Weisser and Spur Group Pty Limited [2002] NSWIRComm 116

Weisser and Spur Group Pty Limited [2002] NSWIRComm 116

The Commission held that it was unnecessary to decide whether the unfair dismissal application was vexatious because Gabriel Weisser unreasonably refused to settle the claim. The 23 August 2001 offer of $25,000 plus a Toyota Hi Ace van valued at $7,500 totalled $32,500, which exceeded the maximum six months' compensation of $29,400 that could have been awarded on his $58,800 salary. In context, including the absence of entitlement to pro rata long service leave or redundancy pay, the early timing of the offer, the retention of the vehicle, alternative employment, and notice that costs would be sought, the offer was more than reasonable and refusal was unreasonable.

Jurisdiction
Australia
Judgment Date
30 May 2002
Procedural Posture
Notice of Motion for Costs in Unfair Dismissal Proceedings Under S 84 of the Industrial Relations Act 1996 / Decision on Notice of Motion as to Costs After the Unfair Dismissal Application Was Dismissed as Out of Time
Outcome
Notice of motion granted; costs ordered against Gabriel Weisser in favour of Spur Group Pty Limited.
Legal Topics
['unfair Dismissal' 'costs in Unfair Dismissal Proceedings' 'unreasonable Refusal to Settle' 'vexatious Proceedings' 'out of Time Application']
['industrial Relations' 'employment Law' 'costs'] ['unfair Dismissal' 'costs in Unfair Dismissal Proceedings' 'unreasonable Refusal to Settle' 'vexatious Proceedings' 'out of Time Application']

Case Brief

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Procedural Posture

Notice of Motion for Costs in Unfair Dismissal Proceedings Under S 84 of the Industrial Relations Act 1996 / Decision on Notice of Motion as to Costs After the Unfair Dismissal Application Was Dismissed as Out of Time

Legal Issues

  1. 1 ['Whether the Commission should award costs under s 181(2)(c) and s 181(1) of the Industrial Relations Act 1996.' 'Whether Gabriel Weisser unreasonably failed to agree to a settlement of the unfair dismissal claim.' 'Whether it was necessary to decide whether the unfair dismissal application was vexatious.' 'Whether the rejected settlement offer was reasonable in light of the maximum compensation available and the circumstances of the claim.']

Ratio Decidendi

The Commission held that it was unnecessary to decide whether the unfair dismissal application was vexatious because Gabriel Weisser unreasonably refused to settle the claim. The 23 August 2001 offer of $25,000 plus a Toyota Hi Ace van valued at $7,500 totalled $32,500, which exceeded the maximum six months' compensation of $29,400 that could have been awarded on his $58,800 salary. In context, including the absence of entitlement to pro rata long service leave or redundancy pay, the early timing of the offer, the retention of the vehicle, alternative employment, and notice that costs would be sought, the offer was more than reasonable and refusal was unreasonable.

Court Disposition

Notice of motion granted; costs ordered against Gabriel Weisser in favour of Spur Group Pty Limited.

Orders

  • ["The applicant, Mr Gabriel Weisser (the respondent to the notice of motion) in Matter IRC 5380 of 2001 is to pay the respondent's costs of, and incidental to the proceedings after 23 August 2001 and this notice of motion." 'Such costs are to be as agreed or assessed and payable with twenty-eight (28) days.']