Daw v Flinton Pty Ltd

FEDERAL COURT OF AUSTRALIA

Industrial Law – Review – unlawful termination claim – whether the applicants’ employment terminated at the initiative of the employer or whether they resigned – whether constructive dismissal – whether expression of opinion by employer’s agent that applicants should resign constituted a breach of an implied term not to destroy or seriously damage the relationship of trust and confidence – claims dismissed

Workplace Relations Act 1996 (Cth), s 170EA
Industrial Relations Act 1988 (Cth), s 377, Part VIA

Mohazab v Dick Smith Electronics Pty Ltd (No.2) (1995) 62 IR 200 cited
Burazin v Blacktown City Guardian (1996) 142 ALR 144 cited
Woods v WM Car Services (Peterborough) Limited [1981] IRLR 347 cited
Blaikie v SA Superannuation Board (1995) 65 SASR 85 cited
Carrigan v Darwin City Council (unreported, IRCA No.101 of 1997, von Doussa J, 20 March 1997 cited

Matters No. DI1054 and DI1055 of 1996

LINDA DAW and WILLIAM ROBERT DAW v FLINTON PTY LTD

VON DOUSSA J
DARWIN
14 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	DI1054  of   1996 DI1055  of   1996

BETWEEN:

LINDA DAW
FIRST APPLICANT

WILLIAM ROBERT DAW
SECOND APPLICANT

AND:

FLINTON PTY LTD
RESPONDENT

JUDGE:

VON DOUSSA J

DATE OF ORDER:

14 AUGUST 1998

WHERE MADE:

DARWIN

THE COURT ORDERS THAT:

1. The claim of each applicant brought under s 170EA of the Workplace Relations Act 1996 (Cth) be dismissed.

2. No order as to costs.

Note:Settlement and entry of orders is dealt with in order 36 of the Federal Court rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT

REGISTRY

 DI1054 of 1996
DI1055 of 1996

BETWEEN:

LINDA DAW
FIRST APPLICANT

WILLIAM ROBERT DAW
SECOND APPLICANT

AND:

FLINTON PTY LTD
RESPONDENT

JUDGE:	VON DOUSSA J
DATE:	14 AUGUST 1998
PLACE:	DARWIN

REASONS FOR JUDGMENT

This is an application to review the decision of Judicial Registrar R Farrell on an application under s 170EA of the Workplace Relations Act 1996 (Cth), formerly the Industrial Relations Act 1988 (Cth) (“the Act”). The applicants, Mr William and Mrs Linda Daw, were employed between November 1988 and early April 1996 as managers of a roadhouse near an Aboriginal Community at Warburton. The roadhouse was owned by the respondent company which in turn was owned by the Community.

Their employment, to use a neutral term, came to an end on 12 April 1996. Following that, the proceedings in this Court were instituted. Mr and Mrs Daw contended that their employment had been terminated at the initiative of the respondent so as to give this Court jurisdiction to hear and determine the claim under s 170EA for unlawful termination of their employment. An additional claim was made by each of them in the ancillary jurisdiction of the Court for monies alleged to be due in respect of unpaid leave.

The Judicial Registrar heard evidence from three witnesses; Mr and Mrs Daw, and from Mr McLean who was the secretary of the respondent company.

The Judicial Registrar delivered extensive and detailed reasons. He…