David Roger Tognolini and Burnett Petroleum Distributors Pty Ltd Gary Loakes and Doftcombe Pty Ltd [1994] IRCA 9

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) No. QI 111/94 QUEENSLAND DISTRICT REGISTRY ) No. QI 112/94 No. QI 111 of 1994 BETWEEN: DAVID ROGER TOGNOLINI Applicant

AND: BURNETT PETROLEUM DISTRIBUTORS PTY LTD Respondent No. QI 112 of 1994

BETWEEN: GARY LOAKES Applicant

AND: DOFTCOMBE PTY LTD Respondent

CORRIGENDUM

Amendment to the Reasons for Judgment of Spender J delivered on 5 May 1994: . Delete the words "GENERAL DIVISION" where they appear in the fourth line of the Minutes of Order and in the third line of p. 1 of the Reasons for Judgment. Acting Associate to Spender J IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) No. QI 111/94 QUEENSLAND DISTRICT REGISTRY ) No. QI 112/94 No. QI 111 of 1994 BETWEEN: DAVID ROGER TOGNOLINI Applicant

AND: BURNETTPETROLEUM DISTRIBUTORS PTY LTD Respondent No. QI 112 of 1994

BETWEEN: GARY LOAKES Applicant

AND: DOFTCOMBE PTY LTD Respondent

CORRIGENDUM

Amendment to the Reasons for Judgment of Spender J delivered on 5 May 1994: . Delete the words "GENERAL DIVISION" where they appear in the fourth line of the Minutes of Order and in the third line of p. 1 of the Reasons for Judgment. Acting Associate to Spender J

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) No. QI 112/94 GENERAL DIVISION )

No. OI 111 of 1994 BETWEEN: DAVID ROGER TOGNOLINI Applicant

AND: BURNETT PETROLEUM DISTRIBUTORS PTY LTD Respondent

No. OI 112 of 1994 BETWEEN: GARY LOAKES Applicant

AND:. DOFTCOMBE PTY LTD Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: Spender J DATE OF ORDER: 5 May 1994 WHERE MADE: Brisbane THE COURT ORDERS THAT: The applications for interlocutory relief be refused.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA) QUEENSLAND DISTRICT REGISTRY ) No. QI 111/94 GENERAL DIVISION ) No. QI 112/94

No. QI 111 of 1994 BETWEEN: DAVID ROGER TOGNOLINI Applicant

AND: BURNETT PETROLEUM DISTRIBUTORS PTY LTD Respondent

No. OI 112 of 1994 BETWEEN: GARY LOAKES Applicant

AND: DOFTCOMBE PTY LTD Respondent

CORAM: Spender J PLACE: Brisbane DATE: 5 May 1994

REASONS FOR JUDGMENT

This is the first directions hearing of two related applications seeking principal relief under s. 170EA of the Industrial Relations Act 1988 ('the Act') which relevantly provides:

(i) A person ('the employee') may apply to the Court for a remedy in respect of termination of his or her employment. (3) An application must be made: (a) within 14 days after the employee receives written notice of the termination; or (b) within such further period as the Court allows on an application made during or after those 14 days. (4) Unless the Court otherwise orders, the parties to an application are the employer, the employee and, if the application is made under subsection (2), the trade union.

2

Section 170EB provides:

The Court must decline to consider or determine an application under section 170EA if satisfied that there is available to the employee by or on whose behalf the application was made an adequate alternative remedy, in respect of the termination, under existing machinery that satisfies the requirements of the Termination of Employment Con yen t i on. " Section 170EC requires the court to refer the matter to the Australian Industrial Relations Commission for conciliation. That section provides:

The Court is not to consider the merits of an application under section 170EA unless: (a) the Court has referred the matter to the Commission for conciliation and the Commission has certified that it has been unable to settle the matter; or (b) the Court is satisfied that it is not appropriate so to refer the matter. Each of the applications raises the question of whether, pending the determination of the application for principal relief, the Court should grant interlocutory orders concerning implementation of the decision to dismiss and matters associated with that termination.

