[2014] FWC 6413

The attached document replaces the document previously issued with the above code on 3 October 2014.

The references to the two decisions in paragraph [1] have been amended.

Bronwyn Brown

Associate to DEPUTY PRESIDENT LAWRENCE

Dated: 7 October 2014

Fair Work Act 2009
s.394—Unfair dismissal

Michael King
v
Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta
(U2013/6381)

Application for unfair dismissal remedy.

Introduction

[1] This decision deals with the issue remitted to me by the Full Bench in its Decision of 10 April 2014 [2014] FWCFB 2194. The Full Bench considered an appeal by the original applicant Mr Michael King (the Applicant) against my decision at first instance of 20 November 2013 [2013] FWC 8914. The Catholic Education Office Diocese of Parramatta (the Respondent) also cross appealed.

[2] The Applicant’s application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged on 6 February 2013.

[3] The matter was argued before me for five days in September/October 2013, concluding on 11 October 2013. The Applicant was represented by Mr J. Phillips, Senior Counsel and the Respondent by Mr P. Moorhouse, Counsel.

[4] In my decision I found that there was a valid reason for the Applicant’s dismissal because he had “wilfully disobeyed a clear direction from the employer not to transport students in his own car to surf lifesaving activities”.(paragraph [51]) I found that even though the activities took place in the Applicant’s own time there was a relevant connection to the school and the interests of the Respondent.

[5] However, I found that, notwithstanding there was a valid reason, the dismissal was harsh, unjust and unreasonable because:

● The Applicant was not adequately notified of the reason for his termination before the decision was taken to dismiss. (paragraph [71])

● The Applicant had no real opportunity to respond. (paragraph [73])

● The Respondent did not adequately take into account the Applicant’s 37 years service. (paragraphs [80] - [81])

● The Respondent’s decision was influenced by the public and media attention on the church with respect to child protection issues and the unsubstantiated allegations against the Applicant.

[6] I decided that reinstatement was not appropriate. Essentially that was because of the loss of trust and confidence of the Respondent in the Applicant. I awarded $41,816 in compensation.

The Appeal Decision

[7] I will summarise the key aspects of the Full Bench Decision.

[8] The Full Bench upheld my decision that the direction to the Applicant not to transport students in his own time and car to and from lifesaving activities, was lawful. They agreed therefore that there was a valid reason for the dismissal. (paragraphs [36] and [37])

[9] My decision to refuse reinstatement was also upheld. The Full Bench agreed that the loss of trust and confidence by the employer rendered reinstatement inappropriate. (paragraph [43])

[10] Crucially, the Full Bench found that I had erred in not giving consideration to the propositions that the Applicant be reinstated to another school in the Diocese or to the Diocese’s head office. The relevant findings are set out below:

“[44] The final point made by Mr King was that the Deputy President erred in not giving consideration to the alternative propositions that he be reinstated to another school in the Diocese or to the Diocese’s head office. We accept this submission in part. Insofar as the Deputy President accepted that there was a loss of trust and confidence based upon a lack of confidence that Mr King would follow directions to maintain appropriate boundaries with students, we consider that to be a conclusion which necessarily applied to reinstatement to any teaching position in the Diocese, not just a teaching position at the College. The Deputy President’s statement in paragraph [95] of the Decision that he considered such trust and confidence to be “crucial in [the] school/teacher/student relationship” makes that clear. However, to the extent that Mr King raised as an alternative the possibility of being reinstated to another position in the Head Office or elsewhere in the Diocese that was not a teaching position and did not involve unsupervised interaction with students, it is apparent that that alternative was neither expressly nor implicitly considered by the Deputy President in the Decision. There was some evidence that a number of such positions existed. The Deputy President’s reliance upon the Diocese’s lack of confidence in Mr King’s capacity or willingness to maintain appropriate boundaries with students as preventing reinstatement could not have been of significance or relevance to that potential alternative. In failing to consider and determine that aspect of Mr King’s case, the Deputy President fell into error.

[45] That error was one of significance, in that it caused Mr King an injustice by denying him the possibility of obtaining what would have been for him a preferred and highly beneficial outcome. We consider therefore that permission to appeal should be granted in the public interest under s.400(1) of the Act. We uphold Mr King’s appeal in this respect. We will order that this aspect of the matter be referred back to the Deputy President for consideration and determination. We will do so on the basis that if the Deputy President determines that an order for reinstatement should be made on the alternative basis identified (with or without any ancillary compensation and/or continuity orders under s.391), then it will be necessary for him to revoke the Order under s.603 of the Act; but that if the Deputy President determines to refuse reinstatement, then the Order shall remain in effect as the outcome of Mr King’s unfair dismissal application.”

