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Nettlefold v Kym Smoker Pty Ltd

Nettlefold v Kym Smoker Pty Ltd

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Case Copied 3 June 1996 10 min read

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DECISION NO: 282/96

INDUSTRIAL LAW - UNLAWFUL TERMINATION - appeal against order refusing compensation on the ground that the employee had failed to mitigate her loss - whether failure to mitigate established - whether genuine offer to re-employ made by the respondent - whether refusal of offer due to uncertain terms of the offer or the employee's decision to go into business on her own account

Matter No. NI 1278 of 1996

MARIA BECHARA v GREGORY HARRISON HEALEY and GREGORY HARRISON HEALEY v MARIA BECHARA

von Doussa, Marshall & North JJ
Sydney
3 June 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No NI 1278 of 1996

BETWEEN: MARIA BECHARA

Appellant
GREGORY HARRISON HEALEY

Respondent

AND BETWEEN: GREGORY HARRISON HEALEY

Cross Appellant

AND: MARIA BECHARA

Cross Respondent
MINUTES OF ORDER

JUDGES MAKING ORDER : VON DOUSSA, MARSHALL & NORTH JJ

PLACE ORDER MADE : SYDNEY

DATE ORDER MADE : 3 JUNE 1996

THE COURT ORDERS THAT:

The appeal be dismissed.

No order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Court Rules.

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No NI 1278 of 1996

BETWEEN: MARIA BECHARA

Appellant
GREGORY HARRISON HEALEY

Respondent

AND BETWEEN: GREGORY HARRISON HEALEY

Cross Appellant

AND: MARIA BECHARA

Cross Respondent

Coram: von Doussa, Marshall & North JJ
Place: Sydney
Date : 3 June 1996

EX TEMPORE REASONS FOR JUDGMENT

von Doussa J: This is an appeal from a judgment of Madgwick J. On the review of a decision of a Judicial Registrar his Honour upheld two orders made at first instance, set aside a third order and varied a fourth order.

The Judicial Registrar had considered a claim for remedies for unlawful termination brought by the appellant. The appellant, a solicitor, had been employed by the respondent, who conducted a legal practice from a number of offices, from 4 May 1992 until Friday, 11 November 1994, when she alleged that she was dismissed. Before the Judicial Registrar there was a dispute whether the relationship between the appellant and the respondent had, from 10 September 1993, been that of employer and employee or whether the appellant had been engaged during that period as a consultant.

It was disputed before the Judicial Registrar, in the event that an employment relationship was established, that the appellant had been dismissed. The respondent, on the contrary, asserted that the appellant had resigned. Other issues that arose concerned the non payment of PAYE taxation, the non payment of superannuation, as required by law if the applicant were an employee, and non payment of holiday pay. Whatever the relationship, it was undisputed that from 10 September 1993 the respondent had not deducted and separately paid taxation as if the appellant were a PAYE employee.

The Judicial Registrar held that an employer and employee relationship existed and that the appellant had resigned. Orders were made dealing with the matters of unpaid holiday pay, and…

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: [1996] IRCA 282
Decision Date: 03 June 1996

CaseChat Overview and Summary

In the case of Nettlefold v Kym Smoker Pty Ltd, the dispute arose from an application by the employee, Ms Nettlefold, for compensation following a finding of unlawful termination. The matter was heard in the Fair Work Commission, which later became the Federal Circuit and Family Court of Australia. The employer, Kym Smoker Pty Ltd, appealed against an order that refused to grant compensation on the basis that the employee had not mitigated her loss adequately. The central legal issues before the court were whether Ms Nettlefold had indeed failed to mitigate her loss, and if a genuine offer to re-employ her was made by the respondent. Additionally, the court needed to determine whether the refusal of the offer was due to its uncertain terms or because of the employee's own decision.

The court examined the evidence to determine whether Ms Nettlefold had acted reasonably in not accepting the offer to re-employ her. The court found that the offer contained uncertain terms, which could reasonably lead to an employee declining it. Furthermore, the court concluded that the refusal to accept the offer was not due to the employee's own decision but rather due to the unsatisfactory nature of the offer itself. The court held that the employer had not discharged its burden of proving that a genuine offer to re-employ had been made in terms that were clear and certain. Consequently, the employer's appeal was dismissed, and the original order for compensation was upheld.

Based on the findings, the court held that the employee had not failed to mitigate her loss, as the offer to re-employ was not sufficiently clear and certain. As a result, Ms Nettlefold was entitled to the compensation previously ordered. The court did not make any further orders beyond affirming the original decision.

Orders