Pettet v Readiskill LMT Mildura
[2001] VSCA 211
•14 November 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 7265 of 1999
| IAN EDWARD PETTET | Appellant |
| v. | |
| READISKILL LMT MILDURA | Respondent |
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JUDGES: | ORMISTON and CALLAWAY, JJ.A., and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 November 2001 | |
DATE OF JUDGMENT: | 14 November 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 211 | |
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Contract of Employment - Claim for wrongful dismissal - Obligation to comply with directions as to use of time clock given under term of contract - Whether refusal to comply amounted to repudiation - Procedural fairness in Magistrates' Court.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Mr P.H. Barton | David R. Messenger |
ORMISTON, J.A.:
This is an appeal from an order of a judge in the Practice Court refusing to grant an order in the nature of certiorari sought on an application for judicial review of an order made in the Magistrates' Court. This Court refused leave to the respondent to file a late notice of contention to the effect that such relief should not be granted where a right of appeal lay under the Magistrates' Court Act 1989, on the ground that in this case we considered that the respondent had failed to raise the issue at an appropriate time, namely, when the matter was before the judge in the Practice Court.
The appellant sued the respondent in the Magistrates' Court at Mildura for damages for wrongful dismissal. The appellant had been engaged by the respondent, a personnel placing company, on a six month contract to perform skilled electrical work at the factory of a client company, Angas Park Fruit Company Pty Ltd at Robinvale.
The terms and conditions of his casual employment were set out in a document of some 10 clauses of which it is here necessary to set out only clause 5, which was in these terms:
"You will be required to perform all duties and functions as directed by our client, the Angas Park Fruit Company."
The accompanying letter said also that the appellant was required at the end of each week to complete a time sheet in a book provided detailing the hours worked, and that the time sheet should be authorised by the client, or by an authorised employee of that client, and a copy forwarded to the respondent by Monday of each week.
The dispute, which has generated a great deal of heat and not much light, revolved around a direction given to the appellant, shortly after his arrival at the factory, by the manager of the Angas Park factory to the effect that the appellant was required to insert a card into, and to punch, the "Bundy clock" at the factory both before starting work and after finishing work each day. After a period of uncertainty during which he punched the card on only a couple of occasions, it became more and more clear that the appellant was unwilling to obey the direction, even after it was confirmed by the respondent. By early April it was clear that howsoever it was expressed he had no intention of complying with that direction. In substance his attitude was confirmed before this Court, so that there can be no dispute about it. For his refusal to comply with the direction he was dismissed by the respondent on 8 April 1998. Nevertheless, the respondent insisted immediately, and has ever since, that the directions given to him were not lawful and not authorised by the contract. Consequently he said that the respondent was not entitled to terminate his contract.
The proceeding first came before the Magistrates' Court in Robinvale in August 1998. The respondent answered the appellant's claim by saying that he had been dismissed because he had failed to obey a lawful and reasonable direction given under the terms of the contract.
The magistrate found, in substance, that the requirement to "punch the Bundy" was "reasonable and equitable and did not contradict any of the documents which formed the contract". By the appellant's failure to comply he had not performed all his duties and functions as directed by Angas Park and therefore it was, in the magistrate's terms, "open to [the respondent] to terminate the contract and to end the employment of Pettet". Consequently he dismissed the appellant's claim.
The appellant then appealed to the Supreme Court pursuant to s.109 of the Magistrates' Court Act on a fairly limited legal issue which appeared, at least at first, confined to whether the appellant's refusal amounted to "unsatisfactory work performance" within the meaning of another clause, clause 10, which seemed to give a right of peremptory dismissal in such circumstances. The learned judge, however, reformulated the question so as to ask, in effect, whether the respondent was entitled to terminate the appellant's employment because he had failed to perform duties directed by Angas Park under clause 5 of the agreement in that he refused to clock on and off "by means of a time clock". Her Honour's reasons are recorded in [1999] VSC 195. It is only necessary to say that she reformulated the question because she considered that there was no right of peremptory dismissal under clause 10 for failure to comply with a direction given pursuant to clause 5. By implication it may be that her Honour held that the direction was validly given under clause 5, but her Honour held that it certainly did not give any right to dismiss under clause 10. If there was a right of dismissal, it was because the failure to comply with the direction amounted to repudiation by the appellant, a matter to be resolved in all the circumstances of the case and which the magistrate had not so far addressed. The order of the Magistrate's Court was, therefore, set aside and the matter remitted to the magistrate to be dealt with in accordance with her Honour's findings.
The matter came on again on 15 September 1999 by video-link from the Geelong to Robinvale Magistrate's Courts. On this occasion the appellant filed detailed submissions, canvassing not only the question of repudiation, but also many of the matters the magistrate had already dealt with on the first occasion. For some time there was an unedifying argument as to what could then be raised, the magistrate making it quite clear that he would not countenance a reagitation of those matters which had already been decided by him. For his part, the appellant seemed unwilling to confine himself to the argument as to repudiation. He claimed, in his notice of appeal to this Court, and in the application under Order 56, that he was denied natural justice because of the magistrate's failure to allow him to canvass other issues already decided. It seems now, from his concessions before this Court, that he did not fully understand that Balmford, J.'s order did not reverse all the reasoning and the decision earlier reached by the magistrate. Having had it explained that the order only had the effect of setting aside the orders that the claim was dismissed, et cetera, he appeared to accept that he had been asking the magistrate to reopen matters which had not been reversed or set aside by reason of the order of Balmford, J. He agreed that the issues at the first trial were not to be canvassed all over again and that he had misunderstood what the magistrate had been seeking to explain to him.
