John S. Parker and Austain Fasteners Pty Limited

[1994] IRCA 28

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 759 of 1994

B E T W E E N:                 Applicant             JOHN S. PARKER

AND:  
  Respondent         AUSTAIN FASTENERS PTY LIMITED

COURT:              MR J.A. RYAN, Judicial Registrar

PLACE:               MELBOURNE

DATE:                  MONDAY, 22 AUGUST 1994

TERMINATION PRIOR TO 30 MARCH 1994

JUDGMENT EX TEMPORE

JUDICIAL REGISTRAR:   It is not disputed that the employment of John Parker was terminated on 1 March 1994 and the applicant employee has indicated that in his own affidavit of 16 June in paragraphs 2C and 2E.

On 16 June, the applicant lodged an application under section 170EA of the Industrial Relations Act seeking an order declaring that the determination by the respondent of his employment contravened division 3 of Part VIA of the act. He was also seeking an order that the respondent pay compensation and also such other orders as would put him, the applicant, in the same position as as nearly as can be done as if the employment of the applicant by the respondent had not been terminated.

Section 170EA is contained in division 3 of Part VIA of the act. Division 3 commenced on 30 March 1994. Section 170EA (1) provides that a person may apply to the court for a remedy in respect of termination of his or her employment. In order to succeed the applicant must establish that there has been a termination for the purposes of section 170EA.

His Honour, Gray J, considered the construction of the word, "termination", in the as yet unreported case of Association of Professional Engineers, Scientists and Managers Australia and Neil Stephenson and Skilled Engineering Pty Limited, a decision of this court on 10th June 1994.  There were several cases.  One of them was VI 105 of 1994.

The applicant's dismissal falls within the first of the three categories of cases outlined by Gray J in the APESMA case at pages 5 and 6. This is a case in which the contract of employment is alleged to have come to an end whether by expiry of notice or otherwise prior to 30 March 1994. Gray J concluded that any act of an employer bringing an end to the employment which occurred prior to 30 March 1994 is not a termination for the purposes of section 170EA of the act.

No application under section 170EA can be made in respect of an act of an employer which brought the employment to an end prior to 30 March. Now, that is on the basis of what is stated by Gray J on page 28 of that decision.

Furthermore, the Chief Justice of this court in a case which has now been reported, Siagian v Sanel Pty Limited 122 ALR 333 at page 340, found as follows:

Section 170EE(1) provides that, after considering the merits of a Section 170EA application, the court may grant relief unless satisfied the termination of the employee's employment contravened no provision of the division (that is division 3).....as Mr Siagian's employment was terminated on 29 March the court must hold there was no contravention of the division".

In the case here employment terminated on 1 March.  In such circumstances the Chief Justice found that the court must hold that there is no contravention of the division.  Whatever the circumstances effected before the commencement of the division cannot amount to a contravention of it.  This is so, even if the termination was unlawful for some other reason.  Even if it constituted a breach of a contract, or a contravention of an award, it was not a contravention of division 3.

In the circumstances, either following the reasoning of Justice Gray in the APESMA case, or the reasoning of the Chief Justice in the case of Siagian v Sanel, I have to find, and I do find, that there is no jurisdiction through which this applicant can bring and pursue the claim and the application is dismissed.

I certify that this and the preceding two( ) page(s) are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :              
Date  :              31 August 1994
Appearances  :              
Applicant  :              In person
Counsel for the Respondent             :              P. O'Grady
Solicitor for the Respondent             :              Minter Ellison Morris Fletcher

Date of Hearing  :              22 August 1994

Judgment  :              22 August 1994