Gimbutt, Janice v Baiada Poultry - [1997] FCA 640

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - VALID REASON - CONDUCT AND PERFORMANCE - ONUS OF PROOF - OPPORTUNITY TO RESPOND - employee terminated while agreed period of evaluation and training incomplete - REMEDY - COMPENSATION - assessment of likelihood of employee being confirmed in position for which she was being evaluated and trained.

Workplace Relations Act 1996 (Cth) ss170DC, 170DE, 170EA, 170EDA, 170EE.

Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Sch 16
Termination of Employment Convention, 1982 Art. 7
Termination of Employment Recommendation, 1982 Paras 7 & 8.

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
Gibson v Bosmac Pty Ltd (1995) 60 IR 1
Drury v BHP Refractories Pty Ltd (1995) 62 IR 467
Byrne v Australian Airlines Ltd (1995) 131 ALR 422
Fryar v System Services Pty Ltd (1996) 137 ALR 321
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199
Perrin v Des Taylor Pty Ltd (1995) 58 IR 254
Gunnedah Shire Council v Grout (1995) 134 ALR 156
Brighouse Ltd v Bilderbeck [1995] 1 NZLR 158
Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370.
Reine v Rumpe (unreported, Industrial Relations Court of Australia, Madgwick J, 1 November 1995)

GIMBUTT v BAIADA POULTRY
VI 1302 of 1997

Before:  MURPHY JR
Place:  MELBOURNE
Date:  18 JULY 1997

IN THE FEDERAL COURT GENERAL DISTRIBUTION
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1302 of 1997

BETWEEN:

JANICE GIMBUTT
Applicant

AND

BAIADA POULTRY
Respondent

BEFORE:     MURPHY JR
PLACE:       MELBOURNE
DATE:          18 JULY 1997

MINUTES OF ORDERS

ORDERS:

The Court declares that the respondent has breached ss170DC and 170DE(1) of the Workplace Relations Act1996 (Cth);
The Court orders the respondent pay to the applicant the sum of $9,220.
The respondent may offset against the sum in paragraph 2 hereof any amounts remitted to the Australian Taxation Office on the applicant’s account.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI97/1302

BETWEEN:

JANICE GIMBUTT
Applicant

AND

BAIADA POULTRY
Respondent

BEFORE:     MURPHY JR
PLACE:       MELBOURNE
DATE:          18 JULY 1997

REASONS FOR DECISION

Introduction.

The applicant applies for a remedy under s170EA of the Workplace Relations Act 1996 (“the Act”). The matter comes before the Federal Court of Australia as a result of the provisions of Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996. Sch 16 transferred the Industrial Relations Court of Australia’s jurisdiction under the Industrial Relations Act 1988 (now retitled the Workplace Relations Act), and any proceedings where the court had not commenced the substantive hearing, to the Federal Court of Australia: items 63 and 64. Sch 16 also provided for the appointment of the judicial registrars of the Industrial Relations Court to a comparable office in the Federal Court for the balance of their respective terms, and preserved the delegation to them of the powers of the court in relation to…

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 Gimbutt, Janice v Baiada Poultry

Details

AGLC: Gimbutt, Janice v Baiada Poultry [1997] FCA 640
Case: [1997] FCA 640
Decision Date: 18 JULY 1997

CaseChat Overview and Summary

The case of Gimbutt v Baiada Poultry involved an application for a remedy under section 170EA of the Workplace Relations Act 1996. The applicant, Janice Gimbutt, alleged that her termination of employment by the respondent, Baiada Poultry, contravened sections 170DC (opportunity to respond) and 170DE (valid reason) of the Act, and sought compensation under section 170EE(2) of the Act. The court found that the respondent had breached sections 170DC and 170DE(1) and ordered the respondent to pay compensation to the applicant in the amount of $9,220. The applicant's employment as assistant hatchery manager was terminated on 31 October 1996. The court found that the respondent had not provided the applicant with a valid reason to terminate her employment and had not given her an opportunity to respond to the allegations that formed the basis of the decision to terminate her employment. The court held that the respondent had breached the statutory obligations imposed on employers under sections 170DC and 170DE(1) and the international instruments extracted above. The court assessed the applicant's compensation based on her likely earnings in the four months following her termination, which totalled $9,220.

Orders