In Proceedings No. QI 111 of 1994 the applicant, Mr David Tognolini, claims:

"1. An order declaring that the termination of the Applicant contravened Division 3 of Part VIA of the Industrial Relations Act 1988. 2. (a ) An order requiring the Respondent to reinstate the Applicant to his former

3 position as Manager of the Burnett Petroleum Distributors Pty Ltd Bundaberg depot on the terms and conditions applying to that position on 8 April 1994. (b) In the alternative, an order that the Respondent pay compensation in the amount of $I, 4 74,743.68 to the Applicant. Particulars (i) Salary $36,400.00 per year (ii) Estimated value of use and enjoyment of vehicle $9,000.00 per year (iii) Estimated value of use and enjoyment of telephone $260.00 per year $45,660.00 per year Period of lost employment 25 years and one month (to age 65 years). Estimated loss of salary for this period $i, 4 74,743.68 (two per cent has been allowed for inflation). 3. Damages for personal injury and injurious affection on the Applicant's health arising out of the unlawful termination of the applicant's employment by the Respondent. 4. Damages for impairment of the Applicant's future career prospects arising out of the stigma associated with having been summarily dismissed by the Respondent. 5. Damages for distress, humiliation and hurt feelings arising out of the unlawful termination of the Applicant's employment. 6. Damages for harm to the Applicant's personal and business reputation. 7. Interest. 8. Exemplary or punitive damages. 9. An order in the nature of an injunction restraining the Respondent from communicating the fact of the Applicant's summary dismissal to any person. - 10. An injunction restraining the Respondent from

4 replacing the Applicant as Manager at its Bundaberg fuel depot pending the hearing and determination of this Application. 11. Costs. 12. Interlocutory Relief The Applicant seeks an interlocutory injunction restraining the Respondent from replacing the Applicant as Manager at its Bundaberg fuel depot pending the hearing and determination of the Application. " In Proceedings No. QI 112 of 1992 Mr Loakes seeks similar orders. The reason for the similarity, I understand, is that the respondents are related companies, and it is for that reason that both matters have been listed and heard together. The difficulty that I raised with counsel concerns the power of the court to make the interlocutory order sought in the applications.

By way of preliminary, the material is silent as to establishing that there is a serious question to be tried concerning whether the termination was such as to amount to a contravention of Subdivision B of Division 3 of the Industrial Relations Act, but for present purposes I have proceeded on the basis that there is a serious question to be tried concerning that matter. The onus of proof on the interlocutory application is not straightforward. I note that s. 170EA empowers the Court to make the orders specified therein "after considering the merits of (the] application under s. 170EA", unless "satisfied that the termination contravened no provision of Division B of Part VIA", indicating that on any final hearing the onus is on the employer.

5

The major question that troubles me concerns the power of the Court to make the interlocutory order sought in each particular case or, speaking more generally, whether there is power, pending the determination of the principal proceedings, to require the employee to continue the employer/employee relationship. Section 170EE provides:

(I) After considering the merits of an application under section 170EA, the Court, unless satisfied that the termination of the employee's employment contravened no provision of this Division (other than section 170DD) may make such orders as it thinks appropriate in order to put the employee in the same position (as nearly as can be done) as if the employment had not been terminated. (2) The orders the Court may make include, for example: (a) an order declaring the termination to have contravened this Division; (b) an order requiring the employer to reinstate the employee; (c) an order that the employer pay compensation to the employee. (3) However, the Court is not to order the employer to reinstate the employee if the Court is satisfied that the termination contravened no provision of this division (other than section 170DB or 170DD). (4) Nothing in section 170EC or in this section limits the Court's power to make an interim or interlocutory order in relation to an application under section 170EA. " On its face, s.170EE(4) indicates that the court does have power to make, inter alia, the orders sought by the present applicants. However, s. 170EH provides:

Section 431 does not apply to a contravention or proposed contravention of Subdivision B. Section 431 provides:

6 The Court may grant an injunction requiring a person not to contravene, or to cease contravening, this Act. On one reading of the section, s. 431 is directed to quia timet proceedings. I have to say that the drafting of s. 170EH is not completely transparent as to whether the object of that section was to deny to the court the power to make an order having the effect or requiring the employment relationship to be continued, or to make orders ancillary to that question, such as that sought in the present case, namely, requiring the employer not to fill the position made vacant by the termination the subject of the application.

should also refer to section 419 which says:

The Court his power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. While it was not submitted by counsel for the respondent that the court did not have the power to make the interlocutory order sought in each application, and it was no part of the respondent's case to embrace the views that I expressed in the course of argument concerning the absence of those powers, my conclusion is that the only effect I can sensibly give to s. 170EH is to read it as denying to this court power to make interlocutory order as sought in these proceedings. The matter is elliptical but the provisions of the Act to which I have referred indicate to me a statutory intention not to permit

7 interlocutory orders requiring the continuance of employment pending the determination of the question of whether there has been a contravention of Subdivision B.

