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
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
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…
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- Case
- [2002] WASCA 191
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: PARKER J, ANDERSON J
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