R v Duong

Case [2002] QCA 282

SUPREME COURT OF QUEENSLAND

CITATION:

Macauslane v Fisher & Paykel Finance P/L [2002] QCA 282

PARTIES:

DAVID MACAUSLANE
(plaintiff/respondent)
v
FISHER & PAYKEL FINANCE PTY LTD
ACN 074 265 197
(defendant/appellant)

FILE NO/S:

Appeal No 9513 of 2001
DC No 1973 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2002

JUDGES:

McMurdo P, White and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.        Application for leave to appeal granted
2.        Appeal dismissed
3.        Cross-appeal allowed
4.        Judgment below set aside and in lieu thereof  
           judgment be entered for the respondent in the
           amount of $51,503.58
5.        Appellant to pay the respondent’s costs of the trial            on an indemnity basis to be assessed, and the            respondent’s costs of the application for leave, of            the appeal, and of the cross-appeal to be assessed            on a standard basis

CATCHWORDS:

EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – DURATION AND TERMINATION OF EMPLOYMENT – TERMINABLE ON REASONABLE NOTICE – where respondent, whose employment with the appellant was terminated, was awarded damages in lieu of nine months notice of termination – whether determining period of reasonable notice was an exercise of discretion or a question of fact
EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – DURATION AND TERMINATION OF EMPLOYMENT – TERMINABLE ON REASONABLE NOTICE – where letter of employment failed to stipulate period of notice to be given to respondent upon termination of contract of employment – whether what is reasonable should be determined by application of a presumption or reciprocity – whether the period of notice specified as required from employee should equally be regarded as appropriate upon termination by the employer

EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – DURATION AND TERMINATION OF EMPLOYMENT – TERMINABLE ON REASONABLE NOTICE – whether financial circumstances of the employer should be taken into account when determining what constitutes reasonable notice

EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – REMUNERATION – MATTERS AFFECTING RIGHT – TERMINATION OF CONTRACT – whether damages award should have included the value of the contribution the appellant would have made to the respondent’s superannuation over the period of notice – whether, upon entry of the contract of employment, the appellant assumed a legal obligation imposed by the statute to pay superannuation – whether respondent’s loss of that benefit for the period of notice arises directly from the appellant’s breach of contract in failing to give the required notice

EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – REMUNERATION – MATTERS AFFECTING RIGHT – TERMINATION OF CONTRACT – where no…

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Details
AGLC
R v Duong [2002] QCA 282
Case
[2002] QCA 282
Decision Date

CaseChat Overview and Summary

The case of R v Duong involved the respondent, who was employed by the appellant, having his employment terminated. The respondent was awarded damages in lieu of nine months' notice of termination. The primary issue before the court was whether determining the period of reasonable notice was an exercise of discretion or a question of fact. Additionally, the court had to consider whether the period of reasonable notice should be determined by a presumption of reciprocity or if the notice period specified for the employee should be considered appropriate for the employer's termination of the contract.

The court concluded that determining the period of reasonable notice was a question of fact, not an exercise of discretion. The court found that the absence of a specified notice period in the letter of employment did not warrant the application of a presumption of reciprocity. The court also held that the financial circumstances of the employer should not be taken into account when determining what constitutes reasonable notice. Furthermore, the court ruled that the employer's legal obligation to pay superannuation imposed by statute did not result in the respondent's loss of that benefit for the period of notice arising directly from the employer's breach of contract. Lastly, the court determined that no offsetting allowance should have been made for payments made by the employer, including the respondent's accrued entitlement to annual leave, as there was no contractual provision for leave loading.

The court granted the application for leave to appeal, dismissed the appeal, and allowed the cross-appeal. The judgment below was set aside, and in its place, judgment was entered for the respondent in the amount of $51,503.58. The appellant was ordered to pay the respondent's costs of the trial on an indemnity basis, as well as the respondent's costs of the application for leave, of the appeal, and of the cross-appeal on a standard basis.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal dismissed

3. Cross-appeal allowed

4. Judgment below set aside and in lieu thereof

judgment be entered for the respondent in the

amount of $51,503.58

5. Appellant to pay the respondent’s costs of the trial on an indemnity basis to be assessed, and the respondent’s costs of the application for leave, of the appeal, and of the cross-appeal to be assessed on a standard basis

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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