Re: REGINALD EDGAR GREGORY And: PHILIP MORRIS LIMITED No. V30 of 1987 Industrial Law (Cth) - Master and Servant 24 IR 397
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION Jenkinson(1), Wilcox(2) and Ryan(2) JJ.
CATCHWORDS
Industrial Law (Cth) - Award - Prohibition of harsh, unjust or unreasonable termination of employment - Whether clause void for uncertainty - Conduct amounting to breach - Relief obtainable by employee.
Master and Servant - Effect of industrial award upon contract of service - Implication of term that provisions of award as from time to time in force be incorporated in contract - Provision that termination of employment shall not be harsh, unjust or unreasonable - Remedies for breach - Assessment of damages.
HEARING
MELBOURNE
#DATE 14:4:1988
Counsel for the Applicant: Mr P. Harris
Solicitors for the Applicant: Howie & Maher
Counsel for the Respondent: Dr C. Jessup
Solicitors for the Respondent: Mallesons Stephen Jaques
ORDER
The appeal be allowed.
The orders made by Gray J be set aside and in lieu thereof it be ordered that:
(a) The respondent pay a penalty under s.119(1) of the Conciliation and Arbitration Act 1904 in the sum of four hundred dollars ($400), such penalty to be paid into the Consolidated Revenue Fund.
(b) Judgment be entered in favour of the appellant against the respondent for damages in the sum of thirty thousand dollars ($30,000).
(c) Each of the other claims for relief by the appellant in the proceeding be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Appeal from judgments of the Court constituted by a single judge.
In the proceeding in which the judgments were given several claims upon each of a number of causes of action were made by the appellant against the respondent. The circumstances which gave rise to the claims and descriptions of the claims are rehearsed in the reasons for judgment of Wilcox and Ryan JJ., which I have had the advantage of reading.
It is convenient to deal first with the appeal from the dismissal of the appellant's claim, pursuant to s.119 of the Conciliation and Arbitration Act 1904, for the imposition of a penalty on the respondent for the breach of sub-clause 6(d)(vi) of the Metal Industry Award 1984 - Part I alleged to have been committed by the termination of the appellant's employment by the respondent.
In considering whether the termination answered the description provided by one or other of the adjectives "harsh", "unjust" and "unreasonable" in sub-clause 6(d)(vi) it may be relevant to know whether sub-clause 6(a)(ii) of the Metal Trades Agreement gave expression to a term of the appellant's contract of employment in October 1986. In my opinion it did not. I think that provision to be, like sub-clause 6(a)(i), an agreement between the respondent and the two named Unions regulating the engagement of an employee…
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
AGLC
Gregory, Reginald Edgar v Philip Morris Ltd [1988] FCA 169 (24 IR 397)
Case
[1988] FCA 169
Decision Date
CaseChat Overview and Summary
In the case of Gregory v Philip Morris Ltd, the appellant sought relief for alleged unfair dismissal under the Conciliation and Arbitration Act 1904. The primary dispute arose from the termination of the appellant's employment and the procedural fairness afforded to him during the process. The matter was heard in the Federal Court of Australia, with Gray J presiding over the case initially.
The court was tasked with determining the validity of a clause in the employment contract that was argued to be void for uncertainty. Additionally, the court needed to ascertain whether the respondent's conduct amounted to a breach of the employment contract or if the termination was harsh, unjust, or unreasonable. Another critical issue was the scope of relief available to the appellant in the event that the termination was found to be unlawful.
In delivering the judgment, the court found that the clause in question was indeed void for uncertainty. The court further held that the respondent's conduct amounted to a breach of the employment contract, resulting in an unfair dismissal. The court concluded that the appellant was entitled to relief in the form of damages and a penalty under section 119(1) of the Conciliation and Arbitration Act 1904. The court allowed the appeal, set aside the orders made by Gray J, and ordered that the respondent pay a penalty of four hundred dollars and damages in the sum of thirty thousand dollars to the appellant. Other claims for relief by the appellant were dismissed.
Orders
Orders of the court
The appeal be allowed.
The orders made by Gray J be set aside and in lieu thereof it be ordered that:
(a) The respondent pay a penalty under s.119(1) of the Conciliation and Arbitration Act 1904 in the sum of four hundred dollars ($400), such penalty to be paid into the Consolidated Revenue Fund.
(b) Judgment be entered in favour of the appellant against the respondent for damages in the sum of thirty thousand dollars ($30,000).
(c) Each of the other claims for relief by the appellant in the proceeding be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.