Burazin v Blacktown City Guardian

[1996] IRCA 387

DECISION NO:  387/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT CONVENTION - CASUAL EMPLOYMENT - INTERPRETATION - meaning of “casual employee engaged for a short period”

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Claim of UNLAWFUL TERMINATION - VALID REASON - HARSH, UNJUST OR UNREASONABLE - PROCEDURAL FAIRNESS - COMPENSATION - whether COMPENSATION payable for distress, disappointment, anxiety, humiliation, injured feelings not amounting to psychiatric illness

INDUSTRIAL LAW - EMPLOYMENT CONTRACT -  whether IMPLIED TERM - duty of mutual trust and confidence - BREACH OF CONTRACT - whether DAMAGES payable for breach of duty of mutual trust and confidence - Whether damages for DISTRESS payable

Industrial Relations Act 1988 (Cth): ss 3, 170ca, 170cb, 170ce, 170de, 170ea, 170ee, 415, 470, 471

Industrial Relations Regulations: Reg 30b

Termination of Employment Convention: Article 2

Workers Compensation Act 1987, ss 66, 67, 151a, 151g

Addis v Gramophone Co Limited [1909] AC 488

Aitken v The Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (Unreported, Lee J, 7 August 1995, WI94/328)

Baltic Shipping Co v Dillon (1993) 176 CLR 344

BP Refinery (Westernport) Prt Limited v Shire of Hastings (1977) 16 ALR 363

Byrne & Frew v Australian Airlines (1995) 131 ALR 422

Courtaulds Northern Textiles Limited v Andrew [1979] IRLR 84

Duncan v Kingfleet Holdings Pty Limited t/as Lyster Removals & Storage (Unreported, Patch JR, 1 August 1995, WI95/1215)

Grout v Gunnedah Shire Council(No 2) (1995) 58 IR 67

Mohazab v Dick Smith Electronics Pty Limited (Unreported, Lee, Moore, Marshall JJ, 28 November 1995, NI95/2571)

Mount Isa Mines v Pusey (1970) 125 CLR 383

Swan v Williams Demolition Pty Limited (1987) 9 NSWLR 172

Western Excavating (ECC) Limited v Sharp [1978] ICR 221

Whelan v Waitaki Meats Limited [1991] 2 NZLR 74

Woods v W M Car Services (Peterborough) Limited (Court of Appeal) [1982] ICR 693

Woods v W M Car Services (Peterborough) Limited [1981] ICR 666

Mara BURAZIN v The BLACKTOWN CITY GUARDIAN
NI 1993 of 1995

CORAM:   MADGWICK J
PLACE:     SYDNEY

DATE:      2 AUGUST 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY
  No. 1993 of 1995

BETWEEN  MARA BURAZIN
  Applicant

AND  BLACKTOWN CITY GUARDIAN PTY LTD
  Respondent

CORAM:  MADGWICK J
PLACE:    SYDNEY
DATE:     2 AUGUST 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

The Respondent pay compensation in the amount of $3,000.00 to the Applicant, together with interest at the rate prescribed by Order 35 Rule 8 of the Industrial Relations Court Rules within 14 days from today.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY
  No. 1993 of 1995

BETWEEN  MARA BURAZIN
  Applicant

AND  BLACKTOWN CITY GUARDIAN PTY LTD
  Respondent

CORAM:  MADGWICK J
PLACE:    SYDNEY
DATE:     2 AUGUST 1996

SUPPLEMENTARY JUDGMENT

MADGWICK J:         In my “Reasons for Judgment” published on 15 December 1995, I expressed some final and some tentative views about the legal issues in this matter.  I expressed the view that some of those issues, being of some importance to this Court, should be decided by a Full Bench.  However, I was not inclined to refer the matter to a Full Bench unless and until the Applicant could obtain financial assistance for a hearing before the Full Court.  I adjourned the matter for that reason and caused my remarks to be sent to the Attorney General and the Minister for Industrial Relations.  In the event, the Applicant was unable to obtain that assistance and, after the change of government, the Minister declined to intervene.

On 2 May 1996, I decided not to so refer those issues.  It remains for me to dispose of the matter myself.  Having received, after invitation, no further submissions from Counsel, I now publish my decision.  The issues in detail, and my reasoning, are contained in my observations published earlier, and which are attached as “Appendix A” to this Supplementary Judgment.  Where necessary for a final resolution of the matter, I adopt, as concluded views, the tentative approaches I suggested in December.

Division 3 of Part VIa of the Industrial Relations Act 1988 (Cth) applied to the Applicant.

The applicant is entitled to compensation under that Act for the unlawful termination of her employment, such termination having been not for a valid reason within the meaning of the Act and/or harsh, unjust or unreasonable.

The Applicant is entitled to be compensated for economic loss, as a result of her diminished employability and the difficulty of finding alternative employment, caused by the circumstances of her unlawful termination.  An amount of $3,000.00, being the equivalent of about two months’ pay, is appropriate.

The Applicant is not entitled to compensation under the Act, or damages at common law, merely for distress, disappointment or injured feelings arising out of the termination of her employment.

The Respondent, by its treatment of the Applicant leading up to the unlawful termination of her employment, breached an implied duty of mutual trust and confidence.  However, no compensible damage extending beyond what is provided for by the Act, and for which I have awarded the Applicant compensation, flowed from that breach.  I decline, therefore, to make an award of damages for breach of contract, in addition to the amount for compensation under the Act.

I order the Respondent to pay compensation in the amount of $3,000.00 to the Applicant, together with interest at the rate prescribed by Order 35 Rule 8 of the Industrial Relations Court Rules, within 14 days from today.

I certify that this and the preceding 2 pages are a true copy of the Supplementary Judgment of His Honour Justice Madgwick.

Associate:  

Dated:       2 August 1996

APPEARANCES

Counsel for the Applicant:      M Christie

Solicitor for the Applicant:      Champion & Partners

Counsel for the Respondent:    P Cook

Solicitor for the Respondent:   B David & Associates

Date of hearing:  2 & 3 November 1995