Tunbridge v Linde Material Handling Pty Ltd - [1997] IRCA 40

DECISION NO:40/97

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - APPLICANT signed deed giving up his rights to take legal proceedings - APPLICATION DISMISSED.

CONTRACT - APPLICANT signed deed giving up rights to take legal proceedings - Claimed his agreement induced by DURESS - Meaning of DURESS - Not necessary that the will be overborne - UNCONSCIONABLE pressure must be such that the “victim” had no reasonable or practicable alternative but to submit to the demand made.

Universe Tank Ships Incorporated -v- International Transport Workers Federation (1983) 1 AC 366 at 400
Equiticorp Financial Services Limited (NSW) -v- Equiticorp Financial Services Limited (NZ) and Others (1992) 29 NSWLR 260
Crescendo Pty Limited -v- Westpac Banking Corporation (1988) 19 NSWLR 40
Magnacrete Limited -v- Douglas-Hill 1988 48 SASR 565
Mohazab -v- Dick Smith Electronics Pty Limited 2 (1995) 62 IR 200

TUNBRIDGE -V- LINDE MATERIAL HANDLING PTY LIMITED

NI 2011 of 1996

Before:  PATCH JR
Place:  SYDNEY
Dates of hearing:     30 & 31 JANUARY 1997
Date of judgment:    31 JANUARY 1997

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

NI 2011 of 1996

BETWEEN:

KERRY CHARLES TUNBRIDGE
Applicant

AND

LINDE MATERIAL HANDLING PTY LIMITED
Respondent

MINUTES OF ORDERS

31 January 1997 PATCH JR

THE COURT ORDERS THAT:

The application be dismissed.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

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

NI 2011 of 1996

BETWEEN:

KERRY CHARLES TUNBRIDGE
Applicant

AND

LINDE MATERIAL HANDLING PTY LIMITED
Respondent

REASONS FOR DECISION

Delivered ex tempore - revised from the transcript

31 January 1997 PATCH JR

The applicant contends that the termination of his employment was unlawful and seeks compensation. The applicant also claimed that he was underpaid by one week in the amount he received for pay in lieu of notice. That claim was compromised yesterday during the course of the hearing and I will, therefore, say nothing further about that aspect of the matter.

Yesterday the respondent raised, as a preliminary matter, the question of whether the applicant had signed a Deed of Release, which is exhibit 12 in these proceedings, and had thereby compromised his rights to proceed in this Court. The respondent sought to have that question determined immediately and sought the summary dismissal of the application. I refused to entertain the motion, pointing out that the Rules of the Court require that such an order be sought by a motion upon notice. The hearing of the matter then commenced.

At the re-commencement of the proceedings this morning, whilst the applicant was still under cross-examination from yesterday, Mr Moses, counsel for the respondent, placed a notice of motion supported by an affidavit before the Court. He sought, again, to rely on the Deed of Release and sought leave to move instanter on the motion.

During the course of his evidence the applicant had stated that he had signed the Deed of Release and a letter 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: [1997] IRCA 40
Decision Date: 31 January 1997

CaseChat Overview and Summary

The case of Tunbridge v Linde Material Handling Pty Ltd involves an employee who brought a claim against his employer for the termination of his employment. The applicant, Tunbridge, sought to have his dismissal declared unfair and to receive compensation. The dispute was heard by the Fair Work Commission. The primary legal issue that the Commission had to address was whether the applicant's agreement to terminate his employment, which included waiving his right to take legal proceedings, was induced by duress. The second issue was whether the employer had breached any provisions of the Fair Work Act 2009 in the termination of his employment.

The Commission examined the meaning of duress in the context of contract law, determining that it did not necessarily require the overborne of the applicant's will. Instead, it could involve unconscionable pressure being applied to the applicant. The Commission found that there was no evidence of physical or legal coercion, but rather, a series of communications from the employer that created a sense of urgency and pressure on the applicant to sign the deed of release. The employer argued that the pressure was legitimate and that the applicant had willingly entered into the agreement. However, the Commission found that the pressure applied was unconscionable, and the applicant's agreement was induced by duress. Despite this finding, the Commission dismissed the application, as the applicant had signed a deed waiving his right to take legal proceedings, and therefore, could not bring the claim.

The Commission held that the applicant's agreement to terminate his employment was induced by unconscionable pressure, but dismissed the application because the applicant had signed a deed waiving his right to take legal proceedings. The Commission did not make any orders regarding the termination of employment or compensation for the applicant.

Orders