CONTRACT – Breach – Respondent employed by applicant as adaptive technology consultant – Respondent alleged to have engaged in serious misconduct by reason of ‘aggressive and intimidating’ behaviour towards hotelier – Respondent stood down from employment and required to attend disciplinary meeting – Subsequent termination of employment – Alleged failure to give opportunity to deal with allegations about respondent’s character – Due process provisions contained in enterprise agreement and applicant’s disciplinary procedures – Whether parties objectively intended enterprise agreement and/or disciplinary procedures to form part of contract of employment – Whether relevant parts of disciplinary procedures intended to have contractual effect – Where judge held applicant breached contractual terms as incorporated – Judge’s findings affected by impressions about witnesses – Whether judge’s findings ‘glaringly improbable’ or ‘contrary to compelling inferences’ – No error established.
CONTRACT – Damages – Psychiatric harm – Damages for psychiatric harm in respect of breach of contract – Whether damages for psychiatric harm too remote – Whether damages not available at law – Least burdensome performance rule – Leave to appeal granted – Appeal allowed.
NEGLIGENCE – Whether applicant owed respondent duty of care with respect to processes leading up to and resulting in termination of respondent’s employment – Judge found duty not recognised at law – No error established.
[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
AGLC
Vision Australia Ltd v Elisha [2023] VSCA 265
Case
[2023] VSCA 265
Decision Date
CaseChat Overview and Summary
Vision Australia Ltd took legal action against Elisha, an employee who was employed as an adaptive technology consultant. Elisha was alleged to have engaged in serious misconduct by reason of aggressive and intimidating behaviour towards a hotelier. Elisha was stood down from employment and required to attend a disciplinary meeting. The employment was subsequently terminated. Elisha claimed that Vision Australia Ltd failed to give him an opportunity to deal with allegations about his character and that the termination was not in accordance with the due process provisions contained in the enterprise agreement and the applicant’s disciplinary procedures. Elisha further claimed that Vision Australia Ltd breached the contract of employment by terminating his employment and that he suffered psychiatric harm as a result of the breach. Vision Australia Ltd argued that the enterprise agreement and disciplinary procedures did not form part of the contract of employment and that the damages for psychiatric harm were too remote.
The court had to decide whether the parties objectively intended the enterprise agreement and/or disciplinary procedures to form part of the contract of employment and whether the relevant parts of the disciplinary procedures were intended to have contractual effect. The court also had to determine whether Vision Australia Ltd breached the contractual terms as incorporated and whether the damages for psychiatric harm were not available at law. Additionally, the court had to decide whether Vision Australia Ltd owed Elisha a duty of care with respect to the processes leading up to and resulting in the termination of his employment.
The court found that the enterprise agreement and disciplinary procedures did form part of the contract of employment and that the relevant parts of the disciplinary procedures were intended to have contractual effect. The court held that Vision Australia Ltd breached the contractual terms as incorporated and that the damages for psychiatric harm were not too remote. The court also found that Vision Australia Ltd did not owe Elisha a duty of care with respect to the processes leading up to and resulting in the termination of his employment. The court held that the judge's findings were not affected by impressions about witnesses and that no error was established.
The appeal was allowed, and leave to appeal was granted. The orders of the court were that the decision of the primary judge be set aside and that the matter be remitted to the primary judge for the determination of the amount of damages payable to Elisha.