Irving v Kleinman

Case [2005] NSWCA 116
CITATION:

Irving & Ors. v. Kleinman [2005] NSWCA 116
HEARING DATE(S):

22 March 2005
 
JUDGMENT DATE: 


18 April 2005

JUDGMENT OF:

Hodgson JA at 1; Ipp JA at 36; Tobias JA at 37
DECISION:

1. Leave to appeal granted, Notice of Appeal to be filed within 7 days. 2. Appeal allowed. 3. Paragraphs 16, 17, 19 and 20 of the Amended Statement of Claim struck out, the opponent to have liberty to re-plead the contract and tort claims generally in accordance with these reasons. 4. Opponent to pay claimants' costs of the leave application and the appeal, and to have a Suitors' Fund Act certificate if otherwise eligible.
CATCHWORDS:

EMPLOYMENT LAW - Employment and conditions of service - Contract of employment - Implied terms - Terms concerning relationship of trust - Whether applies to disciplinary proceedings - Whether employer might have a duty of care relevant to such proceedings.
LEGISLATION CITED:

Teaching Services Act 1980, ss.37, 38, 82-84
Teaching Services (Education Teaching Service) Regulation 1994, regs.13-16
CASES CITED:

Eastwood v. Magnox Electric plc [2004] 3 WLR 322
General Steel Industries Inc. v. The Commissioner for Railways (NSW) (1964) 112 CLR 125
Heptonstall v. Gaskin (no.2) [2005] NSWSC 30
Hollingsworth v. Commissioner of Police (1999) 47 NSWLR 151
State of New South Wales v. Paige [2002] NSWCA 235, 60 NSWLR 371
PARTIES:

Paul Irving - 1st claimant
Jennifer Williamson - 2nd claimant
State of New South Wales - 3rd claimant
Monica Kleinman - opponent

FILE NUMBER(S):

CA 40458/04
COUNSEL:

Mr. P. Menzies QC with E. Krug for the claimants
Mr. D. Kennedy SC with A. Hourigan for the opponent
SOLICITORS:

I.V. Knight, Crown Solicitor, for claimants
MacMahon Associates, Surry Hills for opponent

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

DC 6616/04

LOWER COURT JUDICIAL OFFICER:

Robison DCJ




                          CA 40458/04
                          DC 6616/04

                          HODGSON JA
                          IPP JA
                          TOBIAS JA

                          Monday 18 April 2005
IRVING & ORS. V. KLEINMAN
Judgment

1 HODGSON AJ: On 18 May 2004, Robison DCJ made orders disposing of a Notice of Motion brought by the claimants (Mr. Irving, Ms. Williamson and the State of New South Wales), in which he did not strike out paragraphs 16-21 of the opponent’s Amended Statement of Claim, as had been sought by the claimants. The claimants seek leave to appeal from that part of the primary judge’s decision.

2 The application for leave to appeal has been argued on the basis that, if leave is granted, the appeal will be disposed of without further submissions.


      CIRCUMSTANCES

3 The circumstances giving rise to the opponent’s claim, as in substance alleged in paragraphs 1-15 of her Amended Statement of Claim, are as follows.

4 The opponent was at material times employed by the Department of Education. She had been a school teacher since about 1970, and worked mainly in the area of counselling. In 1996, she was appointed as the District Guidance Officer of the Department in respect of the Central Coast region.

5 In 1984, the then Director of Education had…

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AGLC
Irving v Kleinman [2005] NSWCA 116
Case
[2005] NSWCA 116
Decision Date

CaseChat Overview and Summary

The New South Wales Court of Appeal considered an appeal by Irving (the claimant) against Kleinman (the employer) concerning the employer's conduct during disciplinary proceedings. The dispute centred on whether an employer owes a duty of care to an employee in the conduct of such proceedings, particularly in relation to implied terms concerning the relationship of trust and confidence.

The primary legal issues before the Court of Appeal were whether an employer has an implied contractual duty to conduct disciplinary proceedings fairly and reasonably, and whether an employer owes a duty of care in tort to an employee regarding the manner in which disciplinary proceedings are conducted. The Court was required to determine if these duties extended to ensuring the proceedings themselves were conducted in a way that did not cause the employee foreseeable harm.

The Court of Appeal allowed the appeal, finding that an employer does owe a duty of care to an employee in the conduct of disciplinary proceedings. This duty arises from the implied term of trust and confidence in the employment contract, which requires employers to act reasonably and not to conduct themselves in a manner likely to destroy or seriously damage the relationship of trust and confidence. The Court held that this duty could extend to the manner in which disciplinary proceedings are conducted, and that a breach of this duty could give rise to a claim in tort. Consequently, certain paragraphs of the Amended Statement of Claim were struck out, with liberty to re-plead the contract and tort claims.

Orders

Orders of the court

1. Leave to appeal granted, Notice of Appeal to be filed within 7 days. 2. Appeal allowed. 3. Paragraphs 16, 17, 19 and 20 of the Amended Statement of Claim struck out, the opponent to have liberty to re-plead the contract and tort claims generally in accordance with these reasons. 4. Opponent to pay claimants' costs of the leave application and the appeal, and to have a Suitors' Fund Act certificate if otherwise eligible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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