Intico (Vic) Pty Ltd v Walmsley

[2004] VSCA 90

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3768 of 2002

INTICO (VIC.) PTY. LTD. & ORS
	Appellants
v.
PETER WALMSLEY	Respondent

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JUDGES:	ORMISTON, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 April 2004
DATE OF JUDGMENT:	21 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 90

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Contract – Wrongful dismissal – Summary dismissal for misconduct – Employee has no right to be heard – Employer’s obligation of good faith not breached by summary dismissal  for cause of an unwanted employee.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J.G. Judd, Q.C.	Tresscox
For the Respondent	Mr C.B. O’Grady	Mason Sier Turnbull

ORMISTON, J.A.:

1. In this appeal I have had the benefit of reading the admirably succinct judgment of Buchanan, J.A., with whose reasons and conclusions I agree, so that the appeal must be allowed and the matter remitted for further trial in the County Court. 

1. I would add only these observations.  Lest there be any misunderstanding as to the functions of the Court of Appeal, in particular in relation to the allegations which form the first two incidents relied upon by the appellant and referred to by Buchanan, J.A. in paragraphs [7] and [8] of his judgment, this Court’s role is not to retry issues of fact already determined by a trial court.  It is possible that members of this Court might have reached different conclusions of fact from those reached by the trial judge as to those incidents, but the appellant must demonstrate error on the part of the judge in one form or another.  Of course it need not necessarily be an error of law but asserted errors of fact are the harder to sustain when the judge’s conclusions rest, as here, on his impression of a witness’s oral evidence, both that given in chief and upon cross-examination, and of his impressions of the totality of the evidence given in that way at the trial.  The relevant facts, as related by judges of appeal in their judgments, must necessarily take the form of a shortened and somewhat colourless account, such that it would be wrong for an appeal court, as it would be for others, to assess the precise circumstances in which those events took place without regard to the whole of the evidence given in the court room.  Statements which to some may carry an innuendo of sexual harassment, as was alleged in this case, may, upon fuller examination, turn out to be either innocent or merely vulgar.  The judge had the benefit of all that evidence and it was his function to assess it, so that, in the absence of demonstrated error, it is not for this Court to reassess it.  His conclusions as to the other issues, however, involved questions of mixed law and fact and have been shown to be wrong. 

1. Secondly, I agree entirely with Buchanan, J.A. that at common law and in the circumstances of the present employer/employee relationship, there could not have been implied a duty…