Visscher v The Honourable President Justice Giudice & Ors [2009] HCATrans 53 (13 March 2009)

Last Updated: 20 March 2009

[2009] HCATrans 053

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S30 of 2008

B e t w e e n -

TIMOTHY VISSCHER

Applicant

and

THE HONOURABLE PRESIDENT JUSTICE GIUDICE, THE HONOURABLE SENIOR DEPUTY PRESIDENT DRAKE, COMMISSIONER ROBERTS, COMMISSIONER REDMOND, AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

First Respondents

TEEKAY SHIPPING (AUSTRALIA) PTY LIMITED

Second Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 2009, AT 12.29 PM

Copyright in the High Court of Australia

MR N.J. OWENS: If the Court pleases, I appear for the applicant. (instructed by the applicant)

MR G.J. HATCHER, SC: May it please the Court, I appear with my learned friend, MR B.K.B. CROSS, for the second respondent. (instructed by Deacons Lawyers)

HEYDON J: Let me just get the general structure of your case correct, Mr Owens. Under section 170CE(1) of the legislation, the expression “termination of employment” is defined as termination at the instance of the employer, correct, and that expression is understood to mean not termination of the contract of employment, but termination of the employment relationship?

MR OWENS: Yes, correct.

HEYDON J: In a case like Byrne’s Case, for example, which says that when an employer breaches a contract of employment, that brings to an end the employment relationship. That was not a discussion bearing in mind this statutory context that confronts us?

MR OWENS: No, that was a different issue in Byrne.

HEYDON J: Is this correct, that when in 2001 the employer repudiated the contract of employment, it nonetheless continued to obtain the same work from Mr Visscher and continued to pay him the same money?

MR OWENS: Correct.

HEYDON J: Your proposition is that whatever happened in 2001 it did not terminate the employment relationship and that condition continued up to 2004.

MR OWENS: Correct.

HEYDON J: The advantage to your client in having applied to his position the state of affairs as at 2004, is that some more beneficial remedy will hopefully flow to him under 170CE(1), is that correct?

MR OWENS: The way the case has been put really, establishing that my client was employed as a permanent chief officer in 2004, is that is the employment that we say was terminated at that time. If, in fact, my client were employed as a permanent second mate in 2004, then it becomes difficult, if I can put it that way, to see how an instruction from his employer to serve as second mate could constitute a dismissal or a termination, even being a constructive dismissal if then what my client did

is take it as a resignation. So it is critical to my client’s case that his employment was terminated at the initiative of his employer in 2004, that at that time he was employed as a permanent chief officer.

HEYDON J: If he were only a second mate, is there still not some difficulty – what did Justice Buchanan say about that possibility?

MR OWENS: About the possibility that he were employed as a - - -

HEYDON J: Second mate. Was any consideration given to the possibility the relief to him under 170CE, if that were the correct state of affairs?

MR OWENS: I was not involved below, I do not think there is anything in Justice Buchanan’s about that. I am not sure if it was issue.

HEYDON J: Was that part of the case below or was it an all or nothing? Was your preferred case the only case?

MR OWENS: I think the safest thing for me to do would be to take instructions from my client in relation to that because I was not there. I believe it was. I know the case was always that he was employed continuously as a permanent chief officer up until 2004. It was not a premise of the case that he was employed as a second mate in 2004.

HEYDON J: Very well. I think if you could just take a seat for a moment. Mr Hatcher, to be blunt about it, it is not at all clear that the Full Federal Court really grasped the issues as they have just been explained by Mr Owens. I mean, how can it be said that the relationship of employment did not continue if Mr Visscher were doing the same work and being paid the same amount of money as he was under the contract of employment that was repudiated?

MR HATCHER: With respect, your Honour, that issue was well and truly grasped. The Full Court focused its attention on whether there was a termination of the employment relationship at the initiative of the employer. They then went back to the tribunal that was charged with the duty of determining that issue, examined that tribunals analysis. That tribunal certainly considered the two situations; that is, firstly, whether Mr Visscher had continued in employment as a permanent officer, notwithstanding the employer’s approach to the question; and, secondly, if he had not. That tribunal found that on either approach what transpired in 2004 was not a termination at the initiative of the employer.

