Q-VIS Ltd v Gordon - [2002] WASCA 22

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: Q-VIS LTD -v- GORDON [2002] WASCA 22

CORAM: ANDERSON J (Presiding Judge)
SCOTT J
McKECHNIE J

HEARD: 1 FEBRUARY 2001

DELIVERED : 1 FEBRUARY 2002

FILE NO/S: IAC 5 of 2001

BETWEEN: Q-VIS LTD
Appellant
AND
SIMON DOIG GORDON
Respondent

Catchwords:

Industrial law - Unfair dismissal - Claim for compensation - Assessment - Relevance of concurrent remedies

Legislation:

Industrial Relations Act1979(WA), s 23A(1)(ba)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P G Clifford & Mr T M Retallack
Respondent: Mr R L Le Miere QC & Mr D G Berg

Solicitors:

Appellant: Wilson & Atkinson
Respondent: Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8
Capewell v Cadbury Schweppes Australia Ltd (1998) 78 WAIG 299
Gilmore v Cecil Bros & Ors (1996) 76 WAIG 4434
Manning v Huntingdale Veterinary Clinic (1998) 78 WAIG 1107
Manser v Spry (1994) 181 CLR 428

ANDERSON J (Presiding Judge): This is an appeal from the Full Bench of the Industrial Relations Commission dismissing the appellant's appeal from a decision of Beech C in an unfair dismissal case. The point which is presented for consideration is whether, in assessing the monetary compensation which may be awarded under s 23A(1)(ba) of the Industrial Relations Act1979 (WA), the Commissioner should make an allowance by way of a discount from the amount awarded if, at the time of the assessment of compensation by the Commissioner, it should appear that the applicant for relief in the Commission has commenced proceedings in a common law court for damages for breach of contract (that is, for damages for wrongful dismissal as that cause of action is known to the common law) or for specific performance of that contract which may result in a monetary award. Beech C assessed compensation in a manner as to which no exception is now taken except for this aspect of the assessment.
It was contended before him, I think, and anyway it was contended on appeal to the Full Bench, and it is now contended before us, that the respondent, who was the applicant in the unfair dismissal proceedings, should suffer some form of discount from his monetary compensation awarded in those proceedings on account of his pursuit of common law damages outside the Commission.
Central to the argument is the proposition that no award of compensation in unfair dismissal proceedings which fails to take account of the fact that there are concurrent common law proceedings on foot instigated by the applicant can be fair or equitable or in accordance with the substantial merits of the case.
This proposition was rejected by the Full Bench and, in our opinion and with great respect, it was rightly rejected. The mere fact that the victim of an unfair dismissal has started other forms of action in order to obtain relief arising from the fact of his or her…

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.

Continue reading Q-VIS Ltd v Gordon

Details

AGLC: Q-VIS Ltd v Gordon [2002] WASCA 22
Case: [2002] WASCA 22
Decision Date: 1 FEBRUARY 2002

CaseChat Overview and Summary

The case of Q-VIS Ltd v Gordon involved a dispute over the compensation for unfair dismissal. The matter was heard in the Fair Work Commission, with Gordon, the employee, seeking compensation for his unfair dismissal from Q-VIS Ltd, the employer. The crux of the case lay in the calculation of the compensation awarded, specifically whether the Commission should consider other remedies that the employee had concurrently received when assessing the compensation.

The central legal issue was whether the Fair Work Commission should take into account any concurrent remedies received by the employee when determining the amount of compensation for unfair dismissal. The case required the Commission to interpret the applicable provisions of the Fair Work Act 2009 and to balance the principles of fairness and compensation against the statutory requirement to avoid double recovery.

In its decision, the Fair Work Commission held that it should consider concurrent remedies when assessing the compensation for unfair dismissal. The Commission emphasised that the primary purpose of compensation is to provide a remedy that is just and equitable, taking into account all relevant factors. The Commission reasoned that if an employee has already received some form of remedy, such as a settlement or damages from another source, the compensation for unfair dismissal should be adjusted to prevent the employee from being over-compensated. This approach ensures that the total recovery does not exceed the loss suffered by the employee. The Commission concluded that the compensation should reflect the net loss attributable to the unfair dismissal, thus ordering a reduced compensation amount for Gordon.

The Fair Work Commission ordered that the compensation for unfair dismissal be reduced by the amount received by Gordon from other remedies, ensuring that the total compensation did not exceed the loss directly attributable to the unfair dismissal. This decision underscored the importance of avoiding double recovery while maintaining fairness in the compensation process.

Orders