Ostle v Wilson Mining Pty Ltd

Case [2022] FedCFamC2G 109

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ostle v Wilson Mining Pty Ltd [2022] FedCFamC2G 109

File number(s): SYG 1659 of 2020
Judgment of: JUDGE HUMPHREYS
Date of judgment: 25 February 2022
Catchwords: INDUSTRIAL LAW – Fair Work Act – whether applicant provided with reasonable notice as to redundancy – whether contravention of s 323 of the Fair Work Act – inadequate notice as to redundancy – s 323 not applicable on the facts – no duty to mitigate.
Legislation: Fair Work Act 2009 (Cth) ss 117, 323, 546
Cases cited:

Carrabba v PFP (Aust) Pty Ltd [2019] FCCA 2857

Fishlock v The Campaign Palace Pty Ltd [2013] NSWSC 531

Guthrie v News Ltd (2010) 27 VR 196

Heldberg v Rand Transport (1986) Pty Ltd [2018] FCA 1141

Kuczmarski v Ascot Administration Pty Ltd (2016) 259 IR 233

McAlister v Yarra Australia Pty Ltd [2021] FCCA 1409

McGowan v Direct Mail and Marketing Pty Ltd (2016) 262 IR 311

Richards v Nicoletti [2016] WAIRC 00941
Division: Division 2 General Federal Law
Number of paragraphs: 53
Date of last submission/s: 15 February 2022
Date of hearing: 14 – 15 February 2022
Place: Parramatta
Counsel for the Applicant: Mr Miles
Counsel for the Respondent: Mr Mahendra

ORDERS

SYG 1659 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MITCHAM OSTLE

Applicant
AND:

WILSON MINING PTY LIMITED

Respondent

ORDER MADE BY:

JUDGE HUMPHREYS

DATE OF ORDER:

25 FEBRUARY 2022

THE COURT ORDERS THAT:

1.Within 14 days, the parties are to provide the Court with a short minute of order to give effect to these reasons.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

  1. Wilson Mining Services Pty Ltd (“the respondent”) provides mining products in the black coal mining industry. This included providing specialist products such as explosion resistant sealants, including ROCSIL Foam and a plastic mesh used to prevent rock fall in the roof of mined areas.

  2. In May 1995, the applicant states that he was verbally employed by Mr David Wilson, a principal of the company, in the position of Director Marketing and Sales. It is common ground that the applicant’s employment contract was never reduced to writing. The applicant was further appointed to the Board of the respondent company in July 1995 and as a Company Secretary in April 1996. 

  3. The applicant states that he received a separate payment for his role as a Director of the Company, to that of his employed position of Director Sales and Marketing.

  4. Over a period of years, the applicant’s remuneration with the respondent…

Continue reading Ostle v Wilson Mining Pty Ltd

Sign in free to access the full text

Details
AGLC
Ostle v Wilson Mining Pty Ltd [2022] FedCFamC2G 109
Case
[2022] FedCFamC2G 109
Decision Date

CaseChat Overview and Summary

The matter of Ostle v Wilson Mining Pty Ltd was heard in the Fair Work Commission. The dispute involved the respondent's termination of the applicant's employment and the associated dispute over the applicable notice period. The applicant argued that he was entitled to a longer period of reasonable notice due to his position and length of service, while the respondent contended that the statutory minimum notice period under the Fair Work Act 2009 applied.

The primary legal issue before the Commission was whether the statutory notice period of s 117 of the Fair Work Act 2009 excluded or displaced the common law implied term of reasonable notice, or whether it merely set a minimum standard. Additionally, the Commission needed to determine the appropriate period of reasonable notice, if any, given the applicant's role, tenure, and the specific circumstances of the employment.

The Commission considered the evidence presented and concluded that s 117 of the Act did not exclude or displace the common law implied term of reasonable notice but rather established a minimum standard. The Commission found that the applicant's role, while senior and critical to the business, did not warrant a period of reasonable notice greater than eight weeks. This determination was based on the evidence provided by the applicant and the respondent's witness, as well as the broader industry standards and the applicant's medical condition.

The Fair Work Commission ordered that the respondent pay the applicant the statutory minimum notice period, which was determined to be eight weeks. The Commission found that the applicant was not entitled to a longer period of reasonable notice based on the evidence and circumstances of the case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The respondents contend that s 117 of the Act excludes or displaces the implied term of reasonable notice, sets a minimum standard or safety net, and leaves the parties to contracts of employment free to agree expressly a greater period of notice should they wish to do so. Further, even if a term of reasonable notice was implied in the contract of employment, the period of reasonable notice was not greater than eight weeks. THE EVIDENCE The first witness to give evidence was Mr Mark Levey. In an Affidavit sworn 27 Jan 2022, Mr Levey denied saying to Mr White that the applicant’s role was more accepting sales than going out to clients and selling. Mr Levey stated that the applicant’s best attribute and strength for the respondent company, was his extensive number of contacts which he had developed while working in the mining industry since 1991. In Mr Levey’s opinion, the applicant’s role was certainly critical to the business and was a senior role. In cross examination, Mr Levy stated that he was first employed by Wilson Mining in 2013 but had known the applicant since 1995. Mr Levey regarded the applicant as a friend but not so much in the last five years. Mr Levey stated that Mr Neil Alsten was employed by Wilson Mining in 2017-2018 as a Business Development Manager but stated that this was a different role to that fulfilled by the applicant. Mr Levey agreed that the applicant had transitioned to a part-time role which finally was on the basis of three days per week, eight hours per day. Part of the reason for this was the downturn in the mining industry at the time. In terms of the conversations with Mr White, while Mr Levey agreed that he had no specific recall of the various conversations not occurring, he felt that if they had occurred he would remember them. The applicant deposed three Affidavits sworn 13 April 2021, 15 June 2021 and 27 January 2022. In approximately May 1995, the applicant joined the respondent company following a verbal offer of employment by Mr David Wilson, the then Managing Director of the respondent company. The terms and conditions of the employment contract were never reduced to writing. The applicant was also appointed as a Director of the respondent company and Company Secretary in 18 April 1996. The applicant was paid separate remuneration, over and above that of being Director of Marketing and Sales for his role as a Director of the respondent company and Company Secretary. Mark Levey was employed as the Chief Executive Officer of the respondent in 2013. Mr Levey was not a Director of the company and reported to the Board, of which the applicant was a member. The applicant claims that his “best worth” was carrying out marketing and sales duties and not managing the complete business. Mr Neil Alston was engaged by the respondent as a business development manager in 2017. Since 1997, the applicant has suffered from Ulcerative Colitis. Due to the chronic nature of the disease over a long period time, it led to bouts of depression which the applicant controlled by medication. Following each bout of the disease, it took longer and longer for recovery to occur and as a result, it was imperative that the applicant maintain a healthy work-life balance.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.