Matthews v Cool or Cosy Pty Ltd - [2004] WASCA 114

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: MATTHEWS -v- COOL OR COSY PTY LTD & ANOR [2004] WASCA 114

CORAM: STEYTLER J (PRESIDING JUDGE)
PULLIN J
EM HEENAN J

HEARD: 1 APRIL 2004

DELIVERED : 1 JUNE 2004

FILE NO/S: IAC 1 of 2004

BETWEEN: ANTHONY GEOFFREY MATTHEWS
Appellant
AND
COOL OR COSY PTY LTD
CEIL COMFORT HOME INSULATION PTY LTD
Respondents

ON APPEAL FROM:
Jurisdiction              :  WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram   :SHARKEY P, COLEMAN CC, GREGOR C
Citation Number      :  [2003] WAIRC 10388
File Number            :  FBA 52 of 2002

Catchwords:

Industrial relations - Claim for unfair dismissal and claim for disallowed contractual benefits - Whether Commission may "deal with" claim for disallowed contractual benefit by awarding damages - Whether employee's contractual right to notice before termination of employment is a contractual "benefit"

Words and phrases - "Benefit"

Legislation:

Industrial Relations Act 1979, s 7, s 7(1a), s 23, s 23A, s 29(1)(b)(i) and s 29(1)(b)(ii)

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr A L Drake-Brockman
Respondents : Mr A J Power

Solicitors:

Appellant: Gadens Lawyers
Respondents : Jackson McDonald

Case(s) referred to in judgment(s):

Australian National Airlines Commission v Robinson [1977] VR 87
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Balfour v Travelstrength Ltd (1980) 60 WAIG 1015
BGC (Australia) Pty Ltd v Phippard (2002) 115 IR 430
Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410
City of Geraldton v Cooling [2000] WASCA 346
Fencott v Muller (1983) 152 CLR 570
Garbett v Midland Brick Co Pty Ltd (2003) 83 WAIG 893
HotCopper Australia Ltd v Saab (2002) 117 IR 256
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307
Poliniak v Kaiser Engineers Australia Pty Ltd (1991) 71 WAIG 2624
Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11
Siagian v Sanel Pty Ltd (1994) 122 ALR 333
Slee and Stockden Pty Ltd v Blewitt (1992) 47 IR 104
Spencer v Marchington [1988] IRLR 392 (Ch)
Turner v Australasian Coal & Shale Employees' Federation (1984) 6 FCR 177
Wardell v Donnybrook Stone Company (1992) 72 WAIG 2250
Waroona Contracting v Usher (1984) 64 WAIG 1500
Welsh v Hills (1982) 62 WAIG 2708
Westralian Farmers Ltd v Commonwealth Agricultural Service Engineers Ltd (In Liq) (1936) 54 CLR 361
Young v Queensland Trustees Ltd (1956) 99 CLR 560

Case(s) also cited:

Coles Myer Ltd (t/as Coles Supermarket) v Coppin, Ryan & Sweeting (1993) 11 WAR 20
Dellys v Elderslie Finance Corp Ltd (2002) 82 WAIG 1193
Epath WA Pty Ltd v Adriansz (2003) 83 WAIG 3048
Mountain v Winston Gellard Pty Ltd t/as Winston Gellard Real Estate (1994) 74 WAIG 2323
Robertson v Civil Service Association of Western Australia Inc (2003) 83 WAIG 3938
Ross v Chevron Australia Pty Ltd (2003) 84 WAIG 345
United Construction Pty Ltd v Birighitti (2003) 83 WAIG 434

STEYTLER…

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: [2004] WASCA 114
Decision Date: 1 JUNE 2004

CaseChat Overview and Summary

In the matter of Matthews v Cool or Cosy Pty Ltd, the applicant, Matthews, sought relief under the Fair Work Act 2009 (Cth) for unfair dismissal and disallowed contractual benefits against the respondent, Cool or Cosy Pty Ltd. Matthews alleged that his dismissal was unfair and that the company failed to provide him with adequate notice of termination, contravening the contractual terms of his employment. The case was heard by the Fair Work Commission, which had to determine whether it could grant monetary damages for breach of contract when dealing with a disallowed contractual benefit claim under section 29(1)(b)(ii) of the Act.

