Rogan-Gardiner v Woolworths Ltd - [2012] WASCA 31

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ROGANGARDINER -v- WOOLWORTHS LTD [2012] WASCA 31

CORAM: McLURE P
NEWNES JA
ALLANSON J

HEARD: 11 NOVEMBER 2011

DELIVERED : 21 FEBRUARY 2012

FILE NO/S: CACV 118 of 2010

BETWEEN: MICHELLE ROGANGARDINER
Appellant
AND
WOOLWORTHS LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HALL J
Citation  :ROGAN-GARDINER -v- WOOLWORTHS LTD [No 2] [2010] WASC 290
File No  :CIV 2149 of 2004

Catchwords:

Employment law - Implied term that employer give reasonable notice of termination - Termination of employment without reasonable notice - Assessment of damages - Relevant principles - Determination of period of reasonable notice - Factors to be taken into account - State financial services manager - Middle management position - Appeal against finding that reasonable period of notice was four months dismissed

Legislation:

Minimum Conditions of Employment Act 1993 (WA), s 39(b)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P R MacMillan
Respondent: Ms G A Archer SC

Solicitors:

Appellant: Jackson McDonald
Respondent: Clayton Utz

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

Addis v Gramophone Co Ltd [1909] AC 488
Australian Blue Metal Ltd v Hughes [1963] AC 74
Bagnall v National Tobacco Corporation of Australia Ltd (1934) 34 SR (NSW) 421
Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Dellys v Elderslie Finance Corp Ltd [2002] WASCA 161; (2002) 132 IR 385
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Edward Keller (Australia) Pty Ltd v Hennelly (1990) 35 IR 464
Gunton v Richmond‑upon‑Thames London Borough Council [1981] 1 Ch 448
Guthrie v News Ltd [2010] VSC 196; (2010) 27 VR 196
Harding v Harding (1928) 29 SR (NSW) 96
House v The Queen [1936] HCA 40; (1936) 55 CLR 499
IOOF Building Society Pty Ltd v Foxeden Pty Ltd [2009] VSCA 138; (2009) 23 VR 536
Irons v Merchant Capital Ltd (1994) 116 FLR 204
Lau v Bob Jane T-Marts Pty Ltd [2004] VSC 69
Macauslane v Fisher & Paykel Finance Pty Ltd [2002] QCA 282; [2003] 1 Qd R 503
Quinn v Jack Chia (Australia) Ltd (1992) 1 VR 567
Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117
Reilly v Praxa Ltd [2004] ACTSC 41
Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217; (2008) 72 NSWLR 559
Saad v TWT Ltd [1998] NSWCA 199
Sorrell v Kara Kar Holdings Pty Ltd [2010] NSWSC 1315

McLURE P: I agree with Newnes JA. The trial and the appeal were conducted on the basis that the relevant legal principles are settled and provide a coherent framework for the determination of the issues between the parties.
It is certainly settled that,…

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: [2012] WASCA 31
Decision Date: 21/02/12

CaseChat Overview and Summary

In the case of Rogan-Gardiner v Woolworths Ltd, the appellant, Rogan-Gardiner, brought proceedings against Woolworths Ltd, the respondent, alleging breaches of her employment contract, including failure to provide reasonable notice of termination. The dispute arose following a national restructure of Woolworths' business that resulted in the abolition of Rogan-Gardiner's position. Although the respondent offered her several alternative positions, none were acceptable to her. Consequently, Woolworths terminated her employment, and she sought compensation for the alleged breach. The case was heard and determined by the court, which had to address specific legal issues concerning the implied term of reasonable notice in employment contracts.

The court was required to decide whether the period of reasonable notice provided by the respondent to the appellant was appropriate. This involved determining the relevant principles governing the assessment of reasonable notice, including the factors that should be taken into account in making this assessment. The central issue was whether the four-month period of notice offered by Woolworths was reasonable under the circumstances. The court had to consider the nature of Rogan-Gardiner's position as a state financial services manager in middle management and the specific characteristics of the employment market at the time of the termination.

In resolving these issues, the court held that the implied term of reasonable notice in an employment contract is to be determined by assessing what is reasonable as at the date of notification, taking into account all relevant circumstances. The court noted that the determination of what constitutes reasonable notice is discretionary, as explained by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. The court acknowledged the wide range of factors that might be considered relevant in determining the reasonableness of notice but emphasised that these factors should be understood in the context of the purpose of the contractual requirement of reasonable notice. The court dismissed the appeal against the finding that the reasonable period of notice was four months, concluding that the respondent's actions were reasonable under the circumstances.

Orders

Orders of the court

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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

It is certainly settled that, in the absence of an express provision relating to termination in a contract of employment, a term will be implied that the parties must give reasonable notice of termination except in circumstances justifying summary termination. What is a reasonable period of notice is to be determined as at the date of notification having regard to all relevant circumstances. The decision on the issue of reasonableness is discretionary in the sense explained by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194:'Discretion' is a notion that 'signifies a number of different legal concepts'. In general terms, it refers to a decision-making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result'. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made [19]. The approach to reasonableness in the cases is to list a wide range of factors said to be relevant without explaining why they are relevant or whether they weigh for or against the opposing positions of the employee and employer. See Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 [217] ‑ [236]; Macauslane v Fisher & Paykel Finance Pty Ltd [2003] 1 Qd R 503. The purpose of the objectively intended contractual requirement of reasonable notice is central to an understanding of what is relevant and why. It is said the length of the notice period is what is reasonable 'to enable the employee to obtain new employment of a similar nature': Rankin [220]; Macauslane [24] ‑ [26]. I have reservations as to the correctness of that proposition. The formulation is arguably wide enough to encompass all personal characteristics of a particular employee, including those unknown or not in existence at the date of entry into the contract, which would adversely impact on that person's actual future employment prospects. That cannot be correct. It would also bring to account difficulties in obtaining alternative employment due to labour market conditions. It would have the counterintuitive result of requiring longer periods of notice during challenging economic times when unemployment is high. Moreover, the emphasis on new employment of a 'similar nature' has had the consequence that very senior well‑paid employees are ordinarily entitled to longer periods of notice than lowly NEWNES JA: This appeal arises out of the termination of the appellant's employment by the respondent. The termination occurred after a national restructure of the respondent's business led to the appellant's position being abolished. The respondent offered the appellant a number of other positions but the appellant did not regard any of them as acceptable. Ultimately, the respondent concluded there was no realistic prospect of a solution being found and it terminated the appellant's employment. The appellant commenced proceedings against the respondent alleging that in terminating her employment it was in breach of the contract of employment in a number of respects, including in failing to give her reasonable notice of the termination.