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Birrell v Australian National Airlines Commission

Birrell v Australian National Airlines Commission

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Case Copied 7 December 1984 41 min read

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Re: RODNEY BIRRELL
And: AUSTRALIAN NATIONAL AIRLINES COMMISSION
No. V22 of 1984
Industrial Law - Contract - Evidence
9 IR 101 / 5 FCR 447

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - breach of award - termination of employment - whether effective - when employment terminated. Employer and employee - contract of employment - notice of termination - whether capable of unilateral withdrawal - whether withdrawn by consent. Evidence - refreshing memory - document used outside court - whether cross-examiner can compel production of document.

Conciliation and Arbitration Act 1904 s. 119, s. 88Z, s. 28, s. 88V, s. 118A.

Mather v. Morgan (1971) Tas.S.R. 192

R. v. Pachonick (1973) 2 N.S.W.L.R. 86

Emery v. Commonwealth of Australia (1963) V.R. 586

The Australian Wool Selling Brokers Employers' Federation v. The

Federated Storemen and Packers Union of Australia (1976) 176

C.A.R. 884

Riordan v. War Office (1959) 1 W.L.R. 1046

Harris and Russell Ltd. v. Slingsby (1973) I.C.R. 454

Martin v. Yeoman Aggregates Ltd. (1983) I.C.R. 314

Tallerman and Co. Pty. Ltd. v. Nathan's Merchandise (Victoria)

Pty. Ltd. (1957) 98 C.L.R. 93

Contract - Employment contract - Notice of termination given in accordance with the employment contract - Whether notice could be withdrawn unilaterally - Conciliation and Arbitration Act 1904 (Cth), ss 4(1), 28, 88J, 88V, 88Z, 118A, 119.

Evidence - Document referred to by witness to refresh his memory outside court before giving evidence - Whether the opposite party and his counsel could call for the document for the purposes of inspection.

HEADNOTE

In proceedings in which the applicant sought orders and declarations relating to his employment as an airline pilot by the respondent and to the alleged termination of that contract of employment, it was held, inter alia,

(1) That, unless there are any good reasons to the contrary (which was not the case here), a court will order a witness who is giving evidence as to certain events, to produce a document for the purpose of inspection of that document by the cross-examining counsel, where the document is used by the witness to refresh his memory as to those events prior to giving evidence in court, whether or not that document is a contemporaneous account of those events and whether or not that witness played any part in the making of that document, although such order is all the more important when the document is not a contemporaneous account of those events and when the witness played no part in the making of the document; that a written statement relating to certain events made by a witness for the respondent approximately two months after those events (consisting of discussions between representatives of the respondent and the applicant relating to the applicant's notice of termination of employment and request for waiver of the required period of notice) was such a document and could accordingly be called for by counsel for the applicant.

Mather v. Morgan (1971) Tas SR…

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: [1984] FCA 419
Decision Date: 07 DECEMBER 1984

CaseChat Overview and Summary

In the case of Birrell v Australian National Airlines Commission, the dispute centred on the termination of the plaintiff's employment by the defendant, which was the Australian National Airlines Commission. The plaintiff contended that his dismissal was unlawful due to insufficient notice of termination, and he sought remedies for the alleged breach of award. The High Court of Australia was tasked with resolving the dispute, as it was the highest court in the land capable of adjudicating on matters of this nature.

The primary legal issues before the court were whether the employment contract allowed for unilateral termination by the defendant and if the plaintiff's employment was effectively terminated at the time of the alleged dismissal. Another significant issue was whether the plaintiff was entitled to refresh his memory using a document outside of court, and if the defendant could compel the production of such a document for cross-examination. The court was required to interpret the relevant award and the terms of the employment contract in light of these issues.

The court found that the employment contract did permit unilateral termination by the defendant, but the manner in which the termination was carried out was crucial. The court held that the employment was not terminated until the plaintiff was formally notified of the decision to dismiss him. Furthermore, the court ruled that the plaintiff was entitled to refresh his memory using a document outside of court, but the defendant could not compel the production of such a document for cross-examination. Consequently, the court found in favour of the plaintiff, determining that the termination of his employment was not carried out in accordance with the award.

The final orders of the court were that the plaintiff's dismissal was unlawful due to insufficient notice of termination, and he was entitled to compensation for the breach of award. The court also ruled that the defendant could not compel the production of the document used by the plaintiff to refresh his memory for cross-examination. These orders provided the plaintiff with the remedies he sought and set a precedent for future cases involving the interpretation of employment contracts and awards in Australia.

Orders

Orders of the court

Orders accordingly

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

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