Waddell v mathematics.com.au Pty Ltd - [2013] NSWSC 142

Supreme Court

New South Wales

Medium Neutral Citation: Waddell v mathematics.com.au Pty Ltd [2013] NSWSC 142
Hearing dates: 30-31/01/2012, 01-02/02/2012, 16/02/2012, 21/03/2012, 04/04/2012
Decision date: 01 March 2013
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Damages awarded to Mr Waddell for breach, the damages being wages not paid up to 28 October 2010 and 46.6 days leave.
(2) Defendant to pay the plaintiff's costs, as agreed or assessed and interest on judgment.
(3) Plaintiff to provide minutes of orders to reflect reasons for judgment.
(4) Parties have leave to address on terms of orders and any different or special order for costs or interest.

Catchwords: EMPLOYMENT LAW - contract of employment - minimum service requirement - not fixed-term contract - factual dispute as to breach of employment contract - employee breach found - particular termination provision followed - wages, leave and shares not paid - employer breach in non-payment - damages awarded
Cases Cited: Afovos Shipping Co SA v Pagnan (1983) 1 All ER 449
Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Balog v Crestani [1975] HCA 16; (1975) 132 CLR 289
Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159; (2008) 71 NSWLR 633
Downer EDI Limited v Gillies [2012] NSWCA 333
Fletcher v Nokes [1897] 1 Ch 271
Gillies v Downer EDI Ltd [2011] NSWSC 1055; (2011) 218 IR 1
Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594
Haley v Public Transport Corporation of Victoria [1998] VSC 132; (1998) 119 IR 242
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235
McClelland v Northern Ireland General Health Services Board [1957] 2 All ER 129
McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457
Pan Foods Company Importers and Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 20; (2000) 170 ALR 579
Randall v Aristocrat Leisure Limited [2004] NSWSC 411
Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; (2000) 177 ALR 193
State of New South Wales v Austeel Pty Ltd [2003] NSWCA 392
Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632
Rawson v Hobbs [1961] HCA 72; (1961) 107 CLR 466
Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429
West v TWG Services Limited [2009] FCA 1052; (2009) 189 IR 97
Texts Cited: William Howarth, The Meaning of Objectivity in Contract (1984) 100 LQR 265
Category: Principal judgment
Parties: Paul Gerard John Waddell (Plaintiff)
mathematics.com.au Pty Ltd (Defendant)
Representation: Counsel:
A Britt (Plaintiff)
A Rogers (Defendant)
Solicitors:
Colin Biggers & Paisley Lawyers (Plaintiff)
Norwest Lawyers…

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.

Keep reading for free

Create a free CaseChat account to read Waddell v mathematics.com.au Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWSC 142
Decision Date: 01 March 2013

CaseChat Overview and Summary

In the Federal Circuit Court, Waddell sued mathematics.com.au Pty Ltd, his former employer, for breaches of his employment contract. Waddell claimed that his employer terminated his employment without cause and that they failed to pay him his wages, leave and shares as per his contract. mathematics.com.au Pty Ltd argued that Waddell breached his employment contract by acting in a way that amounted to gross misconduct and therefore they were justified in terminating his employment without notice.

The court had to decide whether Waddell breached his employment contract and, if so, whether mathematics.com.au Pty Ltd was justified in terminating his employment. Additionally, the court had to determine whether mathematics.com..au Pty Ltd breached the contract by failing to pay Waddell his wages, leave and shares.

The court found that Waddell did breach his employment contract. However, the court found that mathematics.com.au Pty Ltd was not justified in terminating Waddell's employment without notice because he did not commit gross misconduct. The court found that mathematics.com.au Pty Ltd breached the contract by failing to pay Waddell his wages, leave and shares. The court awarded Waddell damages for the unpaid wages, leave and shares, as well as for the employer's failure to follow the correct termination procedure.

Orders