[11] The Full Bench dismissed the Respondent’s cross appeal. It held that my decision that the dismissal was harsh, unjust or unreasonable was reasonably available to me.

[12] The Full Bench’s Order was as follows:

“Orders

[58] In relation to Mr King’s appeal, we order as follows under s.607(3) of the Act:

(1) Permission to appeal is granted.

(2) The appeal is upheld in respect of that part of the Decision concerning the determination of the appropriate remedy.

(3) The matter is referred back to Deputy President Lawrence for him to consider and determine whether an order may be made under s.392 of the Act reinstating Mr King to a position in the Diocese’s Head Office or elsewhere in the Diocese which is not a teaching position and does not involve unsupervised interaction with students, and, if such an order is made, whether any ancillary compensation and continuity orders should also be made under s.392.

(4) The Deputy President shall proceed on the basis of the existing evidence and such further evidence as he may decide to admit.

(5) If the Deputy President decides to make an order for reinstatement under s.392, then he shall revoke the Order under s.603 of the Act; but if the Deputy President decides not to make such an order, then the Order shall remain in effect as the outcome of Mr King’s unfair dismissal application.”

Proceedings after Appeal Decision

[13] I conducted a telephone conference of the parties on 17 April 2014 to discuss the future conduct of the matter in view of the Full Bench Decision. The matter was adjourned to allow discussions between the parties.

[14] Directions were issued as follows:

“DIRECTIONS

1. The Catholic Education Diocese of Parramatta is to investigate options to comply with the Order of the Full Bench in the Appeal decision [2014] FWCFB 2194 by COB Friday, 2 May 2014.

2. The parties are to meet to explore the possibility of settlement by COB Friday, 9 May 2014.

3. The parties will advise the Commission of the result of their discussions by COB Friday, 16 May. This advice will cover whether there is any agreement, whether conciliation by a member of the Commission is requested, or whether the matter will proceed to hearing. Any notices to produce documents should be lodged by Friday, 16 May 2014.

4. In the event of the matter proceeding to hearing, the parties will file and serve any submission/evidence they seek to rely upon by COB Friday, 23 May 2014.”

[15] The matter was set down for hearing on 30 May 2014.

[16] At the request of the Applicant, the hearing was postponed to allow investigations and discussions to continue.

[17] Ultimately, as a result of a further programming telephone conference on 29 May, it became apparent that discussions had not produced agreement on an alternative position and the matter was set down for hearing.

[18] At the 19 August hearing Mr J. Pearce of Counsel represented the Applicant and Mr P. Moorhouse of Counsel represented the Respondent.

[19] The Applicant relied on oral evidence and submissions and:

● witness statement of the Applicant’s dated 4 August 2014;

● written submissions.

[20] The Respondent relied on oral evidence and submissions and:

● written submissions filed on 6 August 2014;

● witness statement of Carol Hendricks, Team Leader, Staff Services Union, Catholic Education Office Diocese of Parramatta;

● witness statement of Suzanne Walsh, Director of System Learning, Catholic Education Office Diocese of Parramatta.

The Correct Legal Entity which was Employer

[21] One aspect which I need to clarify is the legal entity which was the employer of the Applicant. This was not a matter which was argued or in contest before me in the original proceedings or, it would seem, before the Full Bench.

[22] However, the nature of the Full Bench’s Order means that the matter needs to be considered in more detail.

[23] The original F2 form lodged by the Applicant described the employer as “Catholic Education Office Diocese of Parramatta trading as Catholic Education Office”.

[24] The F3 form lodged by the Respondent described the employer as “Trustees of the Roman Catholic Church for the Diocese of Parramatta trading as Catholic Education, Diocese of Parramatta”.

[25] It is now agreed by the parties, and I accept, that the F3 description is correct.

[26] The Commission’s file and notices of listing reflect the description used by the Applicant. In the proceedings, including documents tendered for the 19 August hearing, the terms “Catholic Education Office” and “Catholic Education” are used interchangeably.

