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Logan v Otis Elevator Co Pty Ltd

Logan v Otis Elevator Co Pty Ltd

Case [1999] IRCA 4 22 June 1999

Unlawful Termination

Standing

Notice of Termination

Employment & Labour Law

Industrial Relations Law

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INDUSTRIAL RELATIONS COURT OF AUSTRALIA
Logan v Otis Elevator Co Pty Ltd [1999] IRCA 4
INDUSTRIAL LAW – Claim for entitlements under award – Appellant local representative of elevator company in country area and obliged to ensure emergency assistance always available – Whether appellant was entitled to “standing by” payments at ordinary time during all non-working hours – Appellant held entitled to overtime and “call back” payments – Whether employer was entitled to deduct difference between actual wages paid and moneys payable under award for ordinary time – What constitutes reasonable notice of termination of employment.
PRACTICE AND PROCEDURE – Appeal – Application for leave to appeal – Appeal against orders in relation to preliminary questions – Application made out of time because of confusion as to the identity of the court having jurisdiction – Leave granted.
Industrial Relations Act 1988 (now Workplace Relations Act 1996) s179
Rules of Industrial Relations Court of Australia, Order 52 rule 5
Poletti v Ecob (1989) 31 IR 321 followed
PETER ANTON CHARLES LOGAN v OTIS ELEVATOR COMPANY PTY LIMITED
N218 of 1999
WILCOX CJ, MARSHALL and MADGWICK JJ
22 JUNE 1999
SYDNEY

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N218 of 1999

ON APPEAL FROM A JUDGE OF THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

BETWEEN:

PETER ANTON CHARLES LOGAN
Appellant

AND:

OTIS ELEVATOR COMPANY PTY LIMITED
Respondent

JUDGES:

WILCOX CJ, MARSHALL and MADGWICK JJ

DATE OF ORDER:

22 JUNE 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Leave to appeal be granted.
2.The appeal be upheld in part.

3. The orders made by Moore J on 11 March 1999 be varied by:
(i)deleting order 4; and
(ii)adding to the said orders the following additional order:
8.The claim of the applicant, Peter Anton Charles Logan, be assessed on the bases that:
(a)the respondent, Otis Elevator Company Pty Limited, was bound to give to the said applicant three months’ notice of termination of employment or to pay three months’ salary in lieu of notice; and
(b)the said respondent is not entitled to set-off against its liability to make payments in respect of overtime and call-backs, pursuant to clause 14(a) and (d) of the National Metal and Engineering On-Site Construction Award 1989, the difference between the salary paid by the said respondent to the said applicant and the amount payable to him under the said award for ordinary time.

4. The appeal be otherwise dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N218 of 1999

ON APPEAL FROM A JUDGE OF THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

BETWEEN:

PETER ANTON CHARLES LOGAN
Appellant

AND:

OTIS ELEVATOR COMPANY PTY LIMITED
Respondent

JUDGES:

WILCOX CJ, MARSHALL and MADGWICK JJ

DATE:

22 JUNE 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT: Peter Anton Charles Logan seeks leave to appeal against three aspects of orders made by a judge of the…

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 Logan v Otis Elevator Co Pty Ltd

Details

AGLC: Logan v Otis Elevator Co Pty Ltd [1999] IRCA 4
Case: [1999] IRCA 4
Decision Date: 22 Jun 1999

CaseChat Overview and Summary

This appeal concerns the employment of Peter Anton Charles Logan by Otis Elevator Company Pty Limited. Mr Logan sought to appeal against three aspects of orders made by Moore J on 11 March 1999. The first issue is whether Mr Logan was entitled to recover, under s179 of the Industrial Relations Act 1988, payments for “standing by” while employed as Otis’ local representative at Orange. The second issue is whether the difference between the remuneration received by Mr Logan as Otis’ local representative at Orange and the amount payable to him for ordinary time pursuant to the National Metal and Engineering On-site Construction Industry Award 1989 should be set off against the payments due to Mr Logan under the award for “standing by”, if applicable, “call back” and overtime. The third issue is whether Moore J erred in holding that Otis’ payment of one month’s salary in lieu of notice constituted reasonable notice of the termination of Mr Logan’s employment. The Court agreed with Mr Logan on the “standing by” claim and the notice of termination, but disagreed on the set-off claim. The Court granted leave to appeal and upheld the appeal in part.

Orders