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McDonald v Parnell Laboratories (Aust) Pty Ltd

McDonald v Parnell Laboratories (Aust) Pty Ltd

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FEDERAL COURT OF AUSTRALIA
McDonald v Parnell Laboratories (Aust) [2007] FCA 1903
CONTRACT OF EMPLOYMENT – summary dismissal – serious or wilful misconduct – whether staff guidelines incorporated into employment contract – whether damages available for loss of a chance to remain in employment – whether a term of mutual trust and confidence is implied into employment contracts –unlawful discrimination on the grounds of family responsibilities – assault and battery
WORDS AND PHRASES – misconduct – serious misconduct – serious and wilful misconduct – serious or wilful misconduct
Insurance Contracts Act 1984 (Cth) s 66(b)
Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii)
Sex Discrimination Act 1984 (Cth) s 8, s 14(3A)
Workers Compensation Act 1987 (NSW) s 14(2)
Addis v Gramophone Company Ltd [1909] AC 488
B.P. Refinery (Westernport) Pty Limited v Hastings Shire Council (1977) 180 CLR 266
Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66
Boral Resources (Queensland) Pty Ltd v Pyke (1989) 93 ALR 89
Boughey v R (1986) 161 CLR 10
Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99
Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144
Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337
Collins v Wilcock [1984] 3 All ER 374
Darby v Director of Public Prosecutions (2004) 61 NSWLR 558
Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120
Heptonstall v Gaskin (No 2) [2005] NSWSC 30; 138 IR 103
Martin v Tasmania Development and Resources [1999] FCA 593; 89 IR 98
Murray Irrigation Ltd v Balsdon (2006) 67 NSWLR 73
New South Wales Cancer Council v Sarfaty (1992) 28 NSWLR 68
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
Rankin v Marine Power InternationalPtyLtd [2001] VSC 150; 107 IR 117
Riverwood International Australia Ltd v McCormick (2000) 177 ALR 199
Rixson v Star City Pty Ltd (2001) 53 NSWLR 98
Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359
State of New South Wales v Paige (2002) 60 NSWLR 371
Tasmania Development and Resources v Martin [2000] FCA 414; 97 IR 66
TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130
The Commonwealth of Australia v Amann Aviation Pty Limited (1991) 174 CLR 64
Thompson v Orica Australia Pty Ltd (2002) 116 IR 186
Walker v Citigroup Global Markets Australia Pty Ltd (formerly known as Salomon Smith Barney Australia Securities Pty Ltd) [2006] FCAFC 101; 233 ALR 687
Walker v Citigroup Global Markets Australia Pty Ltd (formerly known as Salomon Smith Barney Australia Securities Pty Ltd) (2006) 226 ALR 114
DEMETRIUS IRENE MCDONALD v PARNELL LABORATORIES (AUST) PTY LIMITED AND ALAN BELL
NSD 1615 OF 2007
BUCHANAN J
7 DECEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1615 OF 2007

BETWEEN:

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: [2007] FCA 1903
Decision Date: 7 December 2007

CaseChat Overview and Summary

The case of McDonald v Parnell Laboratories (Aust) Pty Ltd involves Ms McDonald, who was an employee of Parnell Laboratories, suing her former employer for various causes of action including breach of contract, wrongful dismissal, and claims for damages based on alleged discrimination and assault. The court was tasked with determining whether Ms McDonald's dismissal was justified, and if not, whether she was entitled to any additional damages or remedies.

The primary legal issues the court had to address were whether Ms McDonald's dismissal was lawful and justified, and if not, what remedies were available to her. Specifically, the court had to consider whether there was a contractual right to dismiss Ms McDonald given the nature of her misconduct, and whether the dismissal breached any contractual obligations such as providing adequate notice or payment in lieu of notice. Additionally, the court needed to determine if there were any grounds for awarding damages beyond those for breach of contract, including claims related to implied terms of mutual trust and confidence, discrimination, and assault.

In delivering the judgment, the court concluded that Ms McDonald did not discharge the onus of proving her claims. The court found that Ms McDonald's dismissal was justified given the wilful character of her misconduct, and there was a contractual right to dismiss her. Consequently, the court found no breach of the contractual obligation to provide notice or payment in lieu, and no basis for awarding further damages based on the performance counselling guidelines or speculative claims of continued employment. The court also rejected claims for general damages related to an implied term of mutual trust and confidence, discrimination, or assault. As a result, the court dismissed Ms McDonald's application. The respondents were granted liberty to address the issue of costs in light of the court's judgment on liability.