It is clear, moreover, that the magistrate asked for submissions on the question of repudiation. Even though the appellant never got to the point of making any oral submissions on the issue, the magistrate had at least the benefit of the appellant's written submissions. It must be said, however, that it was not for want of trying or attempting to explain to the appellant that he had the opportunity to make such submissions. In the end the magistrate shortly held that the appellant's "conduct ... in refusing to use the time clock constituted misconduct sufficient to amount to a repudiation of the contract and thus entitled the ... defendant to terminate it”. There was also a costs order which it is unnecessary to examine here but which formed a ground for the next stage of the proceeding.
From these orders the appellant sought not to appeal under s.109 of the Magistrates' Court Act, but to issue the originating motion for judicial review earlier referred to. There were many grounds, most of which related to the matter of the appellant's obligations under the contract and the issue of repudiation, although some four grounds related to the costs orders.
The learned judge rejected the arguments relating to the costs orders and the appellant does not now seek to challenge that aspect of the decision. His complaint expressed, in great detail, was against the substance of his Honour's findings which, in substance, rejected his arguments:
(1)That it was not within the scope of the contract that the appellant be required to use the time clock; and.
(2)That it was not open to the magistrate to find that his behaviour amounted to repudiation.
In effect the arguments in this Court were similarly confined to those issues. The first was whether it was open to the magistrate to find that, on a proper construction of the contract, the respondent was entitled to rely on the direction given by Angas Park as to the use of the time clock as a reasonable and lawful direction. Much was said about the common law nature of a contract of employment and many authorities were cited to us, but in my opinion the appellant failed to appreciate, at least at the outset, that at common law a contract is constituted by what the parties agree, as properly interpreted. Here there was an explicit term which enabled the client of the respondent to require the appellant "to perform all duties and functions as directed by our client". [Emphasis added.] This was briefly expressed, but it was accepted on both sides that such directions must be both lawful and reasonable.
As to lawfulness, the appellant referred the Court to certain regulations relating to electricians and work performed by electricians, but in my opinion they were not inconsistent with clause 5, or with the directions given under it, and in no way impeded his compliance with those directions, nor did those directions impede his compliance with the regulations. Likewise, he said that the directions were unreasonable as they were unnecessary and inconsistent with the requirement to fill out time sheets. Again, I can find no inconsistency or unreasonableness. The time sheets formed part of the appellant's obligation; the Angas Park requirements went to the manner in which the appellant carried out his functions and duties, and were reasonable in that they enabled Angas Park to verify and confirm the times set out on the required sheets, among other matters.
There were other matters put to us, each of which I have considered, but none of which I believe show that the requirements in this case were either unlawful or unreasonable. In short, I can see no basis for holding that it was not open to the Magistrate to find that the requirements were not proper for the carrying out of the appellant's duties and functions, that is, in the manner directed by Angas Park.
It is unnecessary to examine the respondent's contentions as to issue estoppel or the Anshun[1] principle for, in my opinion, there was no basis for any different order to be made in that respect, that is, in respect of the nature of the directions given to the appellant pursuant to clause 5.
_ 1. Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 C.L.R. 589.
The second principal point argued was that it was not open to the magistrate to find that the appellant's conduct amounted to a repudiation of the contract. In my opinion this was a question of fact, and so, on the most favourable view of the law for the appellant, the only question is whether it was open on the evidence for the magistrate to find that the contract had been repudiated by the conduct of the appellant. Having regard to the fact that the appellant clearly objected to "punching the Bundy", or in any way complying with the request of Angas Park, and said at all times he was not going to comply, and indeed became even more firmly convinced of the rectitude of his position, it is difficult to conclude that it was not open to the magistrate so to conclude. In my opinion the magistrate was correct in his conclusion. The only issue here is whether it was open to him to find that the appellant had repudiated the contract in the manner described, and in my opinion it was open.
The third principal objection taken was founded on a breach of the principle of procedural fairness. I have already shown how the difficulty arose in the Magistrate's Court and that it could not really be said that the appellant was denied his opportunity to put arguments on the issue of repudiation, as being, on a proper view of Balmford, J.'s conclusions, the only matter left to be determined in the Magistrate's Court. This, and the related grounds, should also be rejected.
It is unnecessary, therefore, to consider the manner and circumstances in which an order might be made in the nature of an order for certiorari if the appellant had made out any of his grounds. Each of the grounds in the notice of appeal are caught up in the matters already discussed. The appellant has not made out any of those grounds and his appeal must, therefore, be dismissed.
CALLAWAY, J.A.:
I agree. In doing so, I assume, without deciding, first, that the judgment given by Balmford, J. on 26 May 1999 on the appeal under s.109 of the Magistrates' Court Act 1989 was interlocutory; secondly, that the order made by Beach, J. on 30
November 1999, against which the present appeal is brought, was final; and, thirdly, that an order in the nature of certiorari would have been available if it had not been open to the magistrate to take the view that the time clock direction fell within the purview of clause 5 of the appellant's contract of employment or if it had not been open to him to find that the appellant had repudiated the contract.
O'BRYAN, A.J.A.:
I agree in the reasons given by my colleagues that the appeal should be dismissed.
ORMISTON, J.A.:
The orders of the Court, therefore, are that the appeal be dismissed and that the appellant pay nine tenths of the respondent's costs.
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