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 noticeLegislation 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 687Category: Principal judgment Parties: Willis Australia Group Services Pty Ltd (Appellant)
Donald Mitchell-Innes (Respondent)Representation: Counsel:
Solicitors:
J Kirk SC/M Seck (Appellant)
J Pearce (Respondent)
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…
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- Case
- [2015] NSWCA 381
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether Mr Mitchell-Innes's alleged intoxication at the work training course and the subsequent social function constituted serious misconduct in serious circumstances, thereby justifying his summary dismissal. A further issue was whether, if summary dismissal was not justified, the employer would have otherwise terminated Mr Mitchell-Innes's employment on notice.
The Court of Appeal upheld the primary judge's finding that the conduct did not amount to serious misconduct justifying summary dismissal. However, the Court of Appeal allowed the appeal in relation to the assessment of damages. The Court reasoned that while the summary dismissal was not justified, the employer would have been entitled to terminate the employment on notice. Consequently, the damages recoverable by the employee were limited to the notice period, rather than the full period of employment. The Court set aside the orders made at first instance concerning the quantification of damages and directed the parties to file written submissions on this issue.
Orders
Orders of the court
(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.
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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