Notification under section 130 by Construction, Forestry, Mining and Energy Union (New South Wales Branch) of a dispute with Pasminco Broken Hill Mines re Dismissals [2002] NSWIRComm 300

Notification under section 130 by Construction, Forestry, Mining and Energy Union (New South Wales Branch) of a dispute with Pasminco Broken Hill Mines re Dismissals [2002] NSWIRComm 300

The dismissals of Mr O'Dwyer and Mr Hyde six days before the sale of the mine were unfair, as they were denied redundancy benefits promised to all other employees. The dismissal process lacked fairness given respondent's past flexible policy, the employees' reasonable expectation of redundancy, and the timing and procedure of the dismissals. The Commission has power to order reinstatement notwithstanding s137(3), as reinstitution of employment is not fictitious and ensuing redundancy benefits are not excluded by that section. It is appropriate to order reinstatement up to the date of the mine sale, making the employees eligible for redundancy, allowing set-off for workers' compensation...

Jurisdiction
Australia
Judgment Date
21 November 2002
Procedural Posture
Industrial Dispute / Arbitration Following Attempted Conciliation Under S130 Industrial Relations Act 1996
Outcome
Dispute order for reinstatement; employees to be treated as employed until the mine sale completion date, making them eligible for redundancy; set-off for workers' compensation overpayment applies.
Legal Topics
['redundancy' 'termination of Employment' "workers' Compensation" 'jurisdiction of Industrial Commission' 'reinstatement' 'industrial Equity']
['industrial Law' 'employment Law'] ['redundancy' 'termination of Employment' "workers' Compensation" 'jurisdiction of Industrial Commission' 'reinstatement' 'industrial Equity']

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Procedural Posture

Industrial Dispute / Arbitration Following Attempted Conciliation Under S130 Industrial Relations Act 1996

Legal Issues

  1. 1 ['Whether dismissal of injured employees prior to sale of mine unjustly deprived them of redundancy benefits' 'Whether the Industrial Relations Commission has power to order reinstatement in these circumstances, given s137(3) of the Act' 'Whether total and permanent incapacity benefit may be set off against redundancy' "Whether overpayment of workers' compensation should be accounted for"]

Ratio Decidendi

The dismissals of Mr O'Dwyer and Mr Hyde six days before the sale of the mine were unfair, as they were denied redundancy benefits promised to all other employees. The dismissal process lacked fairness given respondent's past flexible policy, the employees' reasonable expectation of redundancy, and the timing and procedure of the dismissals. The Commission has power to order reinstatement notwithstanding s137(3), as reinstitution of employment is not fictitious and ensuing redundancy benefits are not excluded by that section. It is appropriate to order reinstatement up to the date of the mine sale, making the employees eligible for redundancy, allowing set-off for workers' compensation...

Court Disposition

Dispute order for reinstatement; employees to be treated as employed until the mine sale completion date, making them eligible for redundancy; set-off for workers' compensation overpayment applies.

Orders

  • ["1) Pasminco Broken Hill Mine (Administrator Appointed) shall reinstate Mr John O'Dwyer and Mr Trevor Hyde to the positions they held at the time they were dismissed on 24 May 2002." '2) The employees shall remain employed until midnight, 31 May 2002.' "3) Any benefits or remuneration received during the employees'...