All that had occurred was accepting Mr Visscher’s assertion that he had been told by someone that he may sail as a second mate even if he were employed as a permanent chief officer. That could not be sufficient to terminate the employment relationship at the employer’s initiative for the purposes of the Act. The Act contemplates that an employee can be demoted, can have a completely different position – that was Brackenridge in the Full Court – and yet, there nonetheless - - -

HEYDON J: That was not pursuant to a breach of contract, though. Was that not a consensual lawful termination?

MR HATCHER: No, your Honour. In fact, the Full Court of the Federal Court went on to find that there was a breach of contract and considered damages. They found that there were no damages because there was misconduct. So there is a very clear distinction between the termination of contract and the termination of the employment relationship. One needs to consider whether the action of the employer is such as to bring an end to the employment relationship. There is a specific finding of fact by Commissioner Redmond that is adopted and embraced by the Full Court that the employer, in fact, wanted to continue the employment relationship; that nothing that the employer did was inconsistent with that employment relationship continuing.

Once that finding is made – and that is the finding at first instance by the Commissioner. He has exercised his jurisdiction. The jurisdiction to be exercised by the Full Bench is to consider an appeal, determine if there is error and if there is error, consider whether leave to appeal should be granted. The Full Court held, as was inevitable, in our respectful submission, that that duty had been discharged. There is no jurisdictional error in the Full Bench.

HEYDON J: If you got to page 70, paragraph 49 of the application book, what point in time is Justice Buchanan focusing on in that paragraph:

Mr Visscher could not insist on performance of his contract by Teekay even if the contract itself remained on foot for limited purposes.

What date is that?

MR HATCHER: Your Honour, that is 2001.

HEYDON J: Right. The next sentence must surely be incorrect, in a sense, must it not, or at least incomplete:

His employment as a permanent Chief Officer was brought to an end by Teekay’s conduct, even though wrongful.

It might be true to say that his contract of employment was brought to an end, but was his employment brought to an end when he did the same work for the same money?

MR HATCHER: Your Honour, he did do the same duties, but the way in which he was paid was quite different. When you say “the same work”, he did it as a relieving chief mate, as he had done from the very first day he worked for our client. He commenced work as a third mate, acting as master.

BELL J: But then you made an offer that he be promoted to chief mate, which offer he accepted and on a view wrongfully, you then breached your contract with him.

MR HATCHER: There is a certain degree of history associated with it, industrial action, a recommendation by the Australian Industrial Relations Commission that our client do just that, but it might be said and, indeed, his Honour Justice Buchanan was inclined to find, there was a wrongful repudiation.

BELL J: I think his Honour did find that, did he not?

MR HATCHER: I think he did your Honour, but that did not end the employment relationship and from that point our client contended, maintained, that Mr Visscher was engaged as a second mate acting in the first mate, consistent with the Commission’s recommendation. More importantly, the certified agreement reflected that situation and the certified agreement has statutory force. It simply was not open to the Full Bench, we would say, Mr Visscher to contend he was anything other than a second mate. His payslips say he is a second mate getting an allowance for acting as first mate. The agreement says he is a second mate given statutory force by the Act.

Putting all that one side, at the very end his employment comes to an end he says because an officer of our client, on the telephone, in a conversation relating to Mr Visscher having refused to continue working on the vessel he was on as a first mate said, “You may have to act as a second mate.”. The Commission – and one would give some weight to its experience in these matters – says in those circumstances, even if he was a first mate, given that he has removed himself from the vessel on which he is engaged as a first mate, and other alternative employment has to be found for him, the suggestion by the employer that he might be engaged on some other vessel for some short period of time as a second mate is not an indication that the employer wishes to bring an end to the employment relationship.

HEYDON J: Can we just go to page 72, paragraph 54:

Teekay’s unlawful act was fully effective to terminate Mr Visscher’s employment as a permanent Chief Officer.

