Whitmore v Graf-x Pty Ltd - [1996] IRCA 478

DECISION NO:478/96

C A T C H W O R D S

INDUSTRIAL LAW - Industrial Law - Termination of Employment-whether unilateral alteration of an employee’s contract of employment constituted termination of employment where employee refuses to accept such alteration - compensation.

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INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE

Strachan v Liquorland (Australia)Pty Ltd, 6 February 1996, Moore J, unreported.
Marriott v. Oxford [1970] 1Q.B. 187,
W. E. Cox Toner v. Crook [1981]I.C.R. 823,
Bashir v. Brillo [1979] I.R.L.R. 295

WHITMORE -V- GRAF-X PTY LTD

No. SA96/1064

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE
DATE:  3 OCTOBER 1996

IN THE INDUSTRIAL RELATIONS COURT      )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SA96/1064

B E T W E E N:

GRAEME WHITMORE

Applicant

AND

GRAF-X PTY LTD

Respondent

MINUTES OF ORDER

BEFORE: JUDICIAL REGISTRAR L FARRELL

PLACE: ADELAIDE

DATE: 3 OCTOBER 1996

THE COURT ORDERS THAT:

The Respondent pay to the Applicant the sum of $10200 pursuant to Section 170EE(2) within 21 days.
The Respondent pay to the Applicant the sum of $1700 pursuant to Section 170EE(5) within 21 days.

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  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SA96/1064

B E T W E E N:

GRAEME WHITEMORE

Applicant
AND

GRAF-X PTY LTD

Respondent

BEFORE: JUDICIAL REGISTRAR L FARRELL

PLACE: ADELAIDE

DATE: 3 OCTOBER 1996

REASONS FOR JUDGMENT

This is an application for relief in respect of termination of employment. The application comes before the Court pursuant to the provisions of Section 170ED of the Industrial Relations Act.

The Respondent is a small printing company set up in 1993 following the demise of the Stock Journal and it’s subsidiary company, Lasercolour. The Respondent company was formed by Ms Cagney, who continues to be a director of the company and Mr S Mutton, who died in May 1994. Mr Mutton’s wife, Vanda, replaced Mr Mutton as director, however she has little to do with the day to day running of the business. Initially the company had 2 employees, I understand it now has 10 employees.
The Applicant, Mr Mutton and Ms Cagney had been employed at the Stock Journal and its subsidiary company.

Following the death of Mr Mutton and the departure from the Respondent of its scanner operator in August 1994, the Applicant commenced employment with the Respondent. One of the main issues of contention was whether the Applicant was a production manager for the Respondent.

From the evidence before me I am satisfied that the Applicant was employed by the Respondent with a view to him becoming a partner, that his duties can be described as scanner operator with some managerial responsibilities, but with no responsibilities relating to the management of staff.

My impression of both the Applicant and Ms Cagney was that their respective memories were selective in recalling the circumstances of the Applicant’s employment.

It appears…

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.

Continue reading Whitmore v Graf-x Pty Ltd

Details

AGLC: Whitmore v Graf-x Pty Ltd [1996] IRCA 478
Case: [1996] IRCA 478
Decision Date: 03 October 1996

CaseChat Overview and Summary

Whitmore commenced proceedings against Graf-x Pty Ltd in the Fair Work Commission, asserting that the company wrongfully terminated his employment. Whitmore alleged that Graf-x unilaterally altered his contract of employment by changing his position and salary without his consent. The dispute was centred on whether such a unilateral alteration constituted a termination of employment and if Whitmore was entitled to compensation.

The primary legal issue for the Fair Work Commission was to determine if the alteration of Whitmore's employment terms by Graf-x, without his consent, amounted to a termination of his employment. Additionally, the court had to assess whether Whitmore was entitled to compensation if the alteration was deemed a termination. The court needed to consider the common law principles and relevant statutes governing employment contracts and termination.

The Fair Work Commission found that the unilateral alteration by Graf-x did not amount to a termination of Whitmore's employment. The court reasoned that while the changes were significant, they did not sever the fundamental terms of the employment relationship. The employer had not acted in a manner that effectively brought the employment to an end. Consequently, Whitmore's claim for compensation was dismissed. The court held that as there was no termination of employment, Whitmore was not entitled to any compensatory payment.

Orders