Justice at last
REINSTATING a worker meant providing them with a job and not just a pay cheque, Australia's High Court has ruled.
The court found an Australian Industrial Relations Commission (AIRC) order for reinstatement of an employee required the employer to provide actual work to the employee.
Stephen Blackadder, a boner at Ramsey's abattoir in South Grafton, was sacked in September 1999 after he refused to undertake hot neck boning instead of his usual job of hindquarter boning of prechilled carcasses.
Hot neck boning involves freeing meat from the bones from the neck to the ribs and requires greater rotational force of the elbow and wrist than general boning.
Mr Blackadder, a former rugby player and rodeo rider, had an old injury to his right elbow affecting movement in his arm and he refused to do hot neck boning because he had no training in it.
In March 2000, AIRC Commissioner Bob Redmond found Mr Blackadder's sacking was unfair, harsh and unreasonable.
He ordered Mr Blackadder be reinstated and his lost salary and entitlements be restored.
Ramsey Butchering Services wrote to him telling him he needed to have a medical assessment before resuming physical work.
When Mr Blackadder refused to undergo the examination, because he said Commissioner Redmond's order did not require it, but he was ready to resume his previous boning work, Ramsey stopped his wages.
Mr Blackadder started action in the Federal Court in July 2000 to enforce the AIRC orders.
The abattoir resumed paying him but refused to provide him with work and arranged a medical examination, to which he was prepared to submit, for February 2001.
However, the doctor refused to examine him because Mr Blackadder insisted on his wife being present. Ramsey again stopped his wages.
Mr Blackadder eventually underwent a medical examination in April 2001. Ramsey resumed paying him but still refused to provide him with work.
In the Federal Court in May 2001, Justice Rodney Madgwick held that reinstatement included giving Mr Blackadder his usual work and ordered Ramsey allow Mr Blackadder to resume chilled boning work.
The full bench of the Federal Court, by majority, allowed in part an appeal by Ramsey.
It held that an employer had no obligation to provide work unless a contract of employment specifically required it.
The High Court unanimously allowed an appeal by Mr Blackadder.
It found that to pay him, but not to restore him to his usual position in the workplace, was not to reinstate him.
The court held Mr Blackadder had to be given back his job, per- forming the same duties on the same terms and conditions, and that reinstatement was not conditional on a medical examination.
"In our opinion it is also at least implicit in the reasons for the order of the commission at first instance that the appellant would be provided with actual work for him to do," Justices Ian Callinan and Dyson Heydon said in their judg- ment.