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Akmeemana v Murray

Akmeemana v Murray

Case [2009] NSWSC 979 29 September 2009

Employment & Labour Law

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Reported Decision:
[2010] ALMD 3090
190 IR 66
62 AILR 200-442

New South Wales

Supreme Court

CITATION: Akmeemana v Murray & ors [2009] NSWSC 979

HEARING DATE(S): 17 August 2009

JUDGMENT DATE :
29 September 2009

JUDGMENT OF: Davies J

DECISION: The parties should bring in Short Minutes of Order to reflect these reasons.

CATCHWORDS: EMPLOYMENT LAW - the contract of service and rights, duties and liabilities as between employer and employee - remedies upon breach - whether commissions could be withheld for particular breach of employment contract - whether terms implied into employment contract linking acts of performance to payment of commission - obligation of employer to make superannuation contributions - whether a term of the contract of employment - whether a failure by the employer to make contributions results in damage to employee for which damages are payable. PROCEDURE- appeal from Local Court - extension of time for bringing appeal - principles involved.

LEGISLATION CITED: Supreme Court Rules
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Allen v Carbone (1975) 132 CLR 528
Amalgamated Collieries of WA Limited v True (1938) 59 CLR 417
Anthony v Chris Savage Pty Ltd [2003] NSWSC 698
Appleby v Pursell [1975] 2 NSLWR 879
Byrne v Australian Airlines Limited (1995) 185 CLR 410
Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Currabubula v State Bank of NSW [2000] NSWSC 232
Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889

PARTIES: Chaminda Akmeemana (Plaintiff)
Craig Murray (First Defendant)
Geller & Associates Pty Ltd (Second Defendant)
Joshua Abraham Geller (Third Defendant)
Trevor Jones (Fourth Defendant)

FILE NUMBER(S): SC 10656/09

COUNSEL: J Sleight (Plaintiff)
First Defendant - no appearance
T Saunders (Second, Third and Fourth Defendants)

SOLICITORS: Neville & Hourn Legal (Plaintiff)
Harmers Workplace Lawyers (Second, Third and Fourth Defendants)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 11318/07

LOWER COURT JUDICIAL OFFICER : Magistrate Bradd

LOWER COURT DATE OF DECISION: 05/12/2008

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

29 SEPTEMER 2009

10656/09 CHAMINDA AKMEEMANA v CRAIG MURRAY & ORS

JUDGMENT

1 This is an appeal from the decision of the Local Court constituted by Magistrate Bradd sitting at the Downing Centre given on 5 December 2008. As the proceedings in this Court were not commenced until 3 February 2009 the Plaintiff seeks also an extension of time for the bringing of the appeal.

Background

2 Pursuant to an Employment Contract dated 26 February 2007 the Plaintiff was employed from 1 March 2007 to 1 November 2007 as a recruitment consultant by Geller & Associates Pty Ltd, the Defendant on this appeal (“Geller & Associates”). Geller & Associates recruits high value, niche and skilled specialists in corporate performance management and business intelligence. It employs recruitment consultants to recruit across a number of specified areas rather than to recruit for a specific account or client. At the time of the engagement of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Akmeemana v Murray

Details

AGLC: Akmeemana v Murray [2009] NSWSC 979
Case: [2009] NSWSC 979
Decision Date: 29 September 2009

CaseChat Overview and Summary

The case of Akmeemana v Murray concerns a dispute between an employer and an employee regarding various aspects of their employment contract, including the withholding of commissions and superannuation contributions. The matter was initially heard in the Local Court and subsequently appealed to a higher court. The key issues that the court was required to address included the enforceability of terms related to commission payments and the obligations of the employer to make superannuation contributions. The court had to determine whether certain terms were implied into the employment contract, and if so, whether they could be enforced against the employer. Additionally, the court needed to assess whether the employer's failure to make superannuation contributions constituted a breach of contract and, if so, whether the employee could claim damages for that breach.

In considering these issues, the court examined the terms of the employment contract and the conduct of the parties. Regarding the commission payments, the court had to determine whether there were implied terms linking specific acts of performance to the payment of commissions. The court found that certain terms were indeed implied into the contract and that the employer was entitled to withhold commissions for particular breaches of the contract. As for the superannuation contributions, the court held that the obligation to make such contributions was not a term of the employment contract. Therefore, the employer's failure to make these contributions did not result in damages payable to the employee. The court further considered procedural matters, including the extension of time for bringing the appeal, and applied relevant principles to arrive at its decision.

Ultimately, the court dismissed the appeal and upheld the decision of the Local Court. The court confirmed that the employer could withhold commissions for specific breaches of contract and that the employer was not obligated to make superannuation contributions as part of the employment contract. The court did not find that the employee was entitled to damages for the employer's failure to make superannuation contributions. The final orders of the court were to affirm the decision of the Local Court, with the appeal costs to be borne by the appellant.

Orders