Giancaspro v SHRM (Australia) Pty Ltd
[2004] SASC 395
•10 December 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Civil)
GIANCASPRO v SHRM (AUSTRALIA) PTY LTD
Judgment of The Honourable Justice Anderson
10 December 2004
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT
Application for leave to appeal a decision of the Full Court of the Industrial Relations Court - representation by non-legal advocate allowed pursuant to R32.01 of the Supreme Court Rules - applicant submitted he continue to be employed during period when he did not present for work and was in receipt of Work Cover payments - Industrial Magistrate held that the applicant's employment ended when provided with a separation certificate by his employer - Industrial Magistrate failed to make any finding as to the applicant's alleged resignation - single Judge held that purported termination of employment was unlawful but nontheless sufficient to terminate employment - Full Court of the Industrial Court disagreed with both the Industrial Magistrate and the single Judge, and determined that the failure of the applicant to present for work, and his unfitness for work, resulted in the frustration of the employment contract - issue of frustration not raised in earlier decisions, nor in argument before the Full Court - possible unfairness to applicant - leave to appeal granted.
Industrial and Employee Relations Act 1994 (SA) ss191(1)(b); Workers Rehabilitation and Compensation Act 1986 (SA) ss58B(3), referred to.
GIANCASPRO v SHRM (AUSTRALIA) PTY LTD
[2004] SASC 395
ANDERSON J: This is an application for leave to appeal against a decision of the Full Court of the Industrial Court pursuant to s191 of the Industrial and Employee Relations Act 1994 (SA). Leave is sought pursuant to subsection 1(b).
I allowed Mr Mayers-Browne, who is not a legal practitioner, to have the conduct of the application for leave to appeal on behalf of the proposed appellant pursuant to Rule 32.01. Mr Mayers-Browne had acted as advocate for the appellant throughout the hearings in the Industrial Court.
Very briefly, the applicant made a claim for unpaid annual leave, long service leave and other allowances in the Industrial Court. The time in respect of which he claimed these entitlements was also a time during which he received compensation payments pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Work Cover Act”).
In the Industrial Court, the applicant maintained that he continued to be employed despite the fact that he had not actually presented for work since February 1990. His claims for the various entitlements alleged by him spanned a period from 1987 to 2002.
An Industrial Magistrate found that his employment had come to an end in March 1991 in that a separation certificate had been provided by the employer, after a conversation in which it was alleged that he resigned. He agreed that there was a conversation but he denied the content of it in relation to any suggestion of resignation. The Magistrate held that the separation certificate brought the contract of employment to an end, without making a finding as to the alleged resignation.
There was an appeal from this decision to a single Judge of the Industrial Court, and that Judge found that the purported termination of employment was unlawful because of s58B(3) of the Work Cover Act, but found nevertheless that it was sufficient to terminate the employment relationship.
From that decision, there was an appeal to the Full Court of the Industrial Court. The Full Court disagreed with the decisions of both the Industrial Magistrate and the single Judge, and held that the issuing of the separation certificate by the employer was not sufficient to support the finding that the contract of employment had been terminated.
The Full Court then determined that because the applicant had not presented himself for work since 6 February 1990, and because he had been unfit for work since that time, the time had been reached where it could be said that the contract of employment had been frustrated.
That was the first time that the question of frustration of the contract had been raised. Although clearly a matter of law, it had not been argued in any of the hearings including the Full Court of the Industrial Court.
Mr Mayers-Browne, on behalf of the applicant, prepared and lodged an application for leave to appeal. There are 13 specific grounds of appeal.
Ground 12 relates to the Full Court’s finding that the employment contract was frustrated. The Full Court of the Industrial Court canvassed some decisions in which it can be said that there is some uncertainty as to whether the doctrine of frustration can apply to a contract of employment.
Mr B. Duggan, for the respondent, argued that it does not matter because the decision on the facts means that such an argument is not necessary.
The applicant may be left in a difficult position because the Full Court of the Industrial Court has disagreed with the Judge appealed from. Furthermore, if the doctrine of frustration is not available in relation to an employment contract, or if the facts do not support the finding that the contract was frustrated, he is left with no finding on a vital conversation in which it is said that he resigned. Following the alleged resignation a separation certificate was issued. These were important aspects of both the decision of the Industrial Magistrate and the Judge who heard the appeal from the Industrial Magistrate.
In these circumstances, it seems to me that there is a potential for an unfairness, and it may be that the only solution would be a rehearing. This possibility was considered by the Full Court of the Industrial Court, but was unnecessary because of their finding that the contract was frustrated.
I am not convinced that the facts relied on for the frustration finding are all that clear cut. Having looked at the Full Court’s reasons, it is also my view that the question of whether there can be frustration of an employment contract is arguable. I would therefore grant leave to appeal on ground 12. In my view, all of the other grounds of appeal (except grounds 9 and 13) relate to questions of fact and I would not grant leave.
Appeal ground 13 complains that the Full Court erred in law in relation to a finding of fact. It is suggested that it is an error of law because there were no facts which could support the finding. Ground 13 relates to a complaint made in ground 9, namely, that the applicant denied that his employment had ever been terminated as a result of an alleged conversation in which he was a party. The Industrial Magistrate made no finding in this respect. The appellant’s denial in relation to the details of the conversation together with the fact that the other party to the alleged conversation, a Ms Gillott, was not called as a witness means that there is some force in the suggestion that leave should also be granted on grounds 9 and 13 combined. I would also give leave on these grounds.
Having given leave to the applicant to appeal to the Full Court, I expect that the Full Court may wish to revisit the question of the representation of the appellant by Mr Mayers-Browne during the appeal and to set out the guidelines for any such representation if appropriate.
Therefore, I grant leave to appeal in terms of grounds 9, 12 and 13 of the proposed notice of appeal.
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