Askew v Fresh 'n' Clean Pty Ltd - [1997] IRCA 268

DECISION NO:268/97

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - APPLICANT summarily dismissed by employer in a heated argument, for the reason that the employer lost his temper - Not for a VALID REASON - No PROCEDURAL FAIRNESS - UNLAWFUL TERMINATION OF EMPLOYMENT.

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - COMPENSATION - It is always necessary, when determining the question of the quantum of COMPENSATION, to consider the possibility that the employee’s employment would have been terminated in the near future in any event, even if the termination of that employee’s employment was not for a valid reason, and even if the employee was denied procedural fairness - In this case, the applicant had, about six weeks before the termination of his employment, indecently assaulted a young woman on the company premises - It was therefore likely that, upon proper investigation, the applicant’s employment would have been terminated lawfully in the near future - Five weeks wages already paid to the applicant after the termination of his employment - Not appropriate to make an order for COMPENSATION - Only order a DECLARATION that the termination of the applicant’s employment was unlawful.

Workplace Relations Act 1996ss 170CC, 170DC, 170DE, Reg 30B
Evidence Act s 60

Briginshaw v Briginshaw (1938) 60 CLR 336

Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199

ASKEW -V- FRESH ‘N’ CLEAN PTY LTD
NI 1546 of 1996

BEFORE:  Judicial Registrar Patch
PLACE:  Sydney
DATE:  15 September 1997


IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 1546 of 1996

BETWEEN:

DAVID WHAYMAN ASKEW
Applicant

AND

FRESH ‘N’ CLEAN PTY LTD
(ACN 060 412 926)
Respondent

BEFORE:      Judicial Registrar Patch
PLACE:         Sydney
DATE:           15 September 1997

MINUTES OF ORDERS

THE COURT DECLARES THAT:

That the termination of the applicant’s employment was unlawful.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 1546 of 1996

BETWEEN:

DAVID WHAYMAN ASKEW
Applicant

AND

FRESH ‘N’ CLEAN PTY LTD
(ACN 060 412 926)
Respondent

BEFORE:      Judicial Registrar Patch
PLACE:         Sydney
DATE:           15 September 1997

REASONS FOR DECISION

The applicant claims that his employment was terminated at the initiative of the respondent, and that it was unlawful. He seeks compensation only. The applicant submits that reinstatement would be impracticable, due to the breakdown in the personal relationship between himself and Mr Joe Farrugia, the principal of the respondent company.

The respondent claims that the applicant resigned. The respondent also submits that, in any event, the applicant was a probationary employee, and excluded from the operation of the Workplace Relations Act 1996 (“the Act”) by virtue of the operation of Regulation 30B and section 170CC of the Act.

BACKGROUND FACTS

In 1995 the applicant was employed in a managerial capacity by a company called Dalton Packaging Pty Ltd.

Towards the end of 1995, some discussions took place, principally between the applicant and Mr Joe…

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.

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Details

Case: [1997] IRCA 268
Decision Date: 15 Sep 1997

CaseChat Overview and Summary

In the matter of Askew v Fresh 'n' Clean Pty Ltd, the applicant, David Whayman Askew, brought an action against the respondent, Fresh 'n' Clean Pty Ltd, for unlawful termination of his employment. The central issues in this case were whether the applicant's employment was terminated at the initiative of the respondent, if there was a valid reason for the termination, and if procedural fairness was observed. The court had to determine whether the applicant's employment was terminated for a valid reason and whether the termination complied with the procedural fairness requirements of the Workplace Relations Act 1996.

The court found that the applicant's employment was terminated by the respondent, as the termination occurred during a heated conversation between the applicant and Mr. Joe Farrugia, the principal of the respondent company. The court concluded that the reason for the termination was because Mr. Farrugia lost his temper, which was not a valid reason for terminating the applicant's employment. The court also found that the termination of the applicant's employment did not comply with the procedural fairness requirements of the Workplace Relations Act 1996, as it was a summarily dismissal made during a heated telephone conversation.

Considering the circumstances of the case, the court determined that it was not appropriate to order any compensation to the applicant. This was because there was a high likelihood that the applicant's employment would have been terminated in the near future due to an incident of indecent assault on a young woman, Ms. Vanessa Hamilton. The court accepted Ms. Hamilton's allegations and found that her conduct would have warranted immediate and summary termination of employment for grave misconduct.

Therefore, the court made a declaration that the termination of the applicant's employment was unlawful, and no compensation was ordered. The decision was made on the basis that the applicant's employment would likely have been terminated in the near future for an unrelated reason, and the procedural fairness requirements of the Workplace Relations Act 1996 were not observed.

Orders