Daw, William Robert v Flinton Pty Ltd - [1997] FCA 1180

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - EMPLOYMENT CONTRACT - EMPLOYMENT RELATIONSHIP - JURISDICTION - whether TERMINATION OF EMPLOYMENT at the initiative of the employer - CONSTRUCTIVE DISMISSAL - CONTRACTUAL ENTITLEMENTS - implied TERM - accrued leave - whether breach of implied duty to maintain trust and confidence - RESIGNATION.

Industrial relations Act 1988 (now Workplace Relations Act 1996) - ss 170EA, 170EA(3), 418 & 430.

Nelson v Scholle Industries (1995) 64 IR 9.
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
Burazin v Blacktown City Guardian (1996) 142 ALR 144.
Carrigan v Darwin City Council (unreported, IRCA No. 101 of 1997, von Dousa J, 20 March 1997)
APESMA V David Graphics Pty Ltd (unreported, IRCA No. 410 of 1995, Wilcox J, 12 July 1995)
Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154.
Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99.
Jackson v Elmerside (unreported, IRCA No. 27 of 1997, RD Farrell JR, 3 February 1997)
Slifka v JW Saunders Pty Ltd (1995) 67 IR 316.
Western Excavating (E.C.C) Ltd v Sharp [1978] 1 QB 761.
Grout v Gunnedah Shire Council (1994) 57 IR 243.
Woods v WM Car Services (Peterborough) Limited [1981] IRLR 347.
Byrne v Australian Airlines Ltd (1995) 61 IR 32.

WILLIAM ROBERT DAW & LINDA DAW -v- FLINTON PTY LTD
DI 1054 & 1055 OF 1996

JUDICIAL REGISTRAR: R.D. FARRELL JR
DATE: 24 OCTOBER 1997
PLACE: PERTH (HEARD IN DARWIN)

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

DI 1054 & 1055 of 1996

BETWEEN: WILLIAM ROBERT DAW
FIRST APPLICANT

LINDA DAW
SECOND APPLICANT

AND: FLINTON PTY LTD
RESPONDENT

JUDICIAL
REGISTRAR:

R.D. FARRELL, J.R.

DATE OF ORDER:

24 OCTOBER 1997

WHERE MADE:

PERTH (HEARD IN DARWIN)

THE COURT ORDERS THAT:

Within 14 days of the date of making these orders the respondent pay to the first applicant the sum of $1,930.00, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.

Within 14 days of the date of making these orders the respondent pay to the second applicant the sum of $1,930.00, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.

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

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

DI 1054 & 1055 of 1996

BETWEEN:

WILLIAM ROBERT DAW
FIRST APPLICANT

LINDA DAW
SECOND APPLICANT

AND:

FLINTON PTY LTD
RESPONDENT

JUDICIAL REGISTRAR:

R.D. FARRELL J.R.

DATE:

24 OCTOBER 1997

PLACE:

PERTH (HEARD IN DARWIN)

REASONS FOR DECISION

The applicants, Mr William and Mrs Linda Daw, were employed in November 1988 to open and manage a roadhouse, now known as the Warburton Roadhouse, which was located near an aboriginal community at Warburton. Warburton is in Western Australia near the intersection of the borders of Western Australia,…

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: [1997] FCA 1180
Decision Date: 24 OCTOBER 1997

CaseChat Overview and Summary

The case of Daw, William Robert v Flinton Pty Ltd was heard in the Federal Court of Australia, Western Australia District Registry. The applicants, Mr William and Mrs Linda Daw, sought compensation for what they considered to be the unlawful termination of their employment by Flinton Pty Ltd, the respondent. They filed this application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996. The applicants sought compensation for unpaid contractual entitlements as well. Flinton Pty Ltd contended that the applicants were not entitled to bring the claim within the required 14 days of receipt of written notice of termination, as stipulated by Section 170EA(3). They also argued that the applicants resigned from their employment, and that there was therefore no termination at the initiative of the employer. The primary legal issue in this case was whether the termination of the applicants' employment was at the initiative of the employer, as defined under the Workplace Relations Act 1996. The court found that the applicants' employment was not terminated at the initiative of the employer, and dismissed their claim under Section 170EA. However, the court did find that the applicants were entitled to unpaid contractual entitlements. The applicants were awarded the sum of $1,930.00 each, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid. Costs were not awarded.

Orders