Willis Australia Group Services Pty Ltd v Mitchell-Innes

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381

Hearing dates:

8 and 9 October 2015

Decision date:

02 December 2015

Before:

Macfarlan JA at [1];
Ward JA at [130];
Leeming JA at [137]

Decision:

(1) Appeal in relation to the assessment of damages allowed.

(2) Appeal on liability dismissed.

(3) Set aside Orders 1, 2 and 3 made at first instance on 8 December 2014.

(4) Direct that the parties file and serve written submissions concerning the quantification of damages and costs orders as follows:

(a) The appellant within 14 days of this judgment.
(b) The respondent within a further 14 days.
(c) Any response by the appellant within a further 7 days.

Catchwords:

EMPLOYMENT LAW – termination of employment – summary dismissal – whether employee exhibited signs of intoxication at work training course – whether employee intoxicated in a public place – whether employee intoxicated at a work-related social function – whether intoxication warranted summary dismissal for serious misconduct in serious circumstances

  DAMAGES – termination of employment – whether, if summary dismissal not available, employee would have been terminated on notice

Legislation Cited:

Long Service Leave Act 1955 (NSW), s 4

Cases Cited:

Blyth Chemicals Ltd v Bushnell [1933] HCA 8; 49 CLR 66
Clouston & Co Ltd v Corry [1906] AC 122
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64
Concut Pty Ltd v Worrell [2000] HCA 64 75 ALJR 312
McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) FCA 1903; 168 IR 375
Murray Irrigation Ltd v Balsdon [2006] NSWCA 253 67 NSWLR 73
New South Wales Cancer Council v Sarfaty (1992) 28 NSWLR 68
Rankin v Marine Power International Pty Ltd (2001) VSC 150; 107 IR 117
State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 526
Tasmania Development & Resources v Martin [2000] FCA 414; 97 IR 66
TCN Channel Nine Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130
Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101; 233 ALR 687

Category:

Principal judgment

Parties:

Willis Australia Group Services Pty Ltd (Appellant)
Donald Mitchell-Innes (Respondent)

Representation:

Counsel:
J Kirk SC/M Seck (Appellant)
J Pearce (Respondent)

  Solicitors:
Allens (Appellant)
Paul Murphy & Associates (Respondent)

File Number(s):

CA 2014/376443

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2014] NSWDC 250

Date of Decision:

8 December 2014

Before:

P Taylor SC DCJ

File Number(s):

DC 2013/148638

HEADNOTE

[This headnote is not to be read as part of the judgment]

By letter dated 14 November 2012 the appellant (“Willis”) purported to terminate summarily the respondent’s employment as Willis’ New South Wales General Manager. The purported termination arose out of the respondent’s alleged serious misconduct prior to and during a training course held by Willis in Melbourne for the purposes of training and assessing the sales staff of its insurance…