[27] In my 20 November 2013 decision I described the employer as “the Diocese”. (paragraph [11])

[28] The Full Bench described the employer as the “Catholic Education Diocese of Parramatta (the Diocese)”. (paragraph [1])

[29] The Catholic Education Office is an administrative/operational entity established by the Trustees for the purpose of conducting its educational activities, including the employment of teachers. For practical purposes, the Catholic Education Office/Catholic Education whichever term is used, was the employer. The Respondent’s position is that “the practical and real position is that the Catholic Education Office acts for all purposes as the employer”. (Mr Moorehouse, Transcript PN[3548])

[30] It seems clear that the Full Bench’s Order was intended to relate to positions within the control of the Catholic Education Office. However, given the technically broader legal entity of the employer, it may be that there are other positions employed by the Trustees, within the Diocese, but outside the Catholic Education Office’s area of responsibility which could be considered, consistent with the Full Bench’s Order. I will discuss whether this is a theoretical rather than a practical issue below.

Legislative Provisions

[31] The relevant legislative provisions dealing with unfair dismissal were set out in full and discussed in my original decision and the Appeal Decision. They do not need be repeated.

[32] However, it is appropriate to set out the relevant section dealing with reinstatement in full.

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

Applicant’s Submissions

[33] The Applicant submits that the Full Bench remitted the matter to me to consider reinstatement to an alternative position within the Trustee’s employment at the Catholic Education Office, Head Office or elsewhere in the Diocese that was not a teaching position. It accepted that the position cannot involve unsupervised interaction with students.

[34] The Applicant submits that the Commission should take a broad and practical approach. The fact that there is not a job vacancy is “simply one factor to be taken into account” Rio Tinto Coal Australia Pty Ltd v Smith and others (PR957290 at [19]) (Rio Tinto).

[35] The Applicant’s statement Exhibit A1, summarised the steps he had taken to search for positions within the Diocese that were consistent with the Full Bench’s Decision. He stated he was willing to perform any work that falls within the orders and undertake any necessary training. The discussions and correspondence between the parties has been extensive and is attached to his statement. The Applicant himself has been searching online, on a daily basis, for relevant positions.

[36] In July the Applicant applied for two vacant positions working with Catholic Care Social Services, Diocese of Parramatta in the position of Disability Work - Community Service Worker and House Co-ordinator. The Applicant understood that the Respondent’s response to these applications was that they did not fall within the Full Bench’s Orders because they were not within the Catholic Education Office. (paragraph [15])

[37] The Applicant concedes that finding “suitable available positions that do not involve teaching and that do not involve unsupervised interaction with students” given his 37 year commitment to teaching, presents some challenges. However, he expresses enthusiasm for a new role within the Diocese. (paragraphs [17] and [18])

[38] The Applicant’s commitment to the Catholic Church and to continuing to work for the Diocese is clear. In correspondence to the Respondent, on 30 April, the Applicant’s lawyers nominated a range of key personnel in various positions within the Diocese who could be consulted about possible positions.

[39] The Applicant submits that s.391(1A) requires the Catholic Education Office to investigate options within the Diocese, including any other associated entity. Exhibit A2 and A3 were recent advertisements/job descriptions within the Diocese. Some of them appeared suitable to the Applicant’s skills and experience, for example Volunteer Co-ordinator at St. John of God Hospital, Richmond. Others less so, such as Domestic Laundry and Ironing Services.

[40] The Applicant testified that he had not had paid employment since the dismissal (PN[3593])

Respondent’s Submissions

[41] The Respondent submits that there is no suitable position presently available for the Applicant consistent with the Full Bench’s Order and that reinstatement consistent with the order is inappropriate.

[42] The Full Bench’s Order should be taken as a reference to positions within the Catholic Education Office Parramatta. It is not appropriate to order reinstatement to a position in the Diocese outside the Catholic Education Office. The Catholic Education Office acts as the employer for all practical purposes and is an autonomous unit. The only evidence, at first instance, related to non-teaching positions within the Catholic Education Office Parramatta Head Office. The evidence does not disclose any position within the Diocese, but outside the Catholic Education Office, that would be suitable for the Applicant. All positions in schools involve unsupervised contact with children.

[43] Ms Hendricks’ statement listed positions within the Catholic Education Office Parramatta vacant as at 5 August 2014. It is submitted that none of these positions is suitable for the Applicant or if they are, they are not consistent with Order 3. (paragraph [15] and Attachment F) Administrative staff are paid less than the salary received by the Applicant.

[44] In the event reinstatement was ordered, the Respondent opposes orders for lost wages and continuity of service.

