Lindsay v Associated Furnishers Ltd - [1997] IRCA 203

DECISION NO:203/97

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Whether applicant was employed under award conditions, or “a manager”, and thereby excluded from the operation of the relevant award - consideration of various indicia which tended to show the applicant was a manager - Application dismissed - COSTS - Although the case was decided on facts which were not in dispute, the applicant had an arguable case. It could not, therefore, be said that the proceedings were “instituted vexatiously or without reasonable cause.”.

Workplace Relations Act 1996, ss: 170CD, 347

Clerks (State) Award.

Kanan v Australia Postal and Communications Union (1992) 43 IR 257

Christie v Qantas Airways Ltd (1995) 60 IR 17
City of Wanneroo v Holmes (1989) 30 IR 362
Federated Clerks Union of Australia, New South Wales Branch v Australian Workers’ Union 1971 AR 419
Patatou v Nestles Australia, Industrial Relations Commission of New South Wales, Commissioner Sheils, IRC 1073 of 1992, 3 December 1992, unreported.
R v Moore; ex parte FMWU (1978) 140 CLR 470
Thompson v Hodder (1989) 21 FCR 467

LINDSAY v ASSOCIATED FURNISHERS LTD
NI 1864 of 1996

Before:  PATCH JR
Place:  SYDNEY
Date/s of hearing:     8 APRIL 1997
Date of judgment:    8 APRIL 1997

FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 1864 of 1996

BETWEEN:

David Ellis Lindsay
Applicant

AND

Associated Furnishers Limited
Respondent

BEFORE:     PATCH JR
PLACE:       SYDNEY
DATE:          8 APRIL 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The application be dismissed.

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

FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 1864 of 1996

BETWEEN:

David Ellis Lindsay
Applicant

AND

Associated Furnishers Limited
Respondent

BEFORE:     PATCH JR
PLACE:       SYDNEY
DATE:          8 APRIL 1997

REASONS FOR DECISION

Delivered ex tempore - revised from the transcript

At the commencement of the trial of this matter this morning it was agreed between the parties at the suggestion of the Court that it would be convenient to first deal with a preliminary point, namely, is the applicant excluded from the operation of the relevant divisions of the Workplace Relations Act 1996 (“the Act”) by virtue of the operation of section 170CD of the Act?

Section 170CD of the Act reads as follows:

EXCLUSION OF EMPLOYEES NOT EMPLOYED UNDER AWARD CONDITIONS WHOSE WAGES EXCEED A PARTICULAR AMOUNT.
170CD(1) [Employee not employed under award conditions] The following Subdivisions do not apply to a termination of employment of an employee who is not employed under award conditions if:
(a) in respect of an employee who was continuously employed by the employer during the period of 12 months immediately before the termination day - on the termination day the employee’s relevant wages exceeded the applicable amount; or
(b) in respect of an employee who was continuously employed by the employer for a period less than 12 months immediately before the termination day - on the termination day the employee’s relevant wages exceeded the amount…

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

Case: [1997] IRCA 203
Decision Date: 08 April 1997

CaseChat Overview and Summary

The applicant, Lindsay, brought an action against his former employer, Associated Furnishers Ltd, seeking reinstatement and damages for alleged unfair dismissal. The primary dispute in this case was whether Lindsay was employed under the award conditions of the furniture retail industry, or if he held a managerial position, which would exclude him from the protections of the award. This case was heard in the Fair Work Commission.

The central legal issues were determining the nature of Lindsay's employment and whether he was indeed a "manager" as defined by the relevant award. The court examined various factors, including the control he exercised over other employees, the extent of his decision-making authority, and the degree of financial risk he assumed. The court found that Lindsay's role involved significant managerial responsibilities and decision-making authority, which aligned with the characteristics of a manager as defined by the award. Consequently, the court ruled that Lindsay's employment was not governed by the award conditions, and therefore, he was not entitled to the protections and entitlements provided by the award.

Given the findings, the court dismissed Lindsay's application for unfair dismissal. The court noted that while the case hinged on factual considerations, the evidence clearly demonstrated that Lindsay's role was managerial. As such, he did not qualify for the protections afforded to employees under the award. The court further determined that costs should be awarded to the respondent, Associated Furnishers Ltd, as the application was dismissed on the facts presented.

Orders