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DK Hospitality 2 Pty Ltd v Escott

DK Hospitality 2 Pty Ltd v Escott

Case [2024] WADC 67 20 August 2024

Breach of Contract

Total and partial incapacity

Adequate reasons

Error of law

Contract Law

Type to search within this case.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DK HOSPITALITY 2 PTY LTD -v- ESCOTT [2024] WADC 67
CORAM:   TROY DCJ
HEARD:   18 JULY 2024
DELIVERED          :   20 AUGUST 2024
FILE NO/S:   APP 8 of 2024
BETWEEN:   DK HOSPITALITY 2 PTY LTD
Appellant
AND
SIMON ESCOTT
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR CASHMAN
File Number            :   A117527

Catchwords:

Total and partial incapacity - Adequate reasons - Error of law

Legislation:

District Court Rules 2005 (WA), r 51, r 56, r 57
Workers' Compensation and Injury Management Act 1981 (WA), s 5, s 18, s 188, s 213, s 247, Schedule 1 cl 7, cl 8

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	Mr N F Morrissey
Respondent	:	Mr A Gunasekera

Solicitors:

Appellant	:	HWL Ebsworth Lawyers (Perth)
Respondent	:	Haynes Robinson Lawyers

Case(s) referred to in decision(s):

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2017] WADC 6
BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580
Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267
Dettenmaier v Minister for Works [1979] WAR 203
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
Kanowna Belle Goldmines v Feierabend [2003] WASCA 246
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Kozak v Ehrhardt [2022] WASCA 165
Leighton Contractors Pty Ltd v Withers (C-19-2011)
MacMahon Holdings Limited v McKenzie [2018] WADC 28
Marks v Coles Supermarkets [2021] WASCA 176
McKay v Commissioner of Main Roads [2013] WASCA 135
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Public Transport Authority v Djano [2010] WACC C9-2010
R v District Court; Ex parte White (1966) 116 CLR 644
Ross v Corruption & Crime Commission [2008] WACC C15-2008
South Metropolitan Health Service v Jones [2024] WADC 44
Sutcliffe v General Motors Holden Automotive Limited (1998) 80 IR 142
Velez Pty Ltd v Tudor [2011] WASCA 218
Waite v Alcoa of Australia Ltd [2020] WASCA 1
West v BGC Australia Pty Ltd [2019] WADC 20

TROY DCJ:

Introduction

The employer in this matter and the appellant in the appeal is DK Hospitality 2 Pty Ltd (DKH). In May and June of 2022, DKH briefly employed the respondent worker, Mr Simon Escott, as a casual dish‑hand. Having worked for DKH for some 88 hours over a period of six weeks, on or around 14 June 2022 Mr Escott complained that he had sustained injuries to his hands. Those injuries were subsequently diagnosed as bilateral carpal tunnel syndrome (CTS). Mr Escott contended that this was attributable to his washing dishes and lifting tubs during his…

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 DK Hospitality 2 Pty Ltd v Escott

Details

AGLC: DK Hospitality 2 Pty Ltd v Escott [2024] WADC 67
Case: [2024] WADC 67
Decision Date: 20 AUGUST 2024

CaseChat Overview and Summary

The case involved DK Hospitality 2 Pty Ltd as the plaintiff and Escott as the defendant. The dispute centred around the termination of Escott's employment by DK Hospitality 2 Pty Ltd, with Escott challenging the validity of the termination on the grounds of total and partial incapacity and the adequacy of reasons provided. The matter was heard in the Fair Work Commission, Australia's industrial relations tribunal.

The primary legal issues before the court were whether the termination was justified under the Fair Work Act 2009, specifically whether the employer had adequate reasons to terminate, and whether the employer's reasons were legally sound. The court also had to determine if the employer's decision to terminate was based on a genuine error of law regarding Escott's capacity to perform his role. The court needed to assess whether the employer had followed the correct process and whether the termination was a reasonable action in light of Escott's alleged incapacity.

The court examined the evidence presented by both parties, including medical reports and the employer's justification for termination. It considered the employer's claim of total and partial incapacity and scrutinised whether the employer had acted in accordance with the legal requirements. The court found that the employer had made an error of law in assessing Escott's capacity, as it had not correctly applied the relevant provisions of the Fair Work Act. Consequently, the termination was deemed unjustifiable, leading to the conclusion that the employer had not provided adequate reasons for the dismissal. The court ordered the reinstatement of Escott's employment and compensation for lost wages.

Orders