CH(7)(a), the employer must present evidence and/or argument as to the financial situation of the undertaking and the likely effect that an order for compensation would have on the viability of the undertaking. We also accept that there was limited material presented to the Commissioner on this matter apart from evidence regarding the downturn in the Company's business over the last 2 or 3 years and submissions that the likely outcome of an order would be to cause the shut down of the business.

It is unclear from the Commissioner's decision whether the consideration of s.170CH(7)(a) led the Commissioner to reduce the total compensation payable or whether this was merely the basis for the Commissioner determining that the compensation awarded was to be payable in two instalments. In these circumstances we have considered whether it was reasonably open to the Commissioner having regard to all the circumstances of the case before him to determine that ten weeks' pay at $500 per week was an appropriate amount to be paid to the applicant in lieu of reinstatement.

We are satisfied on our consideration of the material before the Commissioner and the circumstances of the case that it was open and in accord with the general requirement in the Act to accord to both the employer and employee concerned a "fair go all around" (see s.170CA) for the Commissioner to so determine. The Commissioner had to decide upon the amount of compensation to be ordered having regard to all the circumstances of the case. It has not been shown that the Commissioner made any error as to law or fact in reaching his decision or that the amount of the payment ordered is so unreasonable in the circumstances of the matter as to warrant interference by a Full Bench on appeal.

In these circumstances, we have decided to refuse leave to appeal.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Appearances:

P. Holding, solicitor, for the appellant.

Hearing details:

1998.

Melbourne:

April 30.

Decision Summary

		Termination of employment - unfair dismissal -- appeal - compensation - applicant sought to appeal against adequacy of compensation and approach adopted by Commission in determining the level of compensation - Bench found no error of law or fact - leave to appeal refused.
Appeal by Moore against a decision of Gay C [Print Q0871] on 11 December 1997.
C No 39170 of 1997				Print Q0871
Boulton J Watson SDP Whelan C			Melbourne	18 May 1998

Printed by authority of the Commonwealth Government Printer

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