That is speaking of 2001?

MR HATCHER: Yes, your Honour.

HEYDON J: Then it is said that:

the legal consequence of the continuing employment relationship, albeit under protest, was that Mr Visscher remained in employment as a permanent Third Mate, not a permanent Chief Officer.

MR HATCHER: Yes.

HEYDON J: Then it said that:

Mr Visscher’s argument that in 2004 his contract of employment was again repudiated . . . must therefore be rejected.

What is the force of the “therefore”? What are the premises that lead to that conclusion?

MR HATCHER: I think, your Honour, it is simply the previous paragraph. His Honour finds that there was a new contract of employment after the wrongful repudiation of the contract as a chief mate.

HEYDON J: How can that be? Whatever else can be said, Mr Visscher was surely protesting from what happened in 2001 onwards, was he not?

MR HATCHER: He certainly in 2001 sent a letter saying, “You have terminated me” and that was the effect of the correspondence, but he continued to work. He is getting paid the same money but he is receiving payslips that say, “You are as a second mate”. He was a third mate, your Honour, and there was then a progression in accordance with the agreement to second mate.

HEYDON J: Is it not the law if that if a contract of employment is unilaterally breached and the repudiation is not accepted it continues, although it may not be much use to the employee because he cannot get specific performance and there might be some damages he could get, but - - -

MR HATCHER: Generally minimum.

HEYDON J: - - - it is difficult. In those circumstances it is hard to see that you could not find any consent by Mr Visscher to the entry into a new contract of employment from 2001.

MR HATCHER: Your Honour, one might accept that analysis of the contract, but one is faced with the statute and the statute prevails over the contract.

HEYDON J: How does the statute prevail over the contract? Which bit of the statute?

MR HATCHER: The part of the statute, your Honour, that gives legal force and effect to the agreement, requires the employer and the employee to be bound by the terms and provisions of the agreement and the agreement provides that Mr Visscher is employed as a third mate then second mate.

HEYDON J: Yes, well, that is controversial. Mr Owens at least joins issue with it. Is there anything else that will add to what you have said or to your written submissions?

MR HATCHER: There is one thing we have raised in our written submissions, but in our respectful submission, it has not been dealt with. Could I invite the Court to turn to the relief which is sought, which is found at application book page 88. The order sought is a writ of certiorari quashing the decision of the Full Bench, that is the appeal decision, and a writ of mandamus directing the Industrial Relations Commission to hear and determine the appeal. It is the only relief that is sought. Now, that was not what was before the Full Court of the Federal Court. There was a challenge to Commissioner Redmond’s decision before the Full Court of the Federal Court.

HEYDON J: Your point is that if there is to be any relief at all it should be something that directs itself to the Federal Court of Australia rather than the Australian Industrial Relations Commission?

MR HATCHER: No, I am sorry, your Honour. This is an application for leave to appeal from the Federal Court.

HEYDON J: Yes.

MR HATCHER: But the final relief that is sought were the appeal successful is relief directed to the Full Bench. Now, that relief could only be granted if there were jurisdictional error by the Full Bench and no jurisdictional error was adverted to by the Full Bench. Their duty was to hear an appeal. Now, they may be right, they may be wrong, but so long as

they identify correctly their duty, it is to determine error, and proceed to fulfil that duty, discharge that duty, they are not amenable to relief for jurisdictional error. That is the effect of Coal and Allied. There is an argument that maybe they were wrong as a matter of law. I must say we are still having some difficulty coming to grips with that argument, but if they are not wrong as a matter of law – they are entitled to be wrong as a matter of law.

HEYDON J: Yes, very well. Thank you. Yes, Mr Owens, what do you say about the last point that Mr Hatcher made?

MR OWENS: The short point is if the only objection is that we do not seek relief against the Commission itself, I am more than happy to draft a notice of appeal that sought that relief, but Mr Hatcher seems to be saying that that was the relief that was sought in the Federal Court and there was no dispute that that was appropriate, so I am certainly happy to seek that. But the jurisdictional error of the Full Bench is the error of law in relation to the identification of the jurisdictional fact at issue in these proceedings, namely, whether or not the applicant was employed as a permanent chief officer in 2004. So I do not accept the criticism, but if it can be accommodated by seeking, at least in the alternative, relief against Commissioner Redmond, then we will do that.

