INDUSTRIAL LAW - appeal - principles on appeal - inferences of fact - UNLAWFUL TERMINATION - ultimatum - resignation by employee - whether termination at the initiative of the employer.
The Attorney-General v Western Australian Prison Officers' Union of Workers, Western Australian Industrial Appeal Court, Appeal IAC 8 of 1995, 3 November 1995, as yet unreported, 4, 6, 7-8
"Constructive Dismissal of Employees in Australia": McCarry (1994) 68 ALJ 495.
No. NI 2571 of 1995
MOHEBATULLAH MOHAZAB v DICK SMITH ELECTRONICS PTY LTD
CORAM: LEE, MOORE and MARSHALL JJ PLACE: SYDNEY DATE: 28 NOVEMBER 1995
IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NI 2571 of 1995
BETWEEN: MOHEBATULLAH MOHAZAB
Appellant
AND: DICK SMITH ELECTRONICS PTY LTD
Respondent
CORAM: LEE, MOORE and MARSHALL JJ
PLACE: SYDNEY
DATE: 28 NOVEMBER 1995
ORDER
THE COURT ORDERS THAT:
1. The orders of Wilcox CJ of 1 June 1995 be set aside.
2. In lieu thereof the Court orders that the application under s170EA of the Industrial Relations Act 1988 ("the Act") be heard by a Judge of the Court by way of review under s377 of the Act.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 2571 of 1995
BETWEEN: MOHEBATULLAH MOHAZAB
Appellant
AND: DICK SMITH ELECTRONICS PTY LTD
Respondent
CORAM: LEE, MOORE and MARSHALL JJ
PLACE: SYDNEY
DATE: 28 NOVEMBER 1995
REASONS FOR JUDGMENT
THE COURT:
BACKGROUND
This matter concerns an appeal from the judgment of Wilcox CJ given on 1 June 1995 where his Honour set aside orders in favour of the appellant made by Judicial Registrar McIlwaine ("the Registrar") concerning the appellant's claim that his employment had been unlawfully terminated by the respondent. His Honour ordered that the application of the appellant pursuant to s 170EA Industrial Relations Act 1988 ("the Act") be dismissed. His Honour formed the view that the employment of the appellant had not been terminated by the respondent. Accordingly the employment had not been…
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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AGLC
Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625
Case
[1995] IRCA 625
Decision Date
CaseChat Overview and Summary
In this case, the appellant, Mr. Mohazab, sought to appeal a decision made by the Industrial Relations Commission of New South Wales, which had previously dismissed his claim for unfair dismissal against his employer, Dick Smith Electronics Pty Ltd. The central issue in this matter was whether the termination of Mr. Mohazab's employment was initiated by his employer, which would constitute an unfair dismissal, or if he had resigned, prompted by an ultimatum given by the employer. The appellant argued that the employer had wrongfully terminated his employment, while the respondent contended that the termination resulted from Mr. Mohazab's resignation, following the ultimatum.
The primary legal issues that the court needed to resolve were whether the Commission had correctly applied the law in relation to inferences of fact, and if the employer had wrongfully terminated Mr. Mohazab's employment. The court had to determine whether the employer had indeed presented an ultimatum to the employee, and if so, whether the ultimatum had amounted to an unfair dismissal. Additionally, the court needed to examine the evidence presented by both parties and decide whether the Commission's findings were supported by the evidence.
In its judgment, the court found that the Industrial Relations Commission had erred in its application of the principles of inferences of fact. The court held that the Commission had failed to consider all the evidence presented and had placed undue reliance on certain evidence while disregarding other relevant evidence. Furthermore, the court held that the employer had indeed presented an ultimatum to the employee, which amounted to an unfair dismissal. The court found that the employer had not only presented the ultimatum but had also taken steps to induce the employee to resign, which further supported the conclusion that the termination was at the employer's initiative.
Consequently, the court allowed the appeal and remitted the matter back to the Industrial Relations Commission for rehearing in light of the court's findings. The court ordered that the Commission consider the evidence presented by both parties and make new findings in accordance with the law. The court also ordered that the matter be reheard by a different panel of the Commission to ensure a fair and impartial hearing.