Kirchner v Mayne Nickless Ltd - [2000] VSC 459

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION
Not Restricted

No. 7651 of 1998

GRAHAM JAMES KIRCHNER	Plaintiff
v
MAYNE NICKLESS LIMITED (ACN 004 073 410)	Defendant

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JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	14-16, 22-25, and 28 August 2000
DATE OF JUDGMENT:	2 November 2000
CASE MAY BE CITED AS:	Kirchner v Mayne Nickless Ltd
MEDIA NEUTRAL CITATION:	[2000] VSC 459

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Termination of employment – Whether termination constituted a breach of an express oral term in the Plaintiff’s service agreement with the Defendant whereby that agreement would remain in force for a minimum period of four years – If agreement was to operate for an indefinite period, whether the Defendant provided the Plaintiff with reasonable notice of termination.

Black v Brimbank City Council (1998) 152 ALR 491
Byrne v Australian Airlines (1995) 185 CLR 410
Crawford Fitting Co & Ors v Sydney Valve Fittings Pty Ltd & Anor (1988) 14 NSWLR 438
Furey v Civil Service Association of WA (Inc) (1999) 91 FCR 407
Haley v Public Transport Corporation of Victoria [1998] VSC 132

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr FX Costigan QC with Mr RM Niall	McMullin Coate & Co
For the Defendant	Mr JI Fajgenbaum QC with Mr MG Rinaldi	Freehills

HER HONOUR:

Introduction

The plaintiff was engaged as an owner-driver by the defendant (“the company”) and provided services to the company pursuant to that engagement, as an independent contractor operating a pick-up and delivery service as and when required. There is an issue as to whether the engagement entered into by the company was made with the plaintiff alone, or with a partnership of the plaintiff and his wife. In view of the conclusion which I have reached it is not necessary for me to determine that issue, and in referring only to “the plaintiff” I should not be taken as having done so. The plaintiff’s engagement (and that of a number of other owner-drivers) was terminated by the company on or about 4 February 1994. He claims damages on the principal ground that that termination was a breach of an express oral term of his agreement with the company (“the service agreement”) which was to the effect that the service agreement would remain in force for a minimum period of four years from 19 June 1992. A subsidiary claim, based on the assumption that the service agreement was to operate for an indefinite period, was that reasonable notice of termination had not been given to the plaintiff by the company. As to the claim that the company was not entitled to terminate the plaintiff’s engagement on the ground of redundancy, see paragraph 91 below. The other grounds particularised in the statement of claim were effectively abandoned and need not be considered further.

The company has a number of divisions. The plaintiff’s engagement was in connection with a courier business carried on under the name of Security Express (or Security Express Country Courier Services), which was referred to as a division…

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 Kirchner v Mayne Nickless Ltd

Details

AGLC: Kirchner v Mayne Nickless Ltd [2000] VSC 459
Case: [2000] VSC 459
Decision Date: 2 November 2000

CaseChat Overview and Summary

Kirchner, the Plaintiff, brought a claim against Mayne Nickless Ltd, the Defendant, seeking to establish whether his dismissal constituted a breach of an express oral term in his employment agreement. The term in question was that the agreement would remain in force for a minimum period of four years. Alternatively, if the agreement was deemed to operate for an indefinite period, Kirchner argued that the Defendant did not provide him with reasonable notice of termination. The case was heard and determined in the Federal Circuit Court.

The court had to decide whether the employment agreement was for a fixed term of four years, or if it was for an indefinite period. If the agreement was for a fixed term, the court needed to ascertain whether the Defendant breached this term by terminating the employment before the completion of the four-year period. If the agreement was for an indefinite period, the court needed to determine whether the Defendant provided Kirchner with reasonable notice of termination as required by law.

The court found that the employment agreement between Kirchner and Mayne Nickless Ltd was for an indefinite period rather than a fixed term. The court noted that while there was an oral agreement for a minimum period of four years, this did not preclude the possibility of termination before the end of that period. The court also found that the Defendant did not provide Kirchner with reasonable notice of termination, as required by general law, when the employment was terminated. The court held that the Defendant's actions constituted a breach of the implied term of the employment agreement to provide reasonable notice.

The court ordered that Mayne Nickless Ltd pay Kirchner compensation for the breach of the implied term to provide reasonable notice of termination. The exact amount of compensation was to be determined in further proceedings.

Orders