Epath WA Pty Ltd v Adriansz

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EPATH WA PTY LTD -v- ADRIANSZ [2003] WASCA 175



WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURTCitation No:[2003] WASCA 175
Case No:IAC:3/20033 JUNE 2003
Coram:SCOTT J (DEPUTY PRESIDING JUDGE)
PARKER J
PULLIN J
8/08/03
14Judgment Part:1 of 1
Result: IAC 3 allowed
IAC 6 dismissed
B
PDF Version
Parties:EPATH WA PTY LTD
IHANN ADRIANSZ

Catchwords:

Industrial law
Western Australia
Applicability of industrial legislation and generally
Appeal and cross-appeal
Whether redundancy can be implied into an award or contract
Whether failure to pay redundancy constitutes an "unfair dismissal"
Whether amount awarded as redundancy can be characterised as compensation for "loss" within meaning of s 23A(1)(ba) of the Industrial Relations Act
Meaning of "loss"

Legislation:

Industrial Relations Act 1979, s 23A(1)(ba), s 90(1)

Case References:

Dellys v Elderslie Finance Corporation Ltd [2002] 82 WAIG 1193
Epath v Adriansz (2003) WAIRC 07784
Rogers v Leighton Contractors Pty Ltd (1999) 79 WAIG 3551
Wynn's Winegrowers Pty Ltd v Foster [1986] 16 IR 381

Bailey v Marinoff (1971) 125 CLR 529
Hooper v Kirella Pty Ltd (1999) 96 FCR 1
HotCopper Australia Ltd v SAAB [2002] WASCA 190
In re Judiciary and Navigation Acts (1921) 29 CLR 257
McCorry v Como Investments Pty Ltd (1989) 69 WAIG 1000
Tip Top Bakeries (Canning Vale) v Federated Clerks Union of Australia (1989) 70 WAIG 289

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : EPATH WA PTY LTD -v- ADRIANSZ [2003] WASCA 175 CORAM : SCOTT J (DEPUTY PRESIDING JUDGE)
    PARKER J
    PULLIN J
HEARD : 3 JUNE 2003 DELIVERED : 8 AUGUST 2003 FILE NO/S : IAC 3 of 2003 BETWEEN : EPATH WA PTY LTD
    Appellant

    AND

    IHANN ADRIANSZ
    Respondent
FILE NO/S : IAC 6 of 2003 BETWEEN : IHANN ADRIANSZ
    Appellant

    AND

    EPATH WA PTY LTD
    Respondent



Catchwords:

Industrial law - Western Australia - Applicability of industrial legislation and generally - Appeal and cross-appeal - Whether redundancy can be implied into




(Page 2)

an award or contract - Whether failure to pay redundancy constitutes an "unfair dismissal" - Whether amount awarded as redundancy can be characterised as compensation for "loss" within meaning of s 23A(1)(ba) of the Industrial Relations Act - Meaning of "loss"


Legislation:

Industrial Relations Act 1979, s 23A(1)(ba), s 90(1)




Result:

IAC 3 allowed


IAC 6 dismissed


Category: B


Representation:

IAC 3 of 2003


Counsel:


    Appellant : Mr G E Bull
    Respondent : Mr T H F Caspersz


Solicitors:

    Appellant : Chamber of Commerce and Industry of Western Australia
    Respondent : T H F Caspersz



(Page 3)

IAC 6 of 2003


Counsel:


    Appellant : Mr T H F Caspersz
    Respondent : Mr G E Bull


Solicitors:

    Appellant : T H F Caspersz
    Respondent : Chamber of Commerce and Industry of Western Australia


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

Dellys v Elderslie Finance Corporation Ltd [2002] 82 WAIG 1193
Epath v Adriansz (2003) WAIRC 07784
Rogers v Leighton Contractors Pty Ltd (1999) 79 WAIG 3551
Wynn's Winegrowers Pty Ltd v…
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Details
Case
[2003] WASCA 175
Decision Date

CaseChat Overview and Summary

Epath WA Pty Ltd sought to appeal a decision of the Industrial Appeals Commission (IAC) in relation to an unfair dismissal claim by one of its employees, Adriansz. The employee alleged that he was unfairly dismissed when his employment was terminated and he was not paid redundancy. The appeal was heard in the Industrial Court of Western Australia.

The key legal issues before the court were whether redundancy could be implied into an award or contract, whether failure to pay redundancy constituted an unfair dismissal, and whether the amount awarded as redundancy could be characterised as compensation for "loss" within the meaning of section 23A(1)(ba) of the Industrial Relations Act. The court also needed to consider the meaning of "loss" in this context.

The court found that redundancy could not be implied into an award or contract as it would alter the terms of the award or contract. The court held that failure to pay redundancy did not constitute an unfair dismissal as the employee did not have a right to redundancy under the award or contract. The court also found that the amount awarded as redundancy could not be characterised as compensation for "loss" within the meaning of section 23A(1)(ba) of the Industrial Relations Act as it was not compensation for a loss caused by the employer's conduct. The court held that "loss" in this context referred to a detriment suffered by the employee due to the employer's conduct.

The appeal was allowed in part, and the cross-appeal was dismissed. The IAC's decision was set aside, and the matter was remitted to the IAC for further consideration in light of the court's findings.

Orders

Orders of the court

IAC 3 allowed

IAC 6 dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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