Mendelsons Lawyers Pty Ltd v Hanlon - [2013] VSC 320

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW

JUDICIAL REVIEW & APPEALS LIST

No. SCI 2013 01616

MENDELSONS LAWYERS PTY LTD	Appellant
v
ANTHONY HANLON	Respondent

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JUDGE:	Pagone J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2013
DATE OF JUDGMENT:	20 June 2013
CASE MAY BE CITED AS:	Mendelsons Lawyers Pty Ltd v Hanlon
MEDIUM NEUTRAL CITATION:	[2013] VSC 320

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JUDICIAL REVIEW – Appeal against a decision of Magistrates’ Court – Construction of Agreement – No work no pay principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Felman	Mason Sier Turnbull Lawyers
For the Respondent	Mr D G Robertson	Mahons with Yuncken & Yuncken Lawyers

HIS HONOUR:

The Appellant (“Mendelsons”) appeals against a decision of the Magistrates’ Court of Victoria given orally on 4 March 2013. The grounds of appeal, and the fundamental issue in the proceeding, concerns the construction of a contract of employment between Mendelsons and the Respondent (“Mr Hanlon”). The issue in contention between them is essentially whether the terms of employment by Mendelsons of Mr Hanlon obliged Mendelsons to make certain payments, in particular for lease payments of a motor vehicle, during the period of employment but whilst Mr Hanlon was not able to perform work. Mr Hanlon suffered an injury which resulted in him being unable to perform his employment duties from 13 January 2012 onwards. On 24 January 2012 Mr Hanlon submitted a worker’s injury claim form to Mendelsons which was submitted to the latter’s workers compensation insurance agent, QBE Workers Compensation (Vic) Limited. The claim was accepted by QBE on 24 February 2012. The employment of Mr Hanlon was not formally terminated by Mendelsons during the period in respect of which Mr Hanlon claimed that Mendelsons was obliged to make the motor car lease payments. The proceeding before the learned Magistrate, and before me, proceeded without evidence of the employment relationship having come to an end, although I was informed from the Bar table that it had been terminated (as was the learned Magistrate during argument about costs). No issue appears to arise about whether or not the employment relationship has come to an end, it being conceded that the employment relationship continued to exist in form after 13 January 2012, and that the Magistrate’s orders were carefully expressed to apply “while the plaintiff [was] employed by the defendant”.

The parties are all lawyers. Mendelsons is a company carrying on practice as barristers and solicitors. Mr Hanlon is a solicitor who commenced employment with Mendelsons as a legal practitioner on 10 March 1994. On 27 January 2009 Mendelsons and Mr Hanlon varied the terms of the latter’s employment. The relevant variations were set out in email correspondence between Roger Mendelson on behalf of Mendelsons and Mr Hanlon on his own behalf.

On 27 January 2009 Roger Mendelson sent an email to Mr Hanlon setting out the former’s understanding of their agreement:

Dear Tony
My understanding of our agreement is as follows:
New base salary…

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: [2013] VSC 320
Decision Date: 20 June 2013

CaseChat Overview and Summary

Mendelsons Lawyers Pty Ltd appealed against a decision made by the Magistrates’ Court in relation to a dispute with a former employee, Hanlon. The dispute centred around the interpretation of an agreement between the parties, specifically the "no work no pay" principle and the employee's entitlement to payment for time not worked. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues the court had to address were the correct interpretation of the terms of the agreement between Mendelsons Lawyers and Hanlon, particularly whether the "no work no pay" principle applied in circumstances where Hanlon was required to be available for work but did not perform any tasks. The court was also required to determine if the agreement allowed for compensation for time not worked.

In examining the agreement, the court found that the "no work no pay" principle was applicable as there was no express provision for payment for time not worked. The court emphasised that the onus was on the employee to demonstrate that they were entitled to payment for time not worked. Since the agreement did not explicitly address this issue, the court upheld the Magistrates’ Court's decision that Mendelsons Lawyers was not required to pay Hanlon for the time he was on standby without performing any work.

The court's decision was based on the clear language of the agreement and the absence of any explicit entitlement to payment for non-working time. Consequently, the appeal was dismissed, and the original decision of the Magistrates’ Court was affirmed.

Orders