Bibby Financial Services Australia Pty Ltd v Sharma

Bibby Financial Services Australia Pty Ltd (the appellant) appealed a decision concerning the termination of an employment contract with Mr Sharma (the respondent). The dispute centred on whether the termination was effected without cause or for serious misconduct, and whether the appellant had made an election between these grounds. The appeal was heard by Beazley P, Barrett and Gleeson JJA in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the respondent's employment was terminated for serious misconduct, whether the appellant had complied with the necessary processes for such a termination, and if non-compliance rendered the asserted termination for cause invalid. The court also considered whether the incidents relied upon by the appellant constituted sexual harassment under the *Sex Discrimination Act 1984* (Cth), and whether the respondent had an accrued right that remained despite termination for cause. The standard of proof for serious allegations, particularly in the context of the *Briginshaw* standard and s 140(2) of the *Evidence Act 1995* (Cth), was also a key consideration.

The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The court reasoned that the appellant had not established that the respondent's conduct amounted to serious misconduct or sexual harassment, and that the appellant had failed to comply with the procedural requirements for termination for cause. Consequently, the asserted termination for cause was invalid. The court found that the appellant had not made a clear election between grounds for termination and that the respondent retained an accrued right. The appellant was ordered to pay the respondent's costs of the appeal.