2016 WAIRC 00859

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION:2016 WAIRC 00859

CORAM / :Commissioner D J Matthews
HEARD / : / Friday, 28 October 2016

DELIVERED:Tuesday, 1 November 2016

FILE NO.:U 113 OF 2016

BETWEEN / : / Carlo Elio Grossetti

Applicant

AND

City of Wanneroo (ABN 64 295 981 165)

Respondent

CatchWords:Unfair dismissal claim - interim order sought - application dismissed

Legislation:Industrial Relations Act 1979

Result:Application for interim order dismissed

Representation:

2016 WAIRC 00859

Applicant:In person

Respondent:Mr W Keane (of counsel)

Reasons for Decision

1The applicant was dismissed from the position he held with the respondent, Manager, Community Safety and Emergency Management, on 16 June 2016.

2The applicant has brought two claims, one alleging unfair dismissal and the other denied contractual benefits.

3The applicant by application filed 20 October 2016 seeks that the Commission make an interim order in this matter, his unfair dismissal claim.

4The applicant seeks that I order that another position within the respondent’s organisation, the position of Manager, Health and Compliance, not be filled until his unfair dismissal claim is decided.

5As I say the position is not the position the applicant held.

6The relevant background to the application for an interim order is that the person who previously held the position Manager, Health and Compliance, has been substantively appointed to the position held by the applicant prior to his dismissal. The respondent is now going through a process to fill the position of Manager, Health and Compliance. Applications closed on 28 October 2016 and subject to any order I make it is intended that it will be filled in the medium term.

7The applicant states in his unfair dismissal claim that he seeks reinstatement to the position of Manager, Community Safety and Emergency Management, and he maintained that position at the hearing of the application for an interim order.

8The applicant says that if he is successful in his unfair dismissal claim, and consideration is given by me to the question of remedy, his position will be materially affected if the interim order he seeks is not made. His argument is this:

(1)The question of practicability is determinative of reinstatement;

(2)That his position has been substantively filled will impact on my consideration of the question of practicability;

(3)The question of what is to happen to the current holder of his former position will be relevant to my consideration of practicability;

(4)If the holder of his former position had “somewhere to go” in terms of his employment, if the applicant were reinstated, this would make it easier for me to order the applicant’s reinstatement;

(5)That is, the possibility of a return of the current holder of the applicant’s position to the holder’s previous position would be an option that might make it easier for me to order that he, the applicant, be reinstated to his former position;

(6)Or, looked at another way, if the current holder of the applicant’s former position cannot be returned to his former position, because it has been filled by the process currently on foot, it will be all the harder for me to order reinstatement.

9Basically the applicant is concerned that, if his position has been substantively filled and the former position of the current holder is now substantively filled, the respondent will, if the applicant’s unfair dismissal claim succeeds, be able to say “check mate” to me in relation to an order for the applicant’s reinstatement.

10I reject the applicant’s argument and do not propose to make the order sought.

11As I explained at the hearing, and repeat here, a respondent cannot say “check mate” to me in relation to the matter of reinstatement simply because a successful applicant’s position has been filled since the applicant was dismissed. The filling of the position may be a relevant consideration but it will not present me with a fait accompli in relation to the matter of reinstatement. If this was the case the remedy of reinstatement would be all too easily closed off, a position that would be entirely inconsistent with it being the primary remedy for unfair dismissal.

12In any event, the applicant’s former position has already been substantively filled. If I considered that ruled out reinstatement, if the issue became relevant, the damage has already been done. If I considered that reinstatement should be ordered despite the position being substantively filled it goes without saying that would cause difficulties for the respondent. The respondent would have to deal with those difficulties when and if they arose. It is not my role at this stage to force the respondent to leave options open to potentially ameliorate those difficulties.

13Finally, I find that, even if the order the applicant seeks was made, this would not necessarily leave open an option to the respondent in the way the applicant thinks it might. Just because the position of Manager, Health and Compliance, was left open would not mean that the former holder of that position (the current holder of the applicant’s position) would volunteer to return to it to make the respondent’s situation easier or that the respondent would want that person to return to his former position as the solution to dealing with the difficulties arising from an order for reinstatement if one were made.

14In short, the order sought is too remote, both factually and legally, from the matter the applicant seeks be addressed or affected by it.

15I note that the respondent argued that I do not have jurisdiction to make the order sought. The respondent put forward some thought provoking submissions in support of that position

16As I do not propose to make an order I do not need to consider the argument. If I had proposed to make an order I would have had to deal with it, of course, but as I do not propose to make an order I will restrain myself from making any comment in relation to it. I am conscious that it is an important issue and I consider that not even obiter comment should be made about it in the absence of full argument from legal representatives for both sides, something I have not had the benefit of in these proceedings.

17The application is dismissed.