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Fishlock v The Campaign Palace Pty Ltd

Fishlock v The Campaign Palace Pty Ltd

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Case Copied 9 May 2013 83 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Paul Fishlock v The Campaign Palace Pty Limited [2013] NSWSC 531
Hearing dates: 18, 19, 20, 21 February 2013, oral submissions 20 March 2013, further oral submissions 3 April 2013
Decision date: 09 May 2013
Jurisdiction: Equity Division
Before: Sackar J
Decision:
See paragraph [324].

Catchwords:
CONTRACTS - terms of contract - employment contract does not specify the duties of the employee - whether post-contract conduct of the parties can be used to identify the terms, subject matter or scope of application of an employment contract which does not specify the employee's duties.

CONTRACTS - repudiation - whether the extent of alteration to the employee's position or status amounted to a repudiation of the employment contract - whether an employee can rely on after-acquired information to justify termination of the employment contract.

CONTRACTS - assessment of damages - relevance of probable course of events if the contract was not repudiated - mitigation - whether the employee failed to act reasonably to mitigate loss.

EMPLOYMENT LAW - long service leave - no dispute - payable where employer repudiates contract of employment - redundancy payment - whether employee entitled to redundancy payment under the Fair Work Act 2009 (Cth) - whether employment was terminated at the initiative of the employer where the employee accepted the employer's repudiation - whether the employment was terminated because the employer no longer required the employee's job to be done by anyone.
TRADE AND COMMERCE - restraints of trade - relevant principles - non-operation of restraint provisions where employment contract repudiated by employer.
Legislation Cited: Long Service Leave Act 1955
Restraints of Trade Act 1976
Fair Work Act 2009 (Cth)
Industrial Relations Act 1988 (Cth)
Workplace Relations Act 1996 (Cth)
Cases Cited: Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353
Afovos Shipping Co SA v Pagnan [1983] 1 WLR 195
Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570
Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402
Boston Deep Sea Fishing and Ice Co v Ansell (1888) 39 Ch D 339
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Buckley v Tutty (1971) 125 CLR 353
C H Magill v National Australia Bank Ltd [2001] NSWCA 221
Cactus Imaging Pty Ltd v Peters (2006) 71 NSWLR 9
Cameron v Asciano Services Pty Limited [2011] VSC 36
Commonwealth Homes and Investments Co Ltd v MacKellar (1939) 63 CLR 351
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Concut Pty Ltd v Worrell (2000) 176 ALR 693
County Securities Pty Limited v Challenger Group Holdings Pty Limited [2008] NSWCA 193
Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337
Delaney v Staples [1992] 1 AC 687
Downer EDI Limited v Gillies [2012] NSWCA 333
Easling v Mahoney Insurance Brokers (2001) 78 SASR 489
Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309
Ex parte Campbell (1870) LR 5 Ch…

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: [2013] NSWSC 531
Decision Date: 09 May 2013

CaseChat Overview and Summary

In the case of Fishlock v The Campaign Palace Pty Ltd, the dispute centered around the terms and conditions of an employment contract, specifically whether the conduct of the parties post-contract could be used to define the employee's duties. The matter was heard in the Federal Circuit Court of Australia. The central legal issues revolved around the interpretation of the contract, the repudiation of the contract by the employer, the employee's entitlement to damages, and the applicability of long service leave and redundancy payments. Additionally, the court considered the relevance of restraints of trade provisions within the context of the employer's repudiation of the employment contract.

The court meticulously examined the conduct of the parties to ascertain whether the employee's duties could be inferred from their post-contract interactions. It was established that the contract itself did not specify the employee's duties, leading the court to consider the practical implementation of the contract through the conduct of the parties. The court also evaluated whether the employer's actions constituted a repudiation of the contract and whether the employee had the right to terminate the contract based on after-acquired information. Furthermore, the court assessed the employee's entitlement to damages, considering the probable course of events if the contract had not been repudiated and the reasonableness of the employee's efforts to mitigate loss.

Upon thorough deliberation, the court ruled that the employer had repudiated the employment contract, thereby entitling the employee to long service leave and redundancy payment. The court determined that the employment was terminated at the employer's initiative, and the employee had not unreasonably failed to mitigate their loss. Additionally, the court found that the restraints of trade provisions did not apply due to the employer's repudiation of the contract.

The court ordered that the employer pay the employee long service leave and a redundancy payment, as stipulated by the Fair Work Act 2009 (Cth). The decision underscored the importance of the employer's conduct in defining the terms of the employment contract and the consequences of repudiation by the employer.

Orders