Cohen v iSOFT Group Pty Limited [2013] FCAFC 49

Cohen v iSOFT Group Pty Limited [2013] FCAFC 49

The Full Court held that the primary judge erred by construing the 2000, 2006 and 2008 agreements as self-contained discrete contracts. Objectively construed in context, the 2008 agreement was a supplement to the existing employment contract between Dr Cohen and the first respondent, not a new contract making IBA Asia his employer. Dr Cohen therefore remained employed by the first respondent. Clause 10.1(a) required six months notice, and the three months notice given was ineffective and amounted to repudiation accepted by Dr Cohen. He was entitled to six months pay in lieu of notice, annual leave and long service leave, but not a redundancy payment by implied custom and not Fair Work Act...

Jurisdiction
Australia
Judgment Date
16 May 2013
Procedural Posture
Appeal From Cohen V I SOFT Group Pty Limited [2012] FCA 1071 / Full Court Appeal
Outcome
Appeal allowed.
Legal Topics
['construction of Employment Contracts' 'identification of Employer' 'variation or Replacement of Employment Contract' 'secondment' 'notice of Termination' 'annual Leave' 'long Service Leave' 'redundancy' 'fair Work Act Coverage']
['contract Law' 'employment Law'] ['construction of Employment Contracts' 'identification of Employer' 'variation or Replacement of Employment Contract' 'secondment' 'notice of Termination' 'annual Leave' 'long Service Leave' 'redundancy' 'fair Work Act Coverage']

Case Brief

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Procedural Posture

Appeal From Cohen V I SOFT Group Pty Limited [2012] FCA 1071 / Full Court Appeal

Legal Issues

  1. 1 ['Whether in 2011 Dr Cohen was still employed by the first respondent or by another member of the corporate group.' 'Whether the 2008 agreement varied or supplemented the existing employment contract or replaced it with a new contract with the second respondent.' "What notice period applied on termination of Dr Cohen's employment." 'Whether Dr Cohen was entitled to annual leave, long service leave, redundancy payments, and Fair Work Act entitlements.']

Ratio Decidendi

The Full Court held that the primary judge erred by construing the 2000, 2006 and 2008 agreements as self-contained discrete contracts. Objectively construed in context, the 2008 agreement was a supplement to the existing employment contract between Dr Cohen and the first respondent, not a new contract making IBA Asia his employer. Dr Cohen therefore remained employed by the first respondent. Clause 10.1(a) required six months notice, and the three months notice given was ineffective and amounted to repudiation accepted by Dr Cohen. He was entitled to six months pay in lieu of notice, annual leave and long service leave, but not a redundancy payment by implied custom and not Fair Work Act...

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'Order 2 made by the primary judge on 19 October 2012 be set aside.' "Within 28 days of the date of this order, the first respondent pay the appellant the amount of AUD516,830.35, consisting of payment in lieu of six months notice on the redundancy of the appellant's position...