HEYDON J: Is there anything else you want to say in reply to what the respondent said?

MR OWENS: There are a couple of points. The first is said in relation to Brackenridge, that there was an unlawful breach of contract there. I think your Honours have a copy of that decision?

HEYDON J: Yes.

MR OWENS: If I could take your Honour to the decision in Brackenridge [1996] IRCA 628; 142 ALR 99 at page 109. At the top of the page there, there is:

Ms Brackenridge was guilty of wilful misconduct that justified termination of her contract of employment without notice –

This was said by Justice Buchanan as well. It was accepted that the issue in Brackenridge was a lawful termination of the contract of employment and the question was whether there was termination of employment within the meaning of the statute. So that point is not made good. The second one was that there was in the Commission an analysis of both options. That is not the case either. If I could take your Honours to the application book at page 39, paragraph [15] – this is the Full Bench decision – it says that there were two questions:

The first was whether the respondent’s purported rescission of the appellant’s promotion in September 2001 was effective in law . . . The Commissioner did not deal with the first question directly –

and that is, certainly on my reading of the Commissioner’s decision, correct. That question was not addressed and the Commissioner proceeded to determine the issue on the assumption that the demotion had been effective in 2001 and all subsequent facts were analysed in light of that basic assumption. So the factual findings that my friend refers to we say.....really does not exist. Those are my submissions.

BELL J: What do you say about the submissions concerning the effect of the certified agreement?

MR OWENS: The certified agreement, your Honour, does not – and no certified agreement creates an employment relationship. A certified agreement sets out terms applicable to existing relationships. So the first point that we make is that the employment relationship is something that exists prior to the certified agreement and the certified agreement does not create a new employment relationship, namely, one of Mr Visscher as a third mate.

The second point that we would make is that the certified agreement does not in any way say Mr Visscher is employed as a third mate. It has one provision that says future promotions will be in accordance with the attached schedule and that schedule lists Mr Visscher as a third mate. The simple point that we make in relation to that is that that is not a statement that he is employed as a third mate. It is a provision which, if Mr Visscher’s promotion were ever to come up, may have assumed some relevance but it can be ignored for present purposes.

HEYDON J: Thank you. Yes, Mr Hatcher, what do you wish to add.

MR HATCHER: If it please the Court. I just wish to draw attention to lines 30 to 35, page 101 of the judgment of the Full Court in Brackenridge. I thought the point I had made was a demotion terminates the contract of employment.

HEYDON J: Just give us that reference again? Did you say 101?

MR HATCHER: Yes[1996] IRCA 628; , 142 ALR 99, your Honour, at 101.

HEYDON J: Lines?

MR HATCHER: Lines 30 to 45, your Honour. The demotion terminated the contract of employment, unilateral variation, but the termination was, as my friend says, not wrongful and therefore there were no damages.

HEYDON J: We are of the opinion that the application for special leave should not be decided now, but that the matter should be referred into a Full Court of this Court to be argued, as if it were an appeal. One possibility is, as the argument develops, that it might be decided not to grant special leave. Another possibility is that the whole argument is heard and then either special leave is revoked or granted and the appeal allowed. So that is what we would propose and we would reserve today’s costs.

How long do you think it would take, assuming it were argued fully, as on an appeal – half a day?

MR OWENS: I think half a day would be sufficient.

HEYDON J: So it could be put in on a Thursday or a Friday when everyone wants to leave Canberra as quickly as possible. Do you agree with that estimate, Mr Hatcher?

MR HATCHER: Yes, your Honour.

HEYDON J: That will be the order of the Court then. The matter will be adjourned into a Full Court.

The Court will adjourn until 10.15 on Tuesday, 31 March 2009, in Canberra.

AT 12.54 PM THE MATTER WAS CONCLUDED