Austin v NF Importers Pty Ltd & Anor [2005] NSWIRComm 136

Austin v NF Importers Pty Ltd & Anor [2005] NSWIRComm 136

The applicant, as IT Manager, knew that unlicensed software was being used, failed to report that serious matter to his employer, and the Court found that he did not raise it with Mr Lee or Mr Fraser and that the purported email dated 15 October 2001 was fabricated and sent on 19 February 2002. His failure was a serious breach of his duties, responsibilities and duty of fidelity to his employer, and justified summary dismissal. The contract providing for four weeks' notice was not unfair on its face, and its performance or termination did not render it unfair under s 106 because the applicant had opportunities to respond and no acceptable innocent explanation was available.

Jurisdiction
Australia
Judgment Date
27 April 2005
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 Alleging an Unfair Contract of Employment / Judgment After Hearing
Outcome
Summons dismissed; costs reserved; liberty to apply granted with respect to costs.
Legal Topics
['termination of Employment' 'summary Dismissal for Misconduct' 'use of Unlicensed Software' 'duty of Fidelity' 'procedural Fairness' 'notice and Severance']
['employment Law' 'industrial Relations' 'unfair Contracts'] ['termination of Employment' 'summary Dismissal for Misconduct' 'use of Unlicensed Software' 'duty of Fidelity' 'procedural Fairness' 'notice and Severance']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 Alleging an Unfair Contract of Employment / Judgment After Hearing

Legal Issues

  1. 1 ['Whether NF Importers was justified in holding the applicant responsible for unauthorised use of pirated software in its offices.' 'Whether the contract of employment became an unfair contract by reason of the respondents holding the applicant guilty of misconduct and terminating the contract as a result.' 'Whether the contract operated to deny the applicant the opportunity to defend himself against allegations of misconduct.' 'Whether the contract operated to enable termination without a period of notice or severance payment that was reasonable and appropriate in the circumstances.' 'Whether the contract operated to enable termination without a valid reason.' 'Whether the contract operated to deny the applicant knowledge of the real reason for his termination.' 'Whether the applicant sent an email to Mr Lee on or about 15 October 2001 concerning illegal copying of software.' "Whether the applicant raised with Mr Fraser or Mr Lee that there were illegal copies of software on the respondents' computer system." "Whether s109A of the Industrial Relations Act 1996 precluded the applicant's claim for relief under s 106."]

Ratio Decidendi

The applicant, as IT Manager, knew that unlicensed software was being used, failed to report that serious matter to his employer, and the Court found that he did not raise it with Mr Lee or Mr Fraser and that the purported email dated 15 October 2001 was fabricated and sent on 19 February 2002. His failure was a serious breach of his duties, responsibilities and duty of fidelity to his employer, and justified summary dismissal. The contract providing for four weeks' notice was not unfair on its face, and its performance or termination did not render it unfair under s 106 because the applicant had opportunities to respond and no acceptable innocent explanation was available.

Court Disposition

Summons dismissed; costs reserved; liberty to apply granted with respect to costs.

Orders

  • ['The summons is dismissed.' 'Costs are reserved.' 'Liberty to apply granted with respect to costs.']