Saltmarsh v a T Nichols - [1997] IRCA 22

DECISION NO:22/97

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - whether reasons contained in letter of termination justified termination by reference to the employee’s performance and conduct - allegation of failing to satisfactorily handle money in her care - PROCEDURAL FAIRNESS - whether the employee was given a proper opportunity to respond to the list of allegations contained in the letter of termination - EVIDENCE - whether the Court should draw an adverse inference from the respondent’s failure to call two of the three people involved in the decision to terminate where it was alleged by the applicant that the witness who gave evidence influenced the other decision makers to terminate the applicant

Workplace Relations Act 1996 ss 170DB, 170DC, 170DE(1), 170EE(1), 170EE(2), 170EE(3)

Nicolson v Heaven & Earth Gallery Pty Ltd 1 IRCR 199
Jones v Dunkel (1959) 101 CLR 298
Selvachandran v Peteron Plastics Pty Ltd (1995-96) 62 IR 371
Victoria & Ors v The Commonwealth (1996) 66 IR 392
Thomas v Lynch (unreported, IRCA, Wilcox CJ, 20 December 1996)
Perrin v Des Taylor Pty Ltd (1995) 58 IR 254
Davis v Portseal Pty Ltd (unreported, IRCA, Moore J, 26 November 1996)

KYLIE JAYNE SALTMARSH - v - A T NICHOLS

No. TI 1040 of 1996

Before:          Judicial Registrar Millane
Place:            Melbourne (heard in Hobart)
Date:              10 February 1997

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

TI 1040 of 1996

B E T W E E N :

KYLIE JAYNE SALTMARSH
Applicant

A N D

A T NICHOLS
Respondent

MINUTES OF ORDERS

Judicial Registrar Millane 10 February 1997

THE COURT DECLARES THAT:

On 29 August 1996 the termination of the applicant’s employment by the respondent contravened section 170DC of the Workplace Relations Act 1996.

AND THE COURT ORDERS THAT within 21 days of the date of making these orders:

The respondent pay to the applicant compensation in the sum of $1,500.00.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

TI 1040 of 1996

B E T W E E N :

KYLIE JAYNE SALTMARSH
Applicant

A N D

A T NICHOLS
Respondent

Before:          Judicial Registrar Millane
Place:            Melbourne (heard in Hobart)
Date:              10 February 1997

REASONS FOR JUDGMENT

In this proceeding the applicant seeks compensation alleging that on 29 August 1996 the respondent terminated her employment in contravention of the Workplace Relations Act 1996 (the Act). She claims that the termination effected on the handing to her of a letter bearing that date breached section 170DE(1) and section 170DC of the Act. Mr Cooley, the applicant’s representative, opened the case by seeking compensation and damages for two weeks’ pay in lieu of notice. Notwithstanding this opening claim, the applicant gave evidence that on termination she received two weeks’ pay in lieu of notice and that sum, because of her period of service, represented her statutory entitlement pursuant…

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 Saltmarsh v a T Nichols

Details

AGLC: Saltmarsh v a T Nichols [1997] IRCA 22
Case: [1997] IRCA 22
Decision Date: 10 Feb 1997

CaseChat Overview and Summary

In the case of Saltmarsh v A T Nichols, the applicant, Kylie Jayne Saltmarsh, sought compensation for her dismissal by the respondent, A T Nichols, claiming that the termination contravened the Workplace Relations Act 1996. The respondent defended the proceeding by alleging that the applicant's employment was lawfully terminated due to issues related to her performance and conduct, which were itemised in a letter of termination. The applicant argued that she was not given an opportunity to respond to the allegations made against her, thus contravening section 170DC of the Act.

The court examined the validity of the reasons for termination, as well as whether procedural fairness was observed. The court found that the applicant's termination was justified by valid reasons, but it was also established that the applicant was not provided with the opportunity to respond to the allegations as required by section 170DC of the Act. The court concluded that the applicant had discharged the burden of proving that she was not afforded the required opportunity to respond to the allegations made against her.

In terms of remedy, the court determined that reinstatement was not a suitable option given the circumstances of the case. Instead, the court ordered the respondent to pay the applicant compensation in the sum of $1,500.00, taking into consideration the applicant's gross weekly income and the period between 29 August 1996 and early December 1996. The court also declared that the termination of the applicant's employment contravened section 170DC of the Workplace Relations Act 1996.

Orders