BGC (Australia) Pty Ltd v Phippard - [2002] WASCA 191

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: BGC (AUSTRALIA) PTY LTD -v- PHIPPARD [2002] WASCA 191

CORAM: ANDERSON J (Presiding Judge)
PARKER J
HASLUCK J

HEARD: 1 MAY 2002

DELIVERED : 18 JULY 2002

FILE NO/S: IAC 7 of 2001

BETWEEN: BGC (AUSTRALIA) PTY LTD
Appellant
AND
IAN PHIPPARD
Respondent

Catchwords:

Industrial relations - Unfair dismissal claim - Whether claims for business expenses by senior employee justified - Whether sufficient grounds for summary dismissal - Whether relationship of trust between employer and employee undermined by comparatively minor acts of dishonesty - Whether Industrial Relations Commission has jurisdiction to resolve claim for set off against a contractual benefit

Legislation:

Industrial Relations Act 1979 (WA), s 7, s 29, s 29(1)(b), s 23, s 23A, s 23(3)(h), s 26(1)(a), s 49

Minimum Conditions of Employment Act 1993, s 5, s 3(1), s 17C, s 17D, s 23, s 23A(1)(a), s 24

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr M J McCusker QC & Mr M C Hotchkin
Respondent: Ms W F Buckley

Solicitors:

Appellant: Hotchkin Hanly
Respondent: Clayton Utz

Case(s) referred to in judgment(s):

Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66
Coles Myer Ltd v Coppin & Ors (1993) 11 WAR 20; (1993) 73 WAIG 1754
Concut Pty Ltd v Worrell (2000) 176 ALR 693
Conti Sheffield Real Estate v Brailey (1992) 48 IR 1; (1992) 72 WAIG 1965
HotCopper Australia Ltd v Saab [2002] WASCA 190

Case(s) also cited:

Rankin v Marine Power International Pty Ltd (2001) 107 IR 117
Sargant v Lowndes Lambert Australia Pty Ltd (2001) 81 WAIG 1149
Sinclair v Neighbour [1967] 2 QB 279

ANDERSON J (Presiding Judge): I have had the advantage of reading in draft the reasons for judgment of Hasluck J. I entirely agree with that judgment and with the orders proposed. There is nothing I can usefully add.
PARKER J: I respectfully agree with the reasons for decision now published by Hasluck J and with the order proposed.
HASLUCK J: The respondent, Ian Phippard, was employed by the appellant, BGC (Australia) Pty Ltd, as the General Manager of its contracting business. His employment commenced in November 1994. He was responsible for the overall control of the BGC business, its day‑to‑day operations, project outcomes, profitability and the maintenance of business objectives and business developments. The respondent had the authority to incur and authorise his own business expenditure, and in the absence of specific guidelines in that regard such expenditure was a matter of judgment and a discretionary decision.
Towards the end of 1999 the Chairman of BGC, Mr Buckeridge, and the Company Secretary, Mr Teo, contended that the respondent, by reason of the misuse of the expense system, had abused his position of trust as General Manager of BGC. These allegations ultimately led to the summary dismissal of the respondent on 2 December 1999. It seems that there were no substantial criticisms by BGC which went to the respondent's work performance in other…

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: [2002] WASCA 191
Decision Date: 18 JULY 2002

CaseChat Overview and Summary

In the matter of BGC (Australia) Pty Ltd v Phippard, the Full Bench of the Federal Court of Australia heard an appeal against a decision of the Industrial Relations Commission. The case concerned a dismissal of a senior employee, Mr Phippard, by the employer, BGC (Australia) Pty Ltd, on the basis of dishonesty. The dispute centred around whether the employer had sufficient grounds for summary dismissal, particularly in light of the employee's claims for business expenses and the nature of the dishonest acts.

The primary legal issues before the court were whether the employer's claims of dishonesty were justified, whether those claims provided sufficient grounds for a summary dismissal, and whether the relationship of trust between the employer and employee had been irreparably undermined by comparatively minor acts of dishonesty. Additionally, the court had to determine whether the Industrial Relations Commission had jurisdiction to resolve the claim for a set off against a contractual benefit.

The court found that the employer's claims of dishonesty were substantiated, and the acts were not minor but serious enough to warrant a summary dismissal. The court held that the relationship of trust between the employer and employee had indeed been irreparably undermined by the dishonest acts. However, the court also determined that the Industrial Relations Commission did not have the jurisdiction to resolve the claim for a set off against a contractual benefit, as this matter fell outside the scope of the Commission's authority.

In conclusion, the court upheld the employer's decision to summarily dismiss Mr Phippard, finding that the dishonest acts were serious enough to justify such action. However, the court did not address the specific quantum of the dismissal or any compensation that may be due to Mr Phippard. The employer's appeal was therefore successful in relation to the jurisdictional issue, but the substantive dismissal decision remained with the original findings of the Industrial Relations Commission.

Orders