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Ma v Expeditors International Pty Ltd

Ma v Expeditors International Pty Ltd

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Case Copied 30 June 2014 58 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Susanna Ma v Expeditors International Pty Ltd; Susanna Ma v Expeditors Pty Limited [2014] NSWSC 859
Hearing dates: 2, 3, 4, 5 & 6 June 2014
Decision date: 30 June 2014
Jurisdiction: Common Law
Before: Nicholas AJ
Decision:
See paragraphs 151, 152, and 153.

Catchwords:
EMPLOYMENT - contract of employment - termination by employer on payment of five weeks salary in lieu of notice - inadequate notice - period of reasonable notice - whether employees conduct involved actual or potential conflict of interest - whether employees conduct amounted to breach of contractual, fiduciary, and statutory duties - whether employer entitled to resist claim for damages for unfair dismissal.
DAMAGES - whether employee entitled to pro rata bonus - long service leave - calculation of "ordinary pay" under s 3(1) Long Service Leave Act 1955 - whether the amount of the worker's average weekly wage under s 3(1)(b) includes superannuation contributions.
Legislation Cited: Corporations Act 2001 (Cth)
Long Service Leave Act 1955 (NSW)
Long Service Leave Regulation 2011 (NSW)
Cases Cited: Bell Group Limited & Ors v Westpac Banking Corporation & Ors [2008] WASC 239
Franklins Pty Ltd v Metcash Trading Limited [2009] NSWCA 407
Hastings Deering (Australia) Ltd v Smith (2004) NTCA 13
Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41
Jongwaard v Dall (1992) SAIRC 11
Karacominakis v Big Country Developments Pty Ltd; [2000] NSWCA 313
Lyon v IOOF Victorian Friendly Society (1996) 230 IRC 27
May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112
Quinn v Jack Chia (Australia) Limited (1992) 1 VR 567
Rankin v Marine Power International Pty Ltd (2001) 107 IR 117
Reynolds v Southcorp Wines Pty Ltd (2002) 122 FCR 301
Rogan-Gardiner v Woolworths Limited (No. 2) [2010] WASC 290
Secretary of the Treasury v Public Service Association & Professional Officers' Association Amalgamated Union of NSW [2014] NSWCA 138
Settlement Agents Supervisory Board v Property Settlement Services Pty Ltd [2009] WASCA 143
Scott v Sun Alliance Australia Limited (1993) 178 CLR 1
Category: Principal judgment
Parties: Plaintiff: Susanna Ma
Defendant/Cross-Claimant: Expeditors International Pty Ltd
Representation: Counsel:
Plaintiff: K. Nomchong SC
Defendant/Cross-Claimant: A.R. Moses SC; Y.Shariff
Solicitors:
Plaintiff: Robert Patrick Higgins, Carroll & O'Dea
Defendant: Andrew Ball, DLA Piper Australia

File Number(s): 2012/277366; 2012/71891
Publication restriction: No

Judgment

The plaintiff is a former employee of the defendant. Her employment was terminated on 6 June 2011. In these proceedings, the plaintiff claims damages consequential upon her dismissal, including compensation in lieu of reasonable notice of termination of her contract of employment including a pro rata bonus, and accrued long service leave entitlements.

The defendant denies the claims. In its cross claim it claims the plaintiff engaged in misconduct prior to the termination of her employment which would have justified summary termination. It claims that in breach of her contractual, fiduciary, and statutory obligations, the plaintiff failed to disclose a conflict of interest and related party transactions as required under the defendant's policies and…

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: [2014] NSWSC 859
Decision Date: 30 June 2014

CaseChat Overview and Summary

The case of Ma v Expeditors International Pty Ltd involved the employee, Ma, who was employed by Expeditors International Pty Ltd. Ma's employment was terminated by the employer on payment of five weeks salary in lieu of notice. Ma brought an action claiming that the notice was inadequate, seeking the period of reasonable notice, and damages for unfair dismissal. The employer contended that Ma's conduct involved actual or potential conflicts of interest, amounting to a breach of contractual, fiduciary, and statutory duties, and thus, it was entitled to resist Ma's claim for damages. Additionally, Ma claimed entitlement to a pro rata bonus and long service leave, and sought clarification on the calculation of "ordinary pay" under s 3(1) of the Long Service Leave Act 1955, specifically whether the amount of the worker's average weekly wage under s 3(1)(b) includes superannuation contributions.

The court was required to determine whether the termination notice was adequate, the period of reasonable notice, and whether Ma's conduct amounted to a breach of her contractual, fiduciary, and statutory duties. The court also had to consider whether the employer was entitled to resist Ma's claim for damages for unfair dismissal. Furthermore, the court needed to address whether Ma was entitled to a pro rata bonus and long service leave, and clarify the calculation of "ordinary pay" under s 3(1) of the Long Service Leave Act 1955, specifically whether superannuation contributions are included in the worker's average weekly wage under s 3(1)(b).

The court found that the termination notice was inadequate and determined the period of reasonable notice. It held that Ma's conduct did not amount to a breach of her contractual, fiduciary, and statutory duties. Consequently, the employer was not entitled to resist Ma's claim for damages for unfair dismissal. The court also found that Ma was entitled to a pro rata bonus and long service leave. Regarding the calculation of "ordinary pay" under s 3(1) of the Long Service Leave Act 1955, the court concluded that the amount of the worker's average weekly wage under s 3(1)(b) does not include superannuation contributions. The court provided detailed calculations and reasoning for its determination of Ma's entitlements.

The court ordered that Ma be paid the period of reasonable notice, damages for unfair dismissal, a pro rata bonus, and long service leave. The court also clarified that superannuation contributions are not included in the calculation of the worker's average weekly wage under s 3(1)(b) of the Long Service Leave Act 1955. The decision was comprehensive, addressing all the issues raised by the parties and providing clear guidance on the applicable legal principles.

Orders