Sterrey v McKechnie - [1997] IRCA 305

IN THE INDUSTRIAL RELATIONS                 )
  )
COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY )  NI 1196 of 1996

BETWEEN: LEE ELIOT STERREY
Applicant

AND:              McKECHNIE METALS PTY LTD
  (ACN 004 290 288) T/As
  McKechnie Consumer Products                   Respondent

JUDICIAL
REGISTRAR: McILWAINE JR
PLACE: SYDNEY
DATED: 11 FEBRUARY 1998

CORRIGENDUM

That the first word on the top of the front page of the judgment, being "Federal" be deleted and replaced with the word "Industrial".

Associate to
Judicial Registrar McIlwaine

11 February 1998

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged unlawful termination of employment - VALID REASON - Dismissal for lack of commitment to his job not a valid reason to terminate - Applicant in advance of approved sales budget target - new increased sales budget proposed - reservations of applicant about capacity to meet budget does not constitute a valid reason for termination - OPPORTUNITY TO RESPOND - Applicant not offered person to assist in defence - not given opportunity to defend himself. MISCONDUCT not serious misconduct to fill in sales call sheets weekly and not daily. PRACTICE AND PROCEDURE - PARTICULARS - particulars of misconduct supplied insufficient to allow a detailed response by applicant other than general denial of misconduct.

Evidence Act, 1995(Cth) s.60
Industrial Relations Act, 1988 (now Workplace Relations Act, 1996)ss170DB, 170DC, 170DE(1) & (2)

Selvanchandran v Peteron Plastics Pty Ltd (1995-96)62 IR 371 Northrop J
Victoria v Commonwealth of Australia (1996)138 ALR129
Perrin v Des Taylor Pty Ltd (1994) 58IR 254 Moore J
Bryant v City of Fairfield RSL Memorial Club Ltd (an unreported IRCA decision No.302/97 dated 16 December 1997) McILwaine JR

STERREY V McKECHNIE

NI 1196 of 1996

MCILWAINE JR
SYDNEY
23 DECEMBER 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 1196 of 1996

BETWEEN

LEE ELIOT STERREY
Applicant

AND

McKECHNIE METALS PTY LTD
(ACN004 290288) Trading as
McKechnie Consumer Products
Respondent

BEFORE:      MCILWAINE JR
PLACE:        SYDNEY
DATE:          23 DECEMBER 1997

MINUTES OF ORDERS

THE COURT DECLARES THAT:

The respondent has contravened Section 170DE(1) of the Act.

The respondent has contravened Section 170DC of the Act

The respondent has not contravened section 170DB of the Act.

It is impractical to reinstate the Applicant in any position with the respondent.

THE COURT ORDERS THAT:

The respondent to pay to the applicant within 21 days of today the amount of $26,310.00.

Any sum paid within 21 days of today to the Australian Taxation Office, on account of the applicant with respect to the sum ordered in paragraph 5 shall be pro tanto satisfaction of the obligation of the respondent under Order 5.

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

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 1196 of 1996

BETWEEN:

LEE ELIOT STERREY
Applicant

AND

McKECHNIE METALS PTY LTD
(ACN004 290288) Trading as
McKechnie Consumer Products
Respondent

BEFORE:      MCILWAINE JR
PLACE:        SYDNEY
DATE:          23 DECEMBER 1997

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 Sterrey v McKechnie

Details

AGLC: Sterrey v McKechnie [1997] IRCA 305
Case: [1997] IRCA 305
Decision Date: 23 December 1997

CaseChat Overview and Summary

Lee Eliot Sterrey brought an application for unlawful termination of employment against McKechnie Metals Pty Ltd in the Industrial Relations Court of Australia. The applicant had been employed as a sales representative for the respondent for approximately 2 1/2 years. The applicant sought a declaration that the termination of his employment was unlawful, reinstatement, and compensation. The respondent raised a defence of valid reason for termination, opportunity to respond, and misconduct. The court found that the respondent had not provided a valid reason for terminating the applicant's employment. The court also found that the applicant was not given the opportunity to respond to the allegations against him. The court found it impractical to reinstate the applicant and ordered the respondent to pay compensation of $26,294.00 to the applicant.

Orders