SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
SPARTALIS v BMD CONSTRUCTIONS PTY LTD
[2014] SASCFC 124
Judgment of The Full Court
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Parker)
14 November 2014
EMPLOYMENT LAW - CONTRACT OF SERVICE - FORMATION
EMPLOYMENT LAW - TERMINATION AND BREACH OF CONTRACT - EFFECT OF MAKING NEW CONTRACT
EMPLOYMENT LAW - TERMINATION AND BREACH OF CONTRACT - GROUNDS - MISCONDUCT
EMPLOYMENT LAW - TERMINATION AND BREACH OF CONTRACT - REMEDIES - AGAINST EMPLOYER - DAMAGES
DAMAGES - GENERAL PRINCIPLES - MITIGATION OF DAMAGES - WHAT MATTERS MAY BE CONSIDERED
Appeal and cross-appeal against a judgment of the District Court concerning the summary dismissal of the plaintiff from his employment with the defendant. On appeal, the plaintiff contends that the trial Judge erred in finding that changes in the circumstances of his employment did not give rise to a new employment contract. The plaintiff contends further that an obligation to give reasonable notice of dismissal should be implied as a term of the new contract in lieu of the period of notice fixed under the original contract.
On the cross-appeal, the defendant contends that the trial Judge erred in finding that:
(1) summary dismissal was not justified;
(2) the plaintiff took reasonable steps to mitigate his loss; and
(3) payment in lieu of notice of dismissal be calculated by reference to the employee’s total remuneration package rather than base salary.
Consideration of two further grounds of cross-appeal was deferred.
Held (the Court):
Appeal dismissed. There was no new employment contract. Accordingly there was no implied obligation to give reasonable notice of dismissal (at [46]-[47]).
Cross-appeal dismissed except insofar as it relates to the two grounds deferred for later consideration.
(1) Summary dismissal was not justified. Negligence without more does not amount to “gross neglect” or “serious misconduct”, notwithstanding that the consequences are serious (at [90]-[93]).
(2) The employer is to take into account payments made to another person on the employee’s behalf when determining the payment to be made in lieu of notice of dismissal (at [98]).
(3) The plaintiff made sufficient efforts to find suitable work following his dismissal (at [103]-[105]).
Fair Work Act 2009 (Cth) s 18, s 117(2)(b); Acts Interpretation Act 1901 (Cth) s 15AB, referred to.
Easling v Mahoney Insurance Broker (2001) 78 SASR 489; Quinn v Jack Chia (Aust) Ltd [1992] 1 VR 567; Baster v London and County Printing Works [1899] 1 WB 901; Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; Rankin v Marine Power International Pty Ltd (2001) 107 IR 117; Red Sea Tankers Ltd v Papachristidis (The Hellespont Ardent) [1997] 2 Lloyd's Rep 547; Carter v Dennis Family Corporation [2010] VSC 406, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"gross neglect", "serious misconduct", "failure to mitigate"
SPARTALIS v BMD CONSTRUCTIONS PTY LTD
[2014] SASCFC 124Full Court: Peek, Blue and Parker JJ
THE COURT: This is an appeal and cross-appeal against a judgment of the District Court…
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- Case
- [2014] SASCFC 124
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether Mr Spartalis's conduct amounted to serious misconduct or gross neglect justifying summary dismissal, whether a new employment contract had been formed through variations to his duties and remuneration, and whether the employer had adequately considered payments made to another person on Mr Spartalis's behalf when calculating damages for wrongful dismissal. The Court also considered whether Mr Spartalis had made sufficient efforts to mitigate his loss by seeking alternative employment.
The Court dismissed the appeal, finding that Mr Spartalis's negligence, while established, did not meet the threshold of "gross neglect" or "serious misconduct" as defined in his contract, even considering the serious consequences. It was held that the significant increases in Mr Spartalis's remuneration and the expansion of his duties over time did not, in themselves, indicate the formation of a new employment contract, but rather fell within the scope of the original contract's provisions for salary reviews and the performance of additional tasks. The Court also found that Mr Spartalis had made sufficient efforts to find suitable alternative employment following his dismissal.
The Court dismissed the cross-appeal, except in relation to deferred matters concerning interest and costs. It was ordered that BMD Constructions must take into account payments made to another person on Mr Spartalis's behalf when determining the payment to be made in lieu of notice.
Orders
Orders of the court
Held (the Court):
Appeal dismissed. There was no new employment contract. Accordingly there was no implied obligation to give reasonable notice of dismissal (at [46]-[47]).
Cross-appeal dismissed except insofar as it relates to the two grounds deferred for later consideration.
(1) Summary dismissal was not justified. Negligence without more does not amount to “gross neglect” or “serious misconduct”, notwithstanding that the consequences are serious (at [90]-[93]).
(2) The employer is to take into account payments made to another person on the employee’s behalf when determining the payment to be made in lieu of notice of dismissal (at [98]).
(3) The plaintiff made sufficient efforts to find suitable work following his dismissal (at [103]-[105]).
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Those changes and also those that occurred in June 2007 were well within the scope of the broadly expressed position description without reference to the contractual obligation that Mr Spartalis perform other duties as directed. It was simply the case that Mr Spartalis’ workload and responsibility grew as the business of Urbex expanded. That did not take his duties beyond the scope of those he had been engaged to perform.Increased remuneration When he commenced with BMD Constructions in 2003 Mr Spartalis received a base salary of $110,000 together with use of a motor vehicle valued at up to $24,000 per annum and a 9% superannuation contribution. The PAYG payment summaries issued to Mr Spartalis show that his gross income for the year ending 30 June 2004 was approximately $158,000. On 30 June 2005 the Chairman of the BMD Group Board advised Mr Spartalis that his base salary had been reviewed and was to be increased to $204,000 per annum. The memorandum referred to the record turnover and profit achieved by the BMD Group as did two that followed in 2008 and 2010 dealing with the same issue. There was no suggestion in these documents that the salary review related to a fresh contract. On 1 July 2008 the BMD Group Chairman advised Mr Spartalis that his base salary was to be increased to $220,500 per annum from the next pay period. On 8 February 2010 Mr Spartalis was advised by the Chairman that his base salary was to be increased to $233,000 with effect from the first pay period in February 2010. The PAYG payment summary issued to Mr Spartalis indicated a gross income of about $236,000 for the year ending 30 June 2005. That comprised salary of $176,000 and a bonus of $60,000. His gross income for the 2005/06 financial year was approximately $269,000. In 2006/07 it had increased to $287,000, in 2007/08 it was $299,000, in 2008/09 it was $310,000 and in 2009/10 it was $291,000. The difference between the amounts referred to in the salary review documentation and that disclosed in the PAYG statements is explained by the bonuses. The evidence of Mr Spartalis was that these bonuses were generally in the order of $50,000 to $60,000 but in the 2006/07 year he was paid a bonus of $75,000. Mr Spartalis accepted that the bonus payments were discretionary and dependent upon a decision each year by the Group Chairman that took into account the performance of the BMD Group. Mr Spartalis also said that he had not received bonuses before the change in his title to National Manager. While Mr Spartalis’ total remuneration increased significantly over the seven years that he was employed, that was contemplated by the 2003 contract which provided for periodic reviews of his salary. Leaving aside the commencement of bonus payments from 2005, there was not a sharp increase in remuneration in either 2005 or 2007 that was inconsistent with the overall pattern of annual increases. The increases were not so substantial as to suggest that there must have been a new contract. They were clearly within the scope of the annual review clause.