[45] The responses from the contacts within the Diocese identified by the Applicant did not disclose any position suitable to the Applicant (Exhibit R2, paragraph [19]). Attachment J to Exhibit R2 contains the correspondence from the Respondent to them.

[46] The Respondent’s letter to the Applicant’s solicitor dated 2 May 2014, (Attachment F to Exhibit R2) summarised available positions within the Catholic Education Office and the reasons why they were not suitable for the Applicant. It attaches flow charts of all positions. There are many of them. Some, such as financial roles would clearly not be suitable to the Applicant, others in the “educational policy” area would appear to be suitable and within the Full Bench’s Order but there are no vacancies.

[47] Ms Walsh’s statement (Exhibit R1) deals with her area of responsibility - teaching and the professional development of teachers within the Diocese. One “Team Leader, Learning Frameworks” position is likely to come up in early 2015. Ms Walsh asserts that the Applicant does not have the skills or experience to fill that position. Its salary is in the $130,000/$140,000 range. Other positions are either not vacant or would involve some unsupervised contact with students. Clerical and administrative roles are not at the Applicant’s salary level.

[48] In cross-examination Ms Walsh testified as to the possible availability of two team leader positions. (PN[3701] - [3715]) These were in schools with some contact with children. The “professional learning team” appeared to comply with the Full Bench’s Order (PN[3750] - [3762]) and a teaching background was common. Similarly those in the “leadership program” appeared to comply. These are programs run at Head Office. However, Ms Walsh asserted that the Applicant did not have sufficient leadership experience as, for example, a principal. (PN[3790 - [3791])

Consideration

[49] In my original decision I decided not to reinstate the Applicant. I came to this decision exercising the discretion given to the Commission pursuant to s.390(3). I came to the judgment that reinstatement was inappropriate but that payment of compensation was appropriate. I will not repeat the reasons that I gave, which I believe are still valid.

[50] However, as the Full Bench said I did not give consideration to reinstatement to an alternative non-teaching position. This possibility was raised by counsel for the Applicant as an alternative possible course of action at the end of his submissions. There was no substantial evidence about it.

[51] The Full Bench Decision requires me to again exercise the Commission’s discretion pursuant to s.390(3) but constrained by the terms of the Full Bench’s Order. Because of the exact legal personality of the employer, which I have dealt with above, there was some debate about the reach of the Order. There was ultimately no contest however, that any position in schools, whether teaching or non-teaching, was excluded from consideration, because of the possibility that it would involve unsupervised interaction with students.

[52] I am of the view that the intent of the Full Bench’s Order was for me to give consideration to the appropriateness of reinstatement in the broadest practical sense consistent with the Order. I have therefore given consideration to positions within the Diocese but, outside the responsibility of the Catholic Education Office. Of course, this requires balancing the particular circumstances relating to these positions within the overall judgment as to appropriateness.

[53] As the Applicant himself concedes, reinstatement is difficult because I am unable to consider those positions to which his 37 years experience and skills make him suitable - teaching and any role that involves unsupervised contact with students. The Applicant saw teaching as a vocation. I accept, however, that he is committed to the Church and its activities in the broadest sense. He has had experience in a range of educational, church and community roles. I do not doubt that he wants to continue to contribute to the Diocese.

[54] The issue is whether I consider it appropriate to reinstate the Applicant to another position on terms and conditions no less favourable than those in which he was employed immediately before the dismissal. Of course, the position must be consistent with the Full Bench Order.

[55] The terminology in industrial legislation has changed but the test has remained essentially the same. In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. The Full Bench of the Industrial Relations Court (the IR Court) dealt with the test of “impracticality”. It took the view that it involved a discretionary weighing of all relevant factors. The IR Court emphasised that each case must be decided on its merits (page 191). The same approach was taken by the Full Bench in Regional Express Holdings Ltd v Richards (2010) 206 IR17 in dealing with the Fair Work Act. In Lambley v DP World Sydney Ltd [2012] FWA 1250 Deputy President Sams accepted that “impracticality” found in earlier statutes is interchangeable with “inappropriateness” under the Fair Work Act (paragraph [162]).

[56] The unavailability of a position or the fact that it has been filled is not of itself fatal to an application but it is a relevant factor.

