Warren & Australian Manufacturing Workers Union v Diamond Power Australia Pty Ltd [1996] IRCA 401

Warren & Australian Manufacturing Workers Union v Diamond Power Australia Pty Ltd [1996] IRCA 401

The Court was not satisfied that the termination resulted from operational requirements or a genuine redundancy. The respondent substituted termination for available Award stand-down procedures and acted in response to the union members' 6 December 1995 resolutions. The respondent also failed to prove that Mr Warren's role as shop steward was not part of the reason for selecting him for termination. The termination therefore contravened s170DE(1) and s170DF(1)(d), was harsh, unjust or unreasonable, and warranted reinstatement, continuity of employment and lost remuneration.

Jurisdiction
Australia
Judgment Date
23 August 1996
Procedural Posture
Application Pursuant to S170 EA of the Industrial Relations Act 1988 Alleging Unlawful Termination of Employment / Reasons for Decision and Minutes of Orders After Hearing; Matter Relisted for Final Orders on Amount of Lost Remuneration
Outcome
Application upheld; contraventions of s170DE(1) and s170DF(1)(d) found; reinstatement, continuity of employment and lost remuneration ordered, with amount to be calculated and relisted.
Legal Topics
['unlawful Termination' 'redundancy' 'operational Requirements' 'prohibited Reason' 'employee Representative Activities' 'harsh, Unjust or Unreasonable Termination' 'reinstatement' 'lost Remuneration']
['industrial Law' 'employment Law'] ['unlawful Termination' 'redundancy' 'operational Requirements' 'prohibited Reason' 'employee Representative Activities' 'harsh, Unjust or Unreasonable Termination' 'reinstatement' 'lost Remuneration']

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Procedural Posture

Application Pursuant to S170 EA of the Industrial Relations Act 1988 Alleging Unlawful Termination of Employment / Reasons for Decision and Minutes of Orders After Hearing; Matter Relisted for Final Orders on Amount of Lost Remuneration

Legal Issues

  1. 1 ["Whether Mr Warren's employment was terminated for a valid reason based on the operational requirements of the respondent." 'Whether the termination was harsh, unjust or unreasonable.' 'Whether a reason or part of the reason for termination was Mr Warren acting in the capacity of a representative of employees, contrary to s170DF(1)(d) of the Industrial Relations Act 1988.' 'Whether reinstatement, continuity of employment and lost remuneration should be ordered.']

Ratio Decidendi

The Court was not satisfied that the termination resulted from operational requirements or a genuine redundancy. The respondent substituted termination for available Award stand-down procedures and acted in response to the union members' 6 December 1995 resolutions. The respondent also failed to prove that Mr Warren's role as shop steward was not part of the reason for selecting him for termination. The termination therefore contravened s170DE(1) and s170DF(1)(d), was harsh, unjust or unreasonable, and warranted reinstatement, continuity of employment and lost remuneration.

Court Disposition

Application upheld; contraventions of s170DE(1) and s170DF(1)(d) found; reinstatement, continuity of employment and lost remuneration ordered, with amount to be calculated and relisted.

Orders

  • ['The applicant be reinstated to the position he held with the respondent at the date of the termination of employment.' 'The period between the date of the termination of the employment and the date of the reinstatement be recognised as continuous for all purposes.' 'The respondent pay to the applicant the...