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Sutton v BE Australia WD Pty Ltd (No 3)

Sutton v BE Australia WD Pty Ltd (No 3)

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Supreme Court

New South Wales

Medium Neutral Citation: Sutton v BE Australia WD Pty Ltd (No 3) [2017] NSWSC 689
Hearing dates: 25 November 2016; 9 and 27 February 2017
Date of orders: 01 June 2017
Decision date: 01 June 2017
Jurisdiction: Common Law
Before: Walton J
Decision:
The plaintiff shall bring in short minutes of order of the declarations which the Court proposes to make in accordance with this judgment within 7 days. Further, the plaintiff shall file further submissions as to the settlement reached with the second defendant and interest in accordance with this judgment within 28 days of the publication of judgment. Leave is granted to the file further evidence by affidavit bearing upon those issues within the same timeframe.

Catchwords: UNFAIR CONTRACT – ex parte proceedings – claim for declaratory relief and monetary payments pursuant to s 106(1) and (5) of the Industrial Relations Act 1996 – whether the contract or arrangement was unfair, harsh or unconscionable or against the public interest – transitional provisions – regard to record of Industrial Court save for evidence objected to – arrangements constituted contract for purposes of s 106 – no jurisdictional barrier under s 108A the Industrial Relations Commission Rules 2009 – grounds concern unfairness regarding termination, bullying and disparagement – no protection from arbitrary and immediate termination – termination without notice – contract unfair in operation – termination likely to and did cause the plaintiff to suffer hurt, distress and humiliation – no protection from bullying and harassment – no provision for the timely resolution of any complaint or grievance – insufficient evidence to support disparagement ground – contract was unfair and harsh for the purposes of s 105(1)(a) – declaratory relief granted – monetary orders – relevant common law principle regarding notice – additional factors under s 106 – compensation for distress, stress, damage to reputation and humiliation – mitigation – settlement second defendant – avoiding risk of double counting – interest, costs – directions for further submissions and evidence
Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Industrial Relations Act 1996 (NSW)
Industrial Relations Amendment (Industrial Court) Act 2016 (NSW)
Industrial Relations Commission Rules 2009 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Uniform Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32; [1999] NSWIRComm 449
AHI Healthcare Systems v Clinical Associates of Australia [2001] NSWIRComm 38
AOS Group Australia Pty Ltd (in liquidation) v Arrogante (2004) 135 IR 44; [2004] NSWIRComm 80
Australian Co-operative Foods Ltd v SW & JD Reilly and Sons Pty Ltd (2011) 80 NSWLR 575; [2011] NSWCA 148
Barclays Australia Investment Services Ltd v Nordby (1995) 99 IR 258
Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd (No 2) [1988] 2 All ER 880
Bowker v Software Engineers Australia (NSW) Pty Ltd [2004] NSWIRComm 104
Brown v Rezitis (1970) 127 CLR 157; [1971] ALR…

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: [2017] NSWSC 689
Decision Date: 01 June 2017

CaseChat Overview and Summary

In Sutton v BE Australia WD Pty Ltd (No 3), the applicant sought relief against the respondent employer for an unfair contract under the Industrial Relations Act 1996. The applicant claimed declaratory relief and monetary payments under sections 106(1) and (5) of the Act, alleging that the contract or arrangement was unfair, harsh, or unconscionable or against public interest. The Industrial Relations Commission was the court where this dispute was heard.

The legal issues that the Commission had to decide included whether the contract or arrangement was unfair, harsh, or unconscionable or against the public interest. The Commission also had to determine whether the grounds of unfairness concerning termination, bullying, and disparagement were supported by evidence. Another issue was whether the contract provided sufficient protection from arbitrary and immediate termination, bullying, and harassment, and if there was a provision for the timely resolution of any complaint or grievance. The Commission had to consider the relevant common law principles regarding notice, additional factors under section 106, and compensation for distress, stress, damage to reputation, and humiliation.

The Commission found that the contract was unfair and harsh for the purposes of section 105(1)(a) of the Act. The applicant had no protection from arbitrary and immediate termination, bullying, and harassment, and there was no provision for the timely resolution of any complaint or grievance. The Commission concluded that the contract was unfair in operation and that termination was likely to and did cause the applicant to suffer hurt, distress, and humiliation. However, there was insufficient evidence to support the disparagement ground. The Commission granted declaratory relief and monetary orders for compensation for distress, stress, damage to reputation, and humiliation. The Commission also directed further submissions and evidence on interest, costs, and mitigation, and avoiding the risk of double counting.

The final orders of the Commission included declaratory relief, monetary orders for compensation, interest, costs, and mitigation, and directions for further submissions and evidence. The Commission also directed the parties to avoid the risk of double counting.

Orders