[57] The Full Bench in Rio Tinto stated:

“[19] In our view, the proposition that the relevant employees would be surplus to requirements, and the possible consequences of reinstatement in such circumstances, is highly relevant to a consideration of the appropriateness of reinstatement as a remedy and is a matter to which the Commission is obliged to have regard. Whilst the unavailability of a job vacancy does not, of itself or on its own provide the basis for refusing to order reinstatement, it is plainly a relevant consideration, amongst others, in determining whether reinstatement is appropriate. As noted in the Full Bench decision in Smith and Kimball v Moore Paragon Australia Ltd:

"It will often, if not typically, be the case that the position occupied by an applicant for relief under s.170CE of the Act will, at the time the application is arbitrated, either no longer exist or no longer be vacant. In our view that bare fact would rarely, on its own, justify a conclusion that an order for reinstatement was not `appropriate'. To adopt such an approach would tend to defeat the remedial purpose of the legislation. The unavailability of a job vacancy is simply one factor to be taken into account in deciding whether or not an order for reinstatement is appropriate."[emphasis added]

[58] Some reliance was placed by Counsel for the Applicant on cases relating to redeployment in a redundancy situation. I find this argument of limited use.

[59] The Full Bench in Technical and Further Education Commission T/A TAFE NSW v L. Pykett [2014] FWCFB 714 (Pykett) dealt with the redeployment issue and the nature of the reinstatement order. It held:

“[34] Honeysett is authority for the proposition that for the purpose of s.389(2)(b) it is sufficient if the Commission identifies a suitable job or position to which the dismissed employee could be redeployed. The Commission must then determine whether such a redeployment was reasonable in all the circumstances. We note that given the factual context the Full Bench in Honeysett did not need to consider whether s.389(2) may be satisfied if the dismissed employee could be redeployed to perform other work within the employer’s enterprise (or that of an associated entity.) Given its particular factual circumstances Honeysett is not authority for the proposition that it is always necessary to identify a particular job or position to which the dismissed employee could have been redeployed.

[35] As we have mentioned, the use of the past tense in the expression ‘would have been reasonable in all the circumstances for the person to be redeployed ...’ in section 389 (2)(a) directs attention to the circumstances which pertained when the person was dismissed. As noted in Honeysett, [T]’he exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances’. The question is whether redeployment within the employer’s enterprise or an associated entity would have been reasonable at the time of dismissal. In answering that question the Full Bench in Honeysett observed that a number of matters are capable of being relevant:

‘They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered’.

[36] We have earlier set out the submissions of the appellant and the respondent as to the proper construction of s.389(2) (see paragraphs [15] to [18] above). We accept the respondent’s submissions. For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer.”

[60] The reinstatement order in Pykett identified a position and specified that the terms and conditions must be no less favourable than those on which the Applicant was employed immediately before the dismissal. The Full Bench dismissed the challenge to the nature of the Order. It stated:

“[45] We accept the first proposition. The Commission’s power to order reinstatement is to be found in s.390(1) and s.391(1) is a limitation upon that power, rather than an independent source of power. But we reject the suggestion that the Commissioner’s reference to s.391(1)(a) in the preamble to her order (rather than to s.390(1)) constitutes an error warranting correction on appeal. The reasons under challenge must be read as whole and considered fairly. An error is not to be found merely in looseness of language or infelicity of expression.

[46] We reject each of the other propositions advanced in support of the appellant’s contention. The order made did not divest the Commission of its responsibility to ensure that the position to which Ms Pykett was to be appointed was ‘on terms and conditions no less favourable’ than those on which she was employed immediately before the dismissal. To the contrary, the order clearly stated that this was to be so and the employer is obliged to comply with that order.

[47] The nature and scope of a reinstatement order was considered by the Full Court of the Industrial Relations Court in Anthony Smith & Associates Pty Limited v Sinclair (Sinclair). In Sinclair the Court held:

‘... s 170EE(1)(a)(ii) of the Act ... empowers the Court to require the employer to reinstate the employee by appointing him or her ‘to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination’. This might be a specific position, the availability and suitability of which is revealed by the evidence. On other occasions, the Court will not specify a particular position. Provided that the Court is satisfied that reinstatement is practicable and appropriate, it is open to the Court to make an order in terms of par (a)(ii), leaving it to the employer to choose the position and to comply with the Court’s order to provide terms and conditions that are no less favourable than those on which the employee was employed immediately before the termination. If this course is taken, the employer may select an existing position, or he or she may create a new position for the purpose. If the latter, contrary to the submission of counsel for the employer, it will not be to the point that, in the absence of the order, the employer might not have created the position... an order for reinstatement can be made requiring the employer to appoint the applicant to another position. The Court can them impose the condition that the terms and conditions of employment will be no less favourable than those engaged by the respondent immediately prior to his termination.’