The primary legal issues before the court were whether the Commission could award damages for breach of contract in the context of a disallowed contractual benefit claim and whether an employee's contractual right to notice before termination constituted a contractual "benefit" within the meaning of the Act. The court had to consider whether the Commission's powers under section 23(1) to deal with such claims were limited to ordering reinstatement or re-engagement or if they included the authority to award monetary damages.

The court concluded that the Commission had the authority to grant monetary relief, including damages for breach of contract, when dealing with a disallowed contractual benefit claim. The court found that the employee's right to notice before termination constituted a contractual benefit and that the Commission could award damages for the employer's failure to provide adequate notice. The court rejected the argument that the Commission's powers were limited to ordering reinstatement or re-engagement, stating that there was no limitation on the monetary relief that could be granted.

In light of the court's findings, the Fair Work Commission was ordered to award Matthews damages for breach of contract for the employer's failure to provide adequate notice of termination. The Commission was also directed to address the issue of unfair dismissal and determine whether the dismissal was indeed unfair, with appropriate relief to follow.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PULLIN J STEYTLER J

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Ratio Decidendi

Legal Principle Established

Established by: PULLIN J, STEYTLER J

This appeal involves the common presentation of a claim for relief by an employee under s 29(1)(b)(ii) of the Act being made in combination with a claim for relief under s 23A for alleged harsh, oppressive or unfair dismissal. No doubt this is the most frequent mode of resort to the power of the Commission under s 29(1)(b)(ii) but that practice should not obscure the fact that an application under the subsection may be made by an employee, otherwise than in conjunction with a claim for relief for alleged unfair dismissal, either during the continuation of the employee/employer relationship or after the termination of that relationship by a dismissal - see s 7(1)(a). Accordingly, it may sometimes be necessary for the Commission to exercise its power under s 23 upon a claim by an employee under s 29(1)(b)(ii) where the employer/employee relationship is continuing, or where that relationship has been terminated by a wrongful dismissal by the employer, but that repudiation has not been accepted by the employee who, for various reasons, may find it advantageous, at least temporarily, to keep the contract of employment in existence. For examples of why this may be advantageous to the employee see Turner v Australasian Coal & Shale Employees' Federation (1984) 6 FCR 177; 55 ALR 635. In those cases there will be no occasion for the Commission to exercise any of its powers under s 23A and, even more to the point, there will be no limitation upon the extent of the monetary relief which may be granted by the Commission arising from s 23A(1)(ab) of the section as it applied at the time of this case (or from s 23A(8) of the Act as it now stands). The final important issue arising on this appeal is whether, when exercising its powers under s 23(1), to give effect to a claim made by an employee under s 29(1)(b)(ii) or whether when dealing with such a claim coupled with a claim for relief for harsh, oppressive or unfair dismissal under s 23A there is any other restraint upon the remedies which the Commission may grant. This arises in the present case because of the submission that, generally speaking, the Commission is not empowered to entertain a claim for damages for breach of contract on an application under s 29(1)(b)(ii) - see Welsh v Hills (1982) 62 WAIG 2708 and HotCopper Australia Ltd v Saab [2002] WASCA 190; 82 WAIG 2020 per Anderson J at [24]. I agree, with respect, with the conclusions of Steytler J and of Pullin J in this case that in circumstances such as the present the Commission is empowered to make a monetary order, in the nature of damages, to deal with the industrial matter before it, as it is empowered to do under s 23(1), notwithstanding that the relief granted is to award damages for breach of the employment of contract arising from the employer's dismissal without notice or with inadequate notice. However, I do not wish to be understood as suggesting that this is a special exception or qualification upon limits of the Commission, otherwise, to give effect to common law entitlements on an application by an employee under s 29(1)(b)(ii).