Brian Wong and John Edward Hodes and Lawrence Kok-Loong trading as Hodes Lau & Co

[1994] IRCA 56

INDUSTRIAL RELATIONS COURT                  
OF AUSTRALIA  

SYDNEY DISTRICT REGISTRY  NI No. 193 of 1994

BETWEEN:  Brian WONG

Applicant

AND:  John Edward HODES and Lawrence KOK-LOONG Trading as HODES LAU & CO

Respondent

COURT:                   Judicial Registrar Tomlinson

PLACE:  Sydney

DATE:  26 September 1994

Reasons for Judgement

This an application under Section 170 EA of the Industrial Relations Act 1988 (“The Act”) wherein the applicant sought the following relief:

1. declaration that the termination of employment contravened Division 3 of Part VIA of the Industrial Relations Act 1988.

2.        order that the employer pay the applicant compensation in the sum of                    $798,000.

3.        such further order as deemed proper. 

In his application to the Court the applicant stated that he was employed by the respondent as an accountant from 1 August 1988 until 15 April 1994.  No reason was given for the termination and compensation was sought on the basis of the applicant’s yearly salary at the date of termination (being $38,000) for the remainder of the applicant’s working life (being a period of at least twenty one years as the applicant was then aged forty three years). 

In a statement of response filed under Order 75 Rule 3 dated 20 May 1994 the respondents denied that they terminated the applicant’s employment and it was stated that the applicant terminated his own employment.

In the alternative the respondents stated that if it was found that the applicant’s employment was terminated by the respondents, the respondents were entitled to terminate the employment due to failure by the applicant to satisfactorily perform work duties, of which failure the applicant was aware and given opportunity to respond.

On behalf of the respondents Mr. Lawrence Kok-Loong Lau stated that since the applicant commenced employment with the respondent he had been the applicant’s supervising partner with the exception of one job and from about 1992 that some of the applicant’s work was supervised by another accountant, Ms. Rose Wong.  Mr. Lau outlined various areas of concern he had about the applicant’s work. 

The events surrounding this application occurred on the 14 April 1994 when according to Mr. Lau the applicant was in his office while he reviewed draft taxation returns prepared by the applicant for clients.  An error was discovered.

Later on that day Mr. Lau discussed the error in the tax return with the applicant and stated that he tried to find out how such a mistake could occur.  Mr. Lau advised the applicant that he had lost confidence in the applicant that the applicant persisted in making mistakes.  The respondent stated that the applicant failed to pick up the mistake even when it was pointed out to him. 

The respondent in affidavit stated at this point the applicant said;

“In that case I resign, how much notice would you like?”

According to the respondent the conversation continued and the respondent stated that he waived the need for the applicant to give notice and advised the applicant could finish off tomorrow and invited the applicant to think…