. . .

[50] The appellant submits that under s.170EE (unlike ss.390 and 391) the power to order reinstatement was dependent on positive findings by the Court that such an order was ‘appropriate in all the circumstances’ and that reinstatement was ‘practicable’. The appellant contends that s.391(1) of the FW Act is quite different. It requires that an order for a person's reinstatement "must be an order that" meets the stated criteria, that is, the FW Act mandates, in a way that the IR Act did not, that the appointment of the person is actually on terms and conditions no less favourable. It is submitted that Sinclair is no longer good law because the current provisions require the Commission to ensure that any reinstatement order made actually falls within the limitations of s391, in contrast with previous provisions that did not impose a comparable express requirement.

[51] We are not persuaded that there is any relevant distinction between s.170EE of the IR Act and sections 390 and 391 of the FW Act. Under both provisions an order for a remedy was discretionary and only two types of reinstatement orders could be made: reappointment to the former position or appointment to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal. The fact that s.391(1) provides that a reinstatement order must be an order of the type specified does nothing more than describe the orders capable of being made by the Commission. The effect of the provision is indistinguishable from the earlier provision.

. . .

[53] It follows from the foregoing that Sinclair remains apposite. Accordingly, it was open to the Commissioner not to specify a particular position and to leave it to the employer to choose the position and to comply with the order to provide terms and conditions that are no less favourable than those on which the applicant was employed immediately before her dismissal.”

[61] The Full Bench in Pykett commented on the evidentiary difficulties in a redeployment case where the facts “will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee” (paragraph [36]). I expanded upon this difficulty in my decision in Teterin v Resource Pacific Pty Limited ([2014] FWC 1578) (Teterin) especially in dealing with the displacement of contractors (see especially paragraphs [111] - [115]).

[62] This difficulty is increased when dealing with an application for reinstatement pursuant to s.391(1)(b). A position which is appropriate/practical needs to be identified. Evidence as to an employer’s broad operations will be limited and it may not be appropriate for the Commission to take on a role which is so interventionist without very clear and persuasive evidence. I cannot find that there is such evidence in this case.

[63] Notwithstanding my view that positions within the Diocese, but outside the control of the Catholic Education Office should be considered, I do not think it appropriate to order reinstatement to any such positions because:

● The Catholic Education Office acts as the employer for practical purposes. There was no proper evidence about the operation of Diocese outside the Catholic Education Office and no involvement in the case. I am unable therefore to make a proper judgment as to appropriateness.

● It is not appropriate to reinstate to an operational identity in respect of which there is no financial/administrative evidence.

● Positions that were identified as possibly available appear to be either casual, fixed term and at a lower salary level than that upon which I would be able to reinstate.

[64] This leaves for consideration possible positions within the Catholic Education Office Head Office. I find that there is insufficient evidence to support reinstatement to an appropriate position in this area because:

● The evidence of Ms Hendricks and Ms Walsh described in detail the positions within the Catholic Education Office. There are about 32 staff employed in Head Office. I accept it as a reasonable attempt to canvas the options for reinstatement.

● The evidence supports a conclusion that there are no vacancies in areas of educational policy and professional development in positions that appear to be most appropriate for the Applicant.

● Other positions in leadership roles appear to have experience requirements that make them inappropriate for the Applicant. Similarly, the Applicant does not have the relevant training or experience to perform accounting, information technology, human resources or public relations roles.

● I do not accept that it would be appropriate to reinstate the Applicant to a position with a much lower remuneration and skill level but still maintain his previous wages and conditions.

Conclusion

[65] In all the circumstances, I am satisfied that it is inappropriate to reinstate the Applicant by appointing him to another position in accordance with s.391(1)(b).

[66] In accordance with paragraph [5] of the Full Bench’s Order, my Order of 20 November 2013 (PR544735) shall remain in effect.

DEPUTY PRESIDENT

Appearances:

J. Pearce of counsel with A. Dorahy, solicitor for the Applicant.

P. Moorhouse of counsel with D. Lynch for the Catholic Education Office Diocese of Parramatta, for the Respondent.

Hearing details:

2014

Sydney:

August, 19.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR555449>