Ms McDonald's response to Mr Bell's specific request about her attendance, which was deemed crucial by the court, was found to be inaccurate and unreliable. This led to a confrontation during a meeting on 30 June 2006 where Ms McDonald was accused of lying about her attendance. The discrepancies in her account and Mr Bell's account did not alter the court's view that her response was inadequate and misleading.

The final orders of the court were that the application be dismissed and that the parties would have an opportunity to make submissions on costs.

Orders

Orders of the court

1. The application is dismissed;

2. The parties will have an opportunity to make submissions on costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BUCHANAN J

This is an area in which Ms McDonald clearly bears the onus. She has not discharged it. Conclusion None of the causes of action have been made out. If I had not been satisfied that there was a contractual right to dismiss Ms McDonald having regard to the wilful character of her misconduct then I would, necessarily, have concluded that there had been a breach of the contractual obligation to provide her with at least eight weeks written notice or payment in lieu. The appropriate remedy for a breach of that character would have been the award of an equivalent sum plus interest. There would, however, not have been any foundation for the award of any further amount predicated upon the possibility that the performance counselling guidelines might have been employed nor any foundation for an award of damages based upon the speculative possibility that had she not been dismissed, as she was, her employment may have continued for some further extended period of time. There would, on the findings which I have made, have been no basis for the award of general damages with respect to any suggested implied term of mutual trust and confidence, for alleged discrimination on the grounds of family responsibilities or for any tort of assault or battery. I will order that the application be dismissed. The respondents have asked for liberty to address the question of costs in the light of my judgment on questions of liability. I will hear the parties on costs.

Ratio Decidendi

Legal Principle Established

Established by: BUCHANAN J

Ms McDonald responded by inserting text in the body of Mr Bell’s email. For present purposes it is item 1 in his request which is of significance. Her response to that item read as follows:‘Unfortunately I do not maintain a log of my arrival/departure and lunch and therefore can not comply with this request at the level of detail requested. In general I arrive at 9:00 (if there is an 8:30 meeting 3 times/week I arrive at 8:15) and Depart at 5:20, in addition I average a 20 minute lunch break twice/week in which I walk to the local café and back to my desk. There are exceptions to these times, however, they are not excessive or result in my working less hours than a full work week.’She added the following at the end of the email:‘I understand your need to assess my performance and status of deliverables since we have not met in a couple weeks, however, I am perplexed and concerned by the request for detailed account of my arrival/departure time and Lunch durations. I am here to be a part of the Parnell team and I take pride in my work and meeting the company objectives. I always endeavour to do my best and perform in the best interest of the organisation. I have been understaffed for some time and have been working diligently to recruit for the vacant roles while during this time I have managed the Quality Team to meet the increased production export demands with multiple OOS and deviations hindering the process. I am here to assist Parnell and the continued development of the organisation and its people and if I am not performing to your satisfaction, I ask that you advise me so that we can be successful.’ It seems reasonable to infer that Ms McDonald appreciated that Mr Bell had a specific and active concern about her pattern of attendance. Mr Bell’s very specific request and the severe note of his concluding remarks required, in my view, a conscientious answer. At a minimum Ms McDonald would have been wise to ensure that her response was generally accurate and reliable. When the meeting between Ms McDonald and Mr Bell occurred on 30 June 2006 Mr Bell had arranged for a Ms Slatery to be present. On Ms McDonald’s account of the conversation which ensued, and Mr Bell’s, she was challenged about her response. There are some discrepancies and differences in their accounts but they do not change the general picture. Ms McDonald was accused of lying to Mr Bell about her attendance. She denied that she had done so and insisted that she had in fact attended work as stated in her email. One feature about Ms McDonald’s account of the conversation should be mentioned. She said that the following exchange occurred:‘DM: “… I do have to take my kids to school sometimes and have to drop them off at 7:30am and that gets me to work by 9:00am.”AB: “So you take your kids to school everyday?”DM: “No, I don’t. When I have 8:30am meetings my husband takes the kids to school. My husband usually drops off my oldest son because his school is in St Ives and it is on his way to work.”’

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1615 OF 2007