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

Jurisdiction:	WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT	Citation No:	[2003] WASCA 175
Case No:	IAC:3/2003	Heard:	3 JUNE 2003
Coram:	SCOTT J (DEPUTY PRESIDING JUDGE) PARKER J PULLIN J	Delivered:	8/08/03
No of pages:	14	Judgment Part:	1 of 1
Result:	IAC 3 allowed IAC 6 dismissed
Category:	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…

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: [2003] WASCA 175
Decision Date: 8 AUGUST 2003

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

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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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