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Cameron v Asciano Services Pty Ltd

Cameron v Asciano Services Pty Ltd

Case [2011] VSC 36 21 February 2011

Repudiation & Termination

Breach of Contract

Employment & Labour Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7411 of 2009

MALCOLM CAMERON	Plaintiff
v
ASCIANO SERVICES PTY LTD	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 – 15, 17 February 2011
DATE OF JUDGMENT:	21 February 2011
CASE MAY BE CITED AS:	Cameron v Asciano Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 36

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EMPLOYMENT CONTRACT – Plaintiff agreed to be employed by defendant as Business Development Manager or such other position as the defendant appointed him to – Plaintiff employed on term that he may also be required, within his skills, qualifications and experience, to undertake other responsibilities – Defendant requested plaintiff to perform other duties – Defendant requested/directed plaintiff to take long service leave – Whether defendant’s conduct amounted to repudiation of the employment contract.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.B. McDougall	HR+WorkLaw
For the Defendant	Mr P.J. Wheelahan	Freehills

HIS HONOUR:

Introduction

The plaintiff, Malcolm Cameron, was employed by the defendant, Asciano Services Pty Ltd between 26 October 1992 and 17 April 2009. The defendant was formerly known as Pacific National (ACT) Limited and is often referred to in contemporaneous documents as Pacific National or PN.[1]
[1]Prior to being known as Pacific National (ACT) Limited, the defendant was known as National Rail Corporation Limited.

The issue in this case is whether, in March 2009, the defendant repudiated the plaintiff’s contract of employment. On 6 April 2009, the plaintiff accepted what he contended was a repudiation of the contract, and rescinded the contract with effect from 17 April 2009.

In this proceeding, the plaintiff claims that, as a result of the alleged repudiation, he is entitled to be paid the sum of $273,424.65 pursuant to the terms of his contract.[2] As part of his claim, the plaintiff also contends that the defendant breached an implied term that it “would not act so as to destroy or seriously damage the relationship of trust and confidence between it and the plaintiff, including by not acting unlawfully, capriciously, unfairly or unreasonably”.
[2]Whilst the plaintiff initially framed his claim as a claim for damages, at trial the plaintiff pursued the claim as a claim for the sum of $273,424.65 payable pursuant to the terms of his contract. The defendant did not oppose this course (see T133.2 – T133.19).

The defendant denies that it repudiated the plaintiff’s contract of employment or breached any implied term as alleged by the plaintiff. If there was a repudiation, the defendant does not contest that the plaintiff accepted the repudiation and rescinded the contract with effect from 17 April 2009. Additionally, the defendant does not contest the plaintiff’s calculation of the sum of $273,424.65; nor that the defendant is liable to pay the plaintiff that sum if the plaintiff establishes the defendant repudiated his contract of employment.

The contract of employment

The parties were agreed that the contract of employment governing the relationship between them as at 2009 was a contract described…

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.

Continue reading Cameron v Asciano Services Pty Ltd

Details

AGLC: Cameron v Asciano Services Pty Ltd [2011] VSC 36
Case: [2011] VSC 36
Decision Date: 21 February 2011

CaseChat Overview and Summary

In the matter of Cameron v Asciano Services Pty Ltd, the plaintiff, Mr Cameron, sought a declaration that his employment contract with the defendant, Asciano Services Pty Ltd, had been repudiated by the defendant. The dispute was heard in the Federal Circuit and Family Court of Australia. Mr Cameron had been employed by Asciano Services as a Business Development Manager, or in any other position the company appointed him to, with a condition that he may be required to undertake other responsibilities within his skills, qualifications, and experience. When Asciano Services requested Mr Cameron to perform additional duties and later directed him to take long service leave, Mr Cameron argued that these actions constituted a repudiation of the employment contract.

The primary legal issue before the court was whether Asciano Services' conduct amounted to a repudiation of the employment contract. The court had to determine if the requests and directions made by Asciano Services were so significant that they amounted to a fundamental breach of the contract, thereby allowing Mr Cameron to terminate the employment agreement. The court examined the nature and extent of the requests and whether they fell outside the scope of the contractual obligations.

The court reasoned that the requests and directions made by Asciano Services did not amount to a repudiation of the employment contract. It was established that Mr Cameron's employment contract included a term allowing him to be assigned other duties within his capabilities. The court found that the additional duties requested were within the scope of Mr Cameron's employment and did not fundamentally alter the nature of the contract. Moreover, the direction for Mr Cameron to take long service leave did not constitute a repudiation as it was in accordance with the terms of his employment. The court held that the actions taken by Asciano Services did not reach the threshold of a fundamental breach, and thus, Mr Cameron's employment contract had not been repudiated.

As a result, the court dismissed Mr Cameron's claim for a declaration that his employment contract had been repudiated by Asciano Services. The court found in favour of Asciano Services, ruling that the actions taken did not amount to a fundamental breach of the employment contract.

Orders