FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROBERTSON v KNOTT INVESTMENTS PTY LTD | [2010] FMCA 142 |
| TRADE PRACTICES – Misleading or deceptive conduct in relation to employment – representations as to future matters – where applicant approached recruitment agent seeking to relocate to Australia after 22 years abroad – whether respondent represented to applicant that he would be employed for a minimum of three years – where duration of employment not specified in contract and representations on the subject said to be “superseded” and “excluded” by “no reliance” clause – where applicant’s position made redundant after less than 18 months due to substantial economic downturn – whether applicant relied on representation in accepting offer of employment – whether representation based on reasonable grounds – evidentiary onus in s.51A(2) discussed. |
| Trade Practices Act 1974 (Cth), ss.51A, 53B, 82, 87 |
| Sheldrick v WT Partnership (Aust) Pty Ltd [1998] FCA 1794 Damien O’Brien, No Representation Clauses – The Franchisor Strikes Back (2006) 14(2) TPLJ 114 |
| Applicant: | KARL VERNON ROBERTSON |
| Respondent: | KNOTT INVESTMENTS PTY LTD |
| File Number: | SYG 1976 of 2009 |
| Judgment of: | Raphael FM |
| Hearing dates: | 22 & 23 February 2010 |
| Date of Last Submission: | 23 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Britt |
| Solicitors for the Applicant: | Michael Atkinson & Associates |
| Counsel for the Respondent: | Mr R Crow |
| Solicitors for the Respondent: | Workplace Law |
ORDERS
Application dismissed.
Applicant to pay Respondent’s costs to be assessed in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the FMC Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1976 of 2009
| KARL VERNON ROBERTSON |
Applicant
And
| KNOTT INVESTMENTS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in this proceeding seeks relief by way of damages pursuant to s.82 or an order (unspecified) pursuant to s.87 for breach of s.53B of the Trade Practices Act 1974 (the “Act”) which prohibits a corporation from engaging in conduct that is liable to mislead persons seeking employment as to the availability, nature, terms or conditions of or any other matter relating to the employment. The misleading conduct which the applicant alleges was a representation as to the length of his employment which was a representation as to a future matter so that the provisions of s.51A of the Act were applicable. In order to resolve this matter evidence was received from the applicant, from the respondent’s recruitment agent,…
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- Case
- [2010] FMCA 142
- Decision Date
CaseChat Overview and Summary
The court examined the emails and documents exchanged between Robertson and the company, focusing on the draft contract proposed by Robertson and the final contract signed by him. The court held that the final contract signed by Robertson did not include the fixed term provision and instead contained a clause allowing termination with one month’s notice. The court concluded that Robertson’s termination was due to redundancy, which was a valid reason for dismissal. The court found that the company had followed a fair procedure in reducing its workforce and that Robertson’s termination was not retaliatory or in breach of any contractual terms.
The court dismissed Robertson’s application for reinstatement or compensation, finding that the company had acted within its rights under the employment contract. The court ordered Robertson to pay the company’s costs in accordance with the applicable rules.
Orders
Orders of the court
1.
Application dismissed.
2.
Applicant to pay Respondent’s costs to be assessed in accordance with Part 21 Rule 21.02(2)(b) and Schedule 1 of the FMC Rules.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
On 30 October 2007 Mr Higgins emailed Mr Binns advising him that he had had a number of discussions with Mr Robertson surrounding the draft contract. Relevantly, the email stated:“Duration of employmentKarl is not comfortable with the probation period. Karl perceives a probation period as a need for him to demonstrate his abilities in doing what he says he can do. He believes that at this stage in his career he does not need to “prove” himself. He tells me he is prepared to pack up his life and move to Penrith and is seeking a minimum three year contract. He has no problems in his contract being terminated due to a serious breach such as sexual harassment or something else as serious of this nature. Scope of contractKarl would like the eleven points in his draft letter of offer written into his formal letter of offer. Karl wants to be measured on his performance in these areas and would like to be measured and rewarded as certain targets (to be discussed) are achieved in these areas.”Annexed to that email was a document headed “Draft” which I am satisfied was prepared by Mr Robertson. It contains the eleven points under the heading “Scope of Contract and Reporting Relationship” that were referred to in the email. Under the heading “Duration of Contract” it says: “The contract will be valid for a minimum period of three (3) years from date of commencement. It could be extended thereafter by mutual consent.” Under the heading “Notice of Termination” it states:“The contract can be terminated by one month’s notice on either side or pay in lieu thereof.”The document also makes a reference to incentive based pay and says:“The contract with Winnebago will be terminated on completion of the specified period unless it is extended by mutual agreement and notified a minimum of 6 months before the end of the contract.” On 5 November 2007 a further revised letter of offer was sent by Ms Binns to Mr Robertson together with an attached contract of employment. Both the contract and the letter of offer referred to the eleven points under the heading “Scope of Contract and Reporting Relationship” that had been proposed by Mr Robertson. The contract itself was otherwise almost identical to the original one submitted to Mr Robertson on 22 October 2007. It contained the four weeks notice period, there was no reference to any fixed term or to the six months notice of intention to extend the term contained in the draft document annexed to the email. It is common ground that this document was signed by Mr Robertson on the second day of his employment which commenced in January 2008. Mr Robertson remained employed with Winnebago throughout 2008. In December 2008 he telephoned Mr Higgins. He provided Mr Higgins with contact names at a company known as Jayco, which is a vehicle component manufacturer in Melbourne. He asked Mr Higgins to see whether Jayco might be interested in employing him. Mr Higgins called Jayco and then provided that company with some details of his organisation but no position eventuated. Towards the end of March 2009 Mr Robertson went on holiday. During that period his staff were asked to report to a Mr Naylor. They telephoned him and informed him of this. Upon his return Mr Robertson contacted Mr Higgins again informing him that he would like to “get out of Winnebago”. By this time Mr Robertson was aware of moves to significantly reduce the workforce and he had had a meeting with Mr Ben Binns and Jodie Harris. There was a further meeting with Mr Binns and Ms Harris on 6 April 2009 when Mr Robertson was advised that he was being made redundant and his position was terminated for reasons of redundancy. By the time Mr Robertson’s redundancy had occurred the workforce at Winnebago had been reduced by approximately 100 people.