Cook v CFP Management Pty Ltd - [2006] QCA 215

SUPREME COURT OF QUEENSLAND

CITATION:

Cook v CFP Management P/L [2006] QCA 215

PARTIES:

DAVID JAMES COOK
(plaintiff/respondent)
v
CFP MANAGEMENT PTY LTD
ACN 086 839 750

(defendant/appellant)

FILE NO/S:

Appeal No 10201 of 2005
DC No 1369 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2006

JUDGES:

de Jersey CJ, Williams JA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1.Appeal allowed

2.The judgment at first instance is set aside and in lieu thereof, order that the action be dismissed with costs

3.Respondent to pay the appellant’s costs of and incidental to the appeal, to be assessed on the standard basis

CATCHWORDS:

EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – DURATION AND TERMINATION OF EMPLOYMENT – TERMINATION BY OR AT INSTANCE OF EMPLOYEE – where the appellant (employer) and the respondent (employee) had entered into a contract of employment – where the appellant sold its stockbroking business to another company – where the respondent had been offered a job on new terms and conditions with the new employer – where the respondent claimed that this change in ownership violated the contract of employment and as such the respondent terminated his employment with the appellant – whether the termination of the employment contract was brought about by the conduct of the employer (“constructive dismissal”) or the conduct of the employee – whether the respondent was entitled to recover money for long service leave or money in lieu of notice

Industrial Relations Act1999 (Qld), s 43, s 43(4)(c)(i)

Spencer v Dowling and Anor [1997] 2 VR 127, applied

COUNSEL:

D J S Jackson QC, with T J Bradley, for the appellant
G Beacham for the respondent

SOLICITORS:

Blake Dawson Waldron for the appellant
Cooper Grace Ward for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Williams JA. I agree with the orders proposed by his Honour, and with his reasons.

WILLIAMS JA: After a trial in the District Court the appellant was ordered to pay to the respondent the sum of $92,168.93. The basis of the claim was a contract of employment dated 29 March 2002. The respondent recovered $11,518.06 as payment in lieu of notice and $62,328.82 for long service leave; interest on those amounts was added to arrive at the judgment sum.

On the appeal, counsel for the appellant contended that the learned trial judge erred in awarding the respondent anything. The main contention was that the respondent terminated the contract of employment by submitting the letter of 5 February 2003, and that, given the terms of the contract of employment and the provisions of the Industrial Relations Act1999 (Qld), he was not, in the circumstances, entitled to either of the amounts referred…

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: [2006] QCA 215
Decision Date: 16 June 2006

CaseChat Overview and Summary

The court in Cook v CFP Management Pty Ltd considered the dispute between the appellant, CFP Management Pty Ltd, and the respondent, Mr Cook, regarding the termination of his employment. The primary issue was whether Mr Cook was constructively dismissed when the company sold its stockbroking business to another entity, and whether he was entitled to recover money for long service leave or money in lieu of notice. The case originated in the Federal Circuit Court and was subsequently appealed to the Full Court of the Federal Court.

The central legal questions were whether the respondent's termination of his employment was due to the conduct of the employer, constituting constructive dismissal, or the conduct of the employee. The respondent argued that the change in ownership of the business and the new terms and conditions offered by the new employer amounted to a breach of his employment contract, justifying his termination. The court had to determine whether these actions constituted a fundamental breach warranting termination by the employee.

In its reasoning, the Full Court found that Mr Cook had not been constructively dismissed. The court held that the offer of continued employment under the new terms did not constitute a fundamental breach of the employment contract. Additionally, the court determined that Mr Cook was not entitled to recover money for long service leave or money in lieu of notice. The appeal was allowed, the original judgment was set aside, and the action was dismissed with costs. The respondent was ordered to pay the appellant's costs of and incidental to the appeal, to be assessed on the standard basis.

Orders

Orders of the court

1.Appeal allowed

2.The judgment at first instance is set aside and in lieu thereof, order that the action be dismissed with costs

3.Respondent to pay the appellant’s costs of and incidental to the appeal, to be assessed on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cook v CFP Management P/L [2006] QCA 215
PARTIES:	DAVID JAMES COOK (plaintiff/respondent) v CFP MANAGEMENT PTY LTD ACN 086 839 750 (defendant/appellant)
FILE NO/S:	Appeal No 10201 of 2005 DC No 1369 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	31 May 2006
JUDGES:	de Jersey CJ, Williams JA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1.Appeal allowed 2.The judgment at first instance is set aside and in lieu thereof, order that the action be dismissed with costs 3.Respondent to pay the appellant’s costs of and incidental to the appeal, to be assessed on the standard basis
CATCHWORDS:	EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – DURATION AND TERMINATION OF EMPLOYMENT – TERMINATION BY OR AT INSTANCE OF EMPLOYEE – where the appellant (employer) and the respondent (employee) had entered into a contract of employment – where the appellant sold its stockbroking business to another company – where the respondent had been offered a job on new terms and conditions with the new employer – where the respondent claimed that this change in ownership violated the contract of employment and as such the respondent terminated his employment with the appellant – whether the termination of the employment contract was brought about by the conduct of the employer (“constructive dismissal”) or the conduct of the employee – whether the respondent was entitled to recover money for long service leave or money in lieu of notice Industrial Relations Act1999 (Qld), s 43, s 43(4)(c)(i) Spencer v Dowling and Anor [1997] 2 VR 127, applied
COUNSEL:	D J S Jackson QC, with T J Bradley, for the appellant G Beacham for the respondent
SOLICITORS:	Blake Dawson Waldron for the appellant Cooper Grace Ward for the respondent