Bernadette Brennan v Kangaroo Island Council

[2014] HCASL 153

BERNADETTE BRENNAN

v

KANGAROO ISLAND COUNCIL

[2014] HCASL 153
A2/2014

1. The applicant was employed by the respondent ("the Council") as its Deputy Chief Executive Officer.  Her employment was terminated as the result of an organisational change which made her position redundant.  The applicant's contract of employment made no provision with respect to termination.  Her employment was subject to the South Australian Municipal Salaried Officers Award ("the Award") made under the Fair Work Act 1994 (SA). The Award provided for a period of three weeks' notice of termination of employment for an employee having a period of continuous service of more than three years and less than five years. Employees aged 45 years or more, having not less than two years' continuous service, were entitled to an additional week's notice of termination. The applicant was aged more than 45 years and had been employed continuously for more than three years but less than five years at the date her employment was terminated. The Award provided for payment in lieu of notice.

2. The Council paid the applicant a sum in lieu of three weeks' notice and a severance payment equivalent to seven weeks' remuneration. 

3. The applicant commenced proceedings in the District Court of South Australia (Cole DCJ) claiming damages for breach of contract.  The claim was based on an implied term of reasonable notice of termination.  Judge Cole held that the applicant was entitled to an additional one week's remuneration in lieu of notice in accordance with the provision of the Award dealing with employees aged over 45 years.  Her Honour held that there was no need to imply a term respecting reasonable notice in the contract of employment in circumstances in which the provisions of the Award applied by force of the Fair Work Act. 

4. The applicant appealed to the Full Court of the Supreme Court of South Australia (Vanstone, Anderson and Parker JJ).  The Full Court unanimously dismissed the appeal upholding the reasoning of the primary judge. 

5. The applicant applies for special leave to appeal contending that the Full Court did not have "appropriate regard, to the fact that the implied term related to a contract of employment, as opposed to a commercial contract".  The argument is not further developed.  The Full Court's analysis is consistent with the statements in Byrne v Australian Airlines Ltd[1].  An appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave. 

   [1](1995) 185 CLR 410 at 422-423 per Brennan CJ, Dawson and Toohey JJ.

6. The application is dismissed.

7. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
15 August 2014 S.J. Gageler