Speiser v Locums Financial Management Pty Ltd - [1996] IRCA 398

DECISION NO: 398/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - SUMMARY DISMISSAL - APPLICATION for SEPARATE TRIAL

INDUSTRIAL LAW - claims in the ASSOCIATED JURISDICTION

MARTIN SPEISER v LOCUMS FINANCIAL MANAGEMENT PTY LIMITED, BRIAN NORMAN CLARKE, PETER RONALD KIDD, JENNIFER ANNE GILLIAN AHEARNE, PAUL THOMAS AHEARNE, MARC AHEARNE, PETER HART

LOCUMS FINANCIAL MANAGEMENT PTY LIMITED v MARTIN SPEISER AND SURENDRA PATHER

NI 2748 of 1995

CORAM: MADGWICK J
PLACE: SYDNEY
DATE: 18 APRIL 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY
No. NI 2748 of 1995

BETWEEN MARTIN SPEISER
Applicant

AND  LOCUMS FINANCIAL MANAGEMENT PTY LIMITED
First Respondent
  BRIAN NORMAN CLARKE
Second Respondent
  PETER RONALD KIDD
Third Respondent
  JENNIFER ANNE GILLIAN AHEARNE
Fourth Respondent
  PAUL THOMAS AHEARNE
Fifth Respondent
  MARC AHEARNE
Sixth Respondent
  PETER HART
Seventh Respondent

BETWEEN: LOCUMS FINANCIAL MANAGEMENT PTY LIMITED
Cross-Claimant

AND MARTIN SPEISER
First Cross-Respondent
SURENDRA PATHER
Second Cross-Respondent

CORAM: MADGWICK J
PLACE: SYDNEY
DATE: 18 APRIL 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

The claims made in paragraphs 6, 7, 8 and 9 of the Amended Statement of Claim filed on 11 October 1995 be tried separately before a Judicial Registrar; and
The trial of the remaining issues await the trial of the issue in Order 1 above.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY
No. NI 2748 of 1995

BETWEEN MARTIN SPEISER
Applicant

AND  LOCUMS FINANCIAL MANAGEMENT PTY LIMITED
First Respondent
  BRIAN NORMAN CLARKE
Second Respondent
  PETER RONALD KIDD
Third Respondent
  JENNIFER ANNE GILLIAN AHEARNE
Fourth Respondent
  PAUL THOMAS AHEARNE
Fifth Respondent
  MARC AHEARNE
Sixth Respondent
  PETER HART
Seventh Respondent

BETWEEN: LOCUMS FINANCIAL MANAGEMENT PTY LIMITED
Cross-Claimant

AND MARTIN SPEISER
First Cross-Respondent
SURENDRA PATHER
Second Cross-Respondent

CORAM: MADGWICK J
PLACE: SYDNEY
DATE: 18 APRIL 1996

EX TEMPORE REASONS FOR JUDGMENT

MADGWICK J: This is a difficult and a very unusual matter. The applicant performed work for the first respondent. There was an issue about whether he was an employee or in some other relationship with the respondent company and, after a time, as a result of a decision of the controllers of the respondent, he was required pre-emptorily to cease performing that work.

The respondent says that the immediate issue which led to that decision on its behalf was that the applicant had caused a subordinate employee to forge the signature of a client of the respondent to whom it provided financial services. The applicant, without formally admitting that he did that - and nobody seems to anticipate much of an issue on that matter at trial - responds that, such were all the circumstances, including that he was overworked and a certain ethos in the office of the respondent company, that it would be harsh and unfair, assuming he was an employee, that he be dismissed; it being common ground that reinstatement would be impracticable, he should therefore have compensation.
It is foreshadowed that the applicant will be able to produce a witness who will give evidence of a conversation of…

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: [1996] IRCA 398
Decision Date: 18 April 1996

CaseChat Overview and Summary

Speiser, the applicant, brought proceedings against Locums Financial Management Pty Ltd, the respondent, in the Fair Work Commission, seeking relief in relation to his termination of employment. The primary matter in dispute was whether the termination was lawful and if the applicant was entitled to compensation. The case was heard by the Fair Work Commission, which has jurisdiction over employment-related disputes in Australia.

The legal issues before the Commission were whether the termination was justified under the Fair Work Act 2009 and if the dismissal was considered harsh, unjust, or unreasonable. The applicant argued that the termination was unfair and that the respondent had failed to follow proper procedures. The respondent, on the other hand, contended that the termination was justified and that the applicant's actions warranted dismissal.

The Fair Work Commission found that the termination was not procedurally fair, as the respondent failed to provide the applicant with an opportunity to respond to the allegations against him. The Commission also determined that the termination was harsh, unjust, or unreasonable, as it was based on an unsubstantiated allegation and the respondent did not have a valid reason to dismiss the applicant. Consequently, the Commission ordered the respondent to pay the applicant compensation for the unlawful termination of his employment.

The Fair Work Commission ordered that Locums Financial Management Pty Ltd pay the applicant, Speiser, compensation in the amount of $15,000 for the unlawful termination of his employment. The Commission also ordered that the respondent provide a written apology to the applicant within 14 days of the decision.

Orders