Nicolson v Heaven & Earth Gallery Pty Ltd

Paul Terrence Hunt, the applicant, filed an application for remedy against his former employer, Sta Tech Engineering Pty Ltd (trading as Boyd Steel), the respondent. The applicant claimed that his termination from employment as a welder was unlawful, alleging that he was provided with a reduced redundancy payment by what he described as the "fraudulent use of an expired and unclear agreement". The respondent, on the other hand, claimed that the termination was due to a shortage of work in a seasonally linked industry. The central issue before the court was whether the applicant's termination was lawful and if the deductions made from his termination payment were justified.

The court found that while the redundancy was genuine, the deduction of $1,111.00 from the applicant's termination payment was not authorised by the agreement between the parties. The agreement was drawn for a specific purpose, the March 1993 repairs of the applicant's motor car, and was never extended with the consent of the applicant to the vigorously disputed debt. The court held that if the $1,111.00 was recoverable by T.P. Esmore & Son Pty Ltd (trading as St. Arnaud Apex Service Station), recovery required the initiation of legal action elsewhere. Furthermore, the court found the termination harsh, unjust and unreasonable, as there was no proper investigation of the facts and consultation with the employee about those facts and their possible consequences.

Based on the findings, the court ordered the applicant to be reinstated to the position he occupied immediately prior to the termination or to a position which was substantially the same as that occupied by him prior to the termination. The reinstatement was to take effect from Monday 26 September 1994. Additionally, the court ordered the respondent to pay the applicant the amount of $2,840.27 being compensation for remuneration lost by the applicant and an amount of $1,158.18 being the difference between the amount due to the employee on termination and the amount paid to the employee on termination. The compensation ordered took account of seventeen weeks since termination at a basic weekly rate of $372.60 plus an underpayment of $1,158.18 on termination reduced by income from Job Search and R.K. Macey.