Sherman, David v Peabody Coal Ltd

[1998] FCA 140

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether threats of physical harm made to supervisor - whether employer had valid reason to terminate having regard to conduct of employee.

Workplace Relations Act 1996 s 170DE(1)

Reader v Wyndham Lodge Nursing Home Ltd, Industrial Relations Court of Australia, unreported, 26 March 1997, Moore J referred to
AWU - FIME Amalgamated Union v Queensland Alumina Limited (1995) 62 IR 385 referred to
Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 referred to
Cornwall v Qantas Airways Limited, unreported, 8 December 1997, Drummond J referred to
Cosco Holdings Pty Ltd v Thu Thi Van Do, 4 December 1997, unreported considered
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 applied
Sangwin v Imogen Pty Ltd, unreported, Industrial Relations Court of Australia, von Doussa J, 8 March 1996 distinguished
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191 applied
Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240 applied
Mainsbridge v Murdoch University Industrial Relations Court of Australia 13 February 1998,
Madgwick J, unreported, followed

SHERMAN v PEABODY COAL LTD
NI 2335 OF 1997

MOORE J
SYDNEY

27 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 2335 of 1997

BETWEEN:	DAVID SHERMAN APPLICANT
AND:	PEABODY COAL LTD RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	27 FEBRUARY 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Subject to orders 2 and 3, the application for review is dismissed.

1. Order 2 of the orders of the Judicial Registrar of 13 June 1997 is varied by ordering reinstatement of the applicant to another position on terms and conditions no less favourable than those on which the applicant was employed immediately before the termination.

1. Order 3 of the orders of the Judicial Registrar of 13 June 1997 is varied by ordering the respondent to pay the applicant the sum of $92,632.30 within 21 days of today less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 2335 of 1997

BETWEEN:	DAVID SHERMAN APPLICANT
AND:	PEABODY COAL LTD RESPONDENT

JUDGE:	MOORE J
DATE:	27 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction
This is a review of a decision of a Judicial Registrar in relation to an application under 170EA of the Workplace Relations Act 1996 concerning the termination of the employment of the applicant, Mr Sherman, on 6 November 1996. The respondent employer is Peabody Coal Ltd (“the company”), which operates a coal mine in the Hunter Valley. The review was conducted as a hearing de novo. Oral evidence was called and witnesses were cross-examined. Evidence-in-chief was either in an affidavit form or was the transcript of the evidence-in-chief given before the Judicial Registrar. Most of the exhibits before…