Compensation granted after old job ‘knocked back’

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Compensation granted after old job ‘knocked back’

An employee who was awarded reinstatement, has successfully obtained compensation at a review hearing (which was initiated by the Court itself) after he had refused to return to work with the employer.

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An employee who was awarded reinstatement, has successfully obtained compensation at a review hearing (which was initiated by the Court itself) after he had refused to return to work with the employer.

The employer dismissed the employee from his employment as a casual security guard in February 1996. The employee then successfully brought proceedings in the Industrial Relations Court of Australia, where the Judicial Registrar ordered the employer to reinstate the employee as well as ordering back pay.

The following day, the employee notified the employer that he did not want to work for the employer.

Later that year the Judicial Registrar heard the matter once again where an order was made requiring the employer to pay the employee outstanding pay in the amount of $14,724.69.

The employer sought leave to review the Judicial Registrar’s decision to award outstanding pay. Moore J dismissed the employer’s application.

The Court on its own motion, however, decided to review the Judicial Registrar’s decision to order back pay. Furthermore, the Court also decided to determine whether the Court should award the employee compensation in light of the fact that the Judicial Registrar had earlier found that the dismissal was in breach of the Act. In doing so, his Honour approached the matter on the basis that the Judicial Registrar had not ordered reinstatement:

"I followed that course because the considerations arising under s170EE(3) (the power to award compensation) are different to those arising under s170EE(1) (the power to award reinstatement or re-employment)."

The Court then reviewed the evidence of the employee’s attempts to find employment following the dismissal:

"Nonetheless the evidence as to attempts made by him to obtain other employment since the termination is limited and, in my view, it can be inferred from the scant nature of the evidence that the pursuit of other employment has not been pursued as vigorously as might be expected."

The employer also submitted that the Court should take account of the employee’s refusal to accept the reinstatement order:

"While that view may be taken of the refusal I must also bear in mind the reasons proffered on his behalf by the Union, namely the circumstances of the termination as I apprehend it, and the view the [employee] then had about the [employer] and the way in which the [employer] had treated him."

Justice Moore consequently held:

"Nonetheless the [employee] has been unemployed since his termination and I am satisfied that regard has to be paid to the considerable financial loss he has suffered as a result of the termination though some allowance, as I earlier indicated, should be paid to the fact that he has not in my view as vigorously sought further employment as might be expected in the circumstances."

His Honour proceeded to award the employee $12,000 (Saitanis v Penrith City Night Patrol & Ors, Dec No 656/96).

[Note that this decision will continue to be pertinent in relation to applications under the new federal ‘harsh, unjust or unreasonable’ laws because those laws, in effect, reproduce the sections discussed above by Moore J.]

 
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