District Court
New South Wales
Medium Neutral Citation: Mitchell-Innes v Willis Australia Group Services Pty Ltd (No 2) [2014] NSWDC 250 Hearing dates: 12 - 16 May; 5 - 8 August; 28, 29 October 2014 Decision date: 08 December 2014 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment in favour of the plaintiff against the first and second defendants in the sum of $296,650.75.
(2) Dismiss the cross-claim.
(3) Defendants to pay the plaintiff's costs.
(4) Stay the entry of order (1) for two weeks, and thereafter until further order in the event that an application is made to correct an error in the calculation of the quantum of damages.
(5) Stay entry of order (3) for two weeks, and thereafter until further order in the event that an application is made in respect of the proper costs order.
Catchwords: CONTRACT - employment contract - termination of employment - breach - serious misconduct in serious circumstances - gross misconduct - intoxication - damages Legislation Cited: Evidence Act 1995, s 69, s 128, s 146, s 147
Fair Work Act 2009 (Cth)
Fair Work Regulations 2009
Long Service Leave Act 1955, s 4, s 12
Uniform Civil Procedure Rules 2005, r 36.1, r 42.1Cases Cited: Barker v Commonwealth Bank of Australia [2012] FCA 942
Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20
Brodie v Singleton Shire Council (2001) 206 CLR 512
Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2012] WASC 425
Clouston & Co Ltd v Corry [1906] AC 122
Commonwealth Bank of Australia v Barker [2014] HCA 32
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Desmond Henry Randall v Aristocrat Leisure Limited (ACN 002 818 368) [2004] NSWSC 411
Drysdale v New Era Steamship Company Ltd (1936) 55 Ll.L.Rep. 45
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Fox v Wood (1981) 148 CLR 438
Gooley v Westpac Banking Corporation (1995) 129 ALR 628
Hadley v Baxendale (1854) 2 CLR 517
Kearns v Glencore UK Limited [2013] EWHC 3697
Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285
McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903
Murray Irrigation Ltd v Balsdon (2006) 67 NSWLR 73
New South Wales Cancer Council v Sarfaty (1992) 28 NSWLR 68
North v Television Corporation Ltd (1976) 11 ALR 599
Pacific Coal Pty Ltd; Ex parte CFMEU (2000) 203 CLR 346
Pepper v Webb [1969] 1 WLR 514
Peter Tao Zhu v Sydney Organising Committee for the Olympic Games & Ors [2001] NSWSC 989
Rankin v Marine Power International Pty Ltd [2001] VSC 150
Riverwood International Pty Ltd v McCormick (2000) 177 ALR 193
Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357
Tasmania Development & Resources v Martin (2000) 97 IR 66
Transport Workers' Union of Australia v K & S Freighters Pty Ltd [2010] FCA 1225
Walker v Citigroup Global Markets Australia Pty Ltd (2006) 233 ALR 687
Wise v Wilson (1845) 1 CAR…
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- Case
- [2014] NSWDC 250
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the plaintiff's conduct constituted serious misconduct in serious circumstances, warranting termination without notice or pay, and if not, whether the dismissal was fair and reasonable. The court also needed to consider the appropriate quantum of damages to be awarded to the plaintiff if the dismissal was found to be unjust. The central issue was whether the plaintiff's intoxication while on duty, which resulted in physical altercations and threats to colleagues, justified the termination of his employment without notice or pay.
The court found that the plaintiff's conduct did not rise to the level of gross misconduct, as defined by the Employment Act. While the plaintiff's actions were inappropriate and disruptive, they did not constitute serious misconduct in serious circumstances. The court held that the dismissal was not justified, and the plaintiff was entitled to damages for wrongful termination. The court awarded the plaintiff $296,650.75 in damages, representing lost wages and entitlements. The court dismissed the cross-claim brought by the defendants and ordered the defendants to pay the plaintiff's costs. The entry of these orders was stayed for two weeks to allow for any potential applications regarding the calculation of damages or costs.
Orders
Orders of the court
(1) Judgment in favour of the plaintiff against the first and second defendants in the sum of $296,650.75.
(2) Dismiss the cross-claim.
(3) Defendants to pay the plaintiff's costs.
(4) Stay the entry of order (1) for two weeks, and thereafter until further order in the event that an application is made to correct an error in the calculation of the quantum of damages.
(5) Stay entry of order (3) for two weeks, and thereafter until further order in the event that an application is made in respect of the proper costs order.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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