Such a view seems to me to be consistent with long­standing policy and with the reluctance of courts to issue injunctions in the area of the performance of personal services. I am aware that the question of the interlocutory relief sought in the present case might impact on the rights of persons not parties to these proceedings, including the employees of the respondent other than the applicants.

I have been referred to A/asian Meat Industry Employees' Union v. Sunland Enterprises Pty Ltd (trading as Sunland Wholesale Meats) (1988) 25 I.R. 137, a decision by Gray J, in which the employer failed in a submission that there ought to be no reinstatement because the employer had filled the position the subject of the application. It seems clear that, where an employer has notice of an application such as is presently made, he cannot improve his position by deliberately filling the position the subject of the application. That factor, however, does not suggest to me that it is proper to keep the position open until the principal proceedings are determined.

My conclusion is that the court lacks the power to make the orders Sought by way of interlocutory relief in the principal proceeding. However, if I am wrong in that, it seems to me that this is a case where I ought not make the interlocutory orders sought. Mr Loakes says that he was employed as the management

8 adviser with the Ray Drinkwater Group of Companies in a full-time capacity. His affidavit continues:

From my understanding of those people currently employed by the Respondent and also by the Ray Drinkwater Group of Companies there is no one qualified to conduct training or alternatively to co-ordinate outside groups to conduct training. Further, there is no person employed by the Respondent or the Ray Drinkwater Group of Companies that will be able to fill my previous position. The position will need to be filled in order for the Respondent's business to function satisfactorily. In view of this I believe that there is a real likelihood that the Respondent will need to employ a person to fill my position in order for the company to fulfil training requirements and the implementation of various management systems. " Mr Tognolini deposes that in respect of his position as manager of Burnett Petroleum Distributors Pty Ltd, Bundaberg Depot, there was similarly no one able to fill his position and his understanding is that there is a real likelihood that his former position will be filled and that the respondent is in his case in the process of re-employing a new manager.

Both interlocutory applications seek to prevent the employment of any person, either temporarily or permanently, in the position formerly occupied by each applicant. Even if the interlocutory applications sought simply to require the employee not to fill those positions on a permanent basis, it seems to me that, as a matter of the balance of convenience, I ought not to grant the interlocutory orders sought.

9

It is necessary for each position to be filled and it seems consistent with the judgment of Gray J, that that circumstance ought not prejudice the reinstatement applications by each applicant. I therefore decline to make any interlocutory order.

It is also necessary in this application to have regard to the pendent jurisdiction of the court, having regard to the common law claims which are associated with the principal claim for relief for reinstatement under the Act. Section 430 provides: " (i) So far as the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked. (2) The jurisdiction conferred by subsection (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a matter that is associated with a matter in respect of which an appeal from that judgment, or another judgment of that court, is brought. A further question concerns the operation of s. 170EB. There are two aspects to this question. The first concerns a serious problem in Queensland of whether there is "an adequate alternative remedy... under existing machinery, that satisfies the 'requirements of the Termination of Employment Convention", pursuant to the powers conferred on the (Queensland) Industrial Conciliation and Arbitration Commission. That is a matter of some importance. It is exacerbated in the present case by the application for common law relief made in conjunction with the application for reinstatement under s. 170EE. It was suggested

10 that this court has power, in respect of those common law claims, by virtue of s. 430 of the Act which has been set out earlier.

It seems to me that the most efficient way of disposing of that question, is to direct that each party make written submissions concerning its contentions about the existence of an adequate alternative remedy as specified in s. 170EB; I will adjourn that aspect of the matter for determination by 9 June 1994.

I direct that each respondent file its submissions concerning the application of s. 170EB by Friday 20 May, and that each applicant file its submissions concerning that question by Friday 27 May. I adjourn the matter to 9.30 a.m. on 9 June 1994.

I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Spender. Associate· Date: 5 May 1994 Counsel for each applicant :Mr J. E. Murdoch Solicitors for each applicant :Bruce Dulley Counsel for each respondent :Mar G. C. Martin Solicitors for each respondent :Feez Ruthning Date of Hearing :5 May 1994