Pettet v Readiskill LMT Mildura - [2001] VSCA 211

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…

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: [2001] VSCA 211
Decision Date: 14 November 2001

CaseChat Overview and Summary

Pettet v Readiskill LMT Mildura involved an employee, Pettet, who sought to recover damages for wrongful dismissal against his employer, Readiskill LMT Mildura. Pettet alleged that he was dismissed without cause, in breach of his employment contract. The case was heard in the Magistrates' Court of Victoria. The central dispute revolved around the terms of the employment contract, specifically a requirement to use a time clock to record work hours, and whether Pettet's refusal to comply with this obligation constituted a repudiation of the contract by the employer.

The primary legal issues before the court were whether the employer had just cause to dismiss Pettet and if Pettet's refusal to comply with the time clock policy amounted to a repudiatory breach of contract. Additionally, the court had to consider whether the employer provided Pettet with procedural fairness during the disciplinary process that led to his dismissal.

The court examined the terms of the employment contract and found that the obligation to use the time clock was a legitimate and reasonable term. The employer had a duty to enforce this term, and Pettet's refusal to comply was a breach of contract. The court concluded that the employer did not act unreasonably in dismissing Pettet for this breach, and therefore, the dismissal was not wrongful. Furthermore, the court found that the employer had afforded Pettet procedural fairness by providing him with an opportunity to explain his actions and by considering his response before making the decision to dismiss. Based on these findings, the court dismissed Pettet's claim for wrongful dismissal.

Orders