Irving & Ors. v. Kleinman [2005] NSWCA 116

Irving & Ors. v. Kleinman [2005] NSWCA 116

The appeal was allowed because the pleaded implied contractual terms in paragraph 16(i)-(xi) were unsupported and not properly implied, paragraph 16(xii) omitted the vital qualification "without reasonable and proper cause", and paragraph 17 did not adequately identify conduct attributable to the employer. The negligence pleading in paragraphs 19 and 20 also failed to allege facts giving rise to a duty of care or to state the content of that duty. State of New South Wales v. Paige was authority against treating the employer's safe system of work duty as extending to disciplinary investigation and decision-making, although the opponent was given liberty to re-plead properly framed contract...

Jurisdiction
Australia
Judgment Date
18 April 2005
Procedural Posture
Employment Law Appeal Concerning Strike Out of Contract and Negligence Pleadings / Application for Leave to Appeal and Appeal in the NSW Court of Appeal From a District Court Interlocutory Decision Refusing to Strike Out Parts of an Amended Statement of Claim
Outcome
Leave to appeal granted and appeal allowed.
Legal Topics
['contract of Employment' 'implied Terms' 'relationship of Trust and Confidence' 'disciplinary Proceedings' 'employer Duty of Care' 'negligence' 'strike Out of Pleadings' 'leave to Appeal']
['employment Law' 'contract Law' 'tort Law' 'civil Procedure'] ['contract of Employment' 'implied Terms' 'relationship of Trust and Confidence' 'disciplinary Proceedings' 'employer Duty of Care' 'negligence' 'strike Out of Pleadings' 'leave to Appeal']

Case Brief

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Procedural Posture

Employment Law Appeal Concerning Strike Out of Contract and Negligence Pleadings / Application for Leave to Appeal and Appeal in the NSW Court of Appeal From a District Court Interlocutory Decision Refusing to Strike Out Parts of an Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the Amended Statement of Claim validly pleaded implied terms of the employment contract concerning investigation, charging and prosecution of disciplinary proceedings.' 'Whether an implied term that the employer would not destroy or seriously damage the relationship of trust and confidence was sustainable as pleaded.' 'Whether the negligence pleading alleged facts giving rise to a duty of care and formulated the content of that duty.' 'Whether State of New South Wales v. Paige precluded the asserted duty of care in relation to disciplinary investigation and decision-making.' 'Whether the impugned paragraphs should be struck out with liberty to re-plead.']

Ratio Decidendi

The appeal was allowed because the pleaded implied contractual terms in paragraph 16(i)-(xi) were unsupported and not properly implied, paragraph 16(xii) omitted the vital qualification "without reasonable and proper cause", and paragraph 17 did not adequately identify conduct attributable to the employer. The negligence pleading in paragraphs 19 and 20 also failed to allege facts giving rise to a duty of care or to state the content of that duty. State of New South Wales v. Paige was authority against treating the employer's safe system of work duty as extending to disciplinary investigation and decision-making, although the opponent was given liberty to re-plead properly framed contract...

Court Disposition

Leave to appeal granted and appeal allowed.

Orders

  • ['Leave to appeal granted, Notice of Appeal to be filed within 7 days.' 'Appeal allowed.' 'Paragraphs 16, 17, 19 and 20 of the Amended Statement of Claim struck out, the opponent to have liberty to re-plead the contract and tort claims generally in accordance with these reasons.' "Opponent to pay claimants' costs of...