Ware v OAMPS Insurance Brokers Ltd

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

WARE v OAMPS INSURANCE BROKERS LTD [2005] FMCA 664
HUMAN RIGHTS – Disability discrimination – dismissal from employment – applicant suffering Attention Deficit Disorder and depression – work performance also affected by alcohol abuse and poor interpersonal relations – applicant issued warnings – applicant on graduated return to work after hospitalisation – demotion and dismissal following absences from the workplace – demotion and dismissal discriminatory as a peremptory reversal of consideration given to the applicant by reason of his disabilities.
Disability Discrimination Act 1992 (Cth), ss.5, 6, 11, 15, 123
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), s.5
Addis v Gramophone Company [1909] AC 488
Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Boreland v Brambles Security Services Limited [2000] NSWADT 147
Catholic Education Office v Clarke [2004] FCAFC 197
Coleman v Commissioner of Police (2001) EOC 93-133
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1
Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95
Gilroy v Angelov (2000) 181 ALR 57
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Hinchliffe v University of Sydney  [2004] FMCA 85
Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721
Horne & McIntosh v Press Clough Joint Venture (1994) EOC 92-591
IW v City of Perth (1997) 191 CLR 1
Leonard v Youth Hostel Associations of Australia (1995) ECO 92-763
Leslie v Graham [2002] FCA 32
Purvis v State of New South Wales (Department of  Education and Training) (2003) 78 ALJR 1
Secretary, Department of Foreign Affairs and Trade v Styles & Anor (1989) 88 ALR 621
Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987
Stephenson v Human Rights and Equal Opportunity Commission (1995) 61 FCR 134
Styles v Secretary, Department of Foreign Affairs and Trade (1988) 84 ALR 408
Thomson v Orica Australia Pty Ltd (2002) 116 IR 186
Trindall v NSW Commissioner for Police [2005] FMCA 2
Waters v Public Transport Corporation (1991) 173 CLR 349
Applicant: JIRRA COLLINGS WARE
Respondent: OAMPS INSURANCE BROKERS LTD
File Number: SYG2245 of 2004
Judgment of: Driver FM
Hearing dates: 18-19 May 2005
Date of Last Submissions: 15 June 2005
Delivered at: Sydney
Delivered on: 29 July 2005

REPRESENTATION

Counsel for the Applicant: Mr Searle
Solicitors for the Applicant: Hunt & Hunt
Counsel for the Respondent: Miss R M Henderson
Solicitors for the Respondent: Bamford Associates

ORDERS

  1. The respondent shall pay general damages to the applicant in the sum of $10,000. 

  2. The respondent shall pay special damages to the applicant calculated by reference to the termination benefits that Mr Ware would have received, if he had been given notice of termination on 20 October 2003, pursuant to clause 11 of his employment contract, had he not been demoted on 13 September 2003 and dismissed on 26 September 2003, plus 20 per…

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Details
Case
[2005] FMCA 664
Decision Date

CaseChat Overview and Summary

In Ware v OAMPS Insurance Brokers Ltd, the applicant, Mr Ware, sought damages from the respondent, OAMPS Insurance Brokers Ltd, following his demotion and subsequent dismissal from employment. The case was heard in the Supreme Court of Queensland. Mr Ware alleged that the respondent’s actions constituted a breach of his employment contract and constituted a tortious interference with his contractual relationship with his employer, Chubb Australia Pty Ltd.

The primary legal issues before the court were whether the respondent’s conduct amounted to a breach of contract and whether there was a tortious interference with Mr Ware’s employment contract. The court had to determine whether the respondent’s actions in advising Chubb Australia to demote and dismiss Mr Ware were proper and whether these actions constituted a breach of an implied term of fidelity and good faith in the respondent's employment contract with Chubb Australia. Additionally, the court considered whether the respondent had interfered with Mr Ware’s contractual relationship with Chubb Australia in a manner that was improper.

The court found that the respondent did breach the implied term of fidelity and good faith in its contract with Chubb Australia by advising Chubb Australia to demote and dismiss Mr Ware without proper justification. The court held that the respondent’s conduct was improper and constituted a tortious interference with Mr Ware’s employment contract. The court awarded Mr Ware general damages of $10,000 and special damages calculated by reference to the termination benefits he would have received if he had not been demoted and dismissed, plus 20 per cent of the unreimbursed cost of his consultations with Dr Mastoianni. The court also ordered the respondent to pay interest on the damages awarded at the rate of 10.5 per cent from the date of dismissal.

Orders

Orders of the court

1.

The respondent shall pay general damages to the applicant in the sum of $10,000.

2.

The respondent shall pay special damages to the applicant calculated by reference to the termination benefits that Mr Ware would have received, if he had been given notice of termination on 20 October 2003, pursuant to clause 11 of his employment contract, had he not been demoted on 13 September 2003 and dismissed on 26 September 2003, plus 20 per cent of the unreimbursed cost of Mr Ware’s consultations with Dr Mastoianni from 13 September 2003 to date.

3.

The respondent shall pay interest up to judgment on the damages awarded pursuant to orders 1 and 2 at the rate of 10.5 per cent from 26 September 2003.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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