Construction, Forestry, Mining and Energy Union (Drury) and BHP Refractories Pty Ltd [1994] IRCA 162

Construction, Forestry, Mining and Energy Union (Drury) and BHP Refractories Pty Ltd [1994] IRCA 162

The respondent's jurisdictional defences failed because Mr Drury's employment included a provision for termination on notice and had an uncertain duration, so it was not a contract for a specified period of time, and because he was employed as a bricklayers labourer rather than engaged under a contract for the specified task of constructing the furnace. Although Mr Drury's conduct toward Mr Seston would ordinarily justify dismissal, the termination contravened section 170DE because special circumstances existed and the respondent failed to afford procedural fairness, including failure to follow its disciplinary procedure and failure to have the dispute handled by an independent person.

Jurisdiction
Australia
Judgment Date
08 December 1994
Procedural Posture
Application Alleging Termination of Employment Contravened Division 3 of Part VIA of the Industrial Relations Act 1988 / Reasons for Judgment on Respondent's Notice of Motion Seeking Dismissal for Want of Jurisdiction and on Termination Issues; Remedy Reserved
Outcome
Determined in favour of the Applicant; respondent's jurisdictional defence failed and termination was found to contravene section 170DE of the Industrial Relations Act 1988; remedy reserved.
Legal Topics
['termination of Employment' 'jurisdiction' 'excluded Employees' 'contract of Employment for a Specified Period of Time' 'contract of Employment for a Specified Task' 'procedural Fairness' 'misconduct']
['industrial Relations' 'employment Law'] ['termination of Employment' 'jurisdiction' 'excluded Employees' 'contract of Employment for a Specified Period of Time' 'contract of Employment for a Specified Task' 'procedural Fairness' 'misconduct']

Case Brief

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Procedural Posture

Application Alleging Termination of Employment Contravened Division 3 of Part VIA of the Industrial Relations Act 1988 / Reasons for Judgment on Respondent's Notice of Motion Seeking Dismissal for Want of Jurisdiction and on Termination Issues; Remedy Reserved

Legal Issues

  1. 1 ['Whether the applicant was excluded from Subdivisions B, C, D and E of Division 3 of Part VIA of the Industrial Relations Act 1988 by regulation 30B(1)(a) as an employee engaged under a contract of employment for a specified period of time.' 'Whether the applicant was excluded by regulation 30B(1)(b) as an employee engaged under a contract of employment for a specified task.' "Whether the termination of Mr Drury's employment contravened section 170DE of the Industrial Relations Act 1988 because of procedural or substantive unfairness." "Whether the alleged misconduct arising from Mr Drury's pursuit of claimed Easter public holiday pay and leave entitlements justified termination."]

Ratio Decidendi

The respondent's jurisdictional defences failed because Mr Drury's employment included a provision for termination on notice and had an uncertain duration, so it was not a contract for a specified period of time, and because he was employed as a bricklayers labourer rather than engaged under a contract for the specified task of constructing the furnace. Although Mr Drury's conduct toward Mr Seston would ordinarily justify dismissal, the termination contravened section 170DE because special circumstances existed and the respondent failed to afford procedural fairness, including failure to follow its disciplinary procedure and failure to have the dispute handled by an independent person.

Court Disposition

Determined in favour of the Applicant; respondent's jurisdictional defence failed and termination was found to contravene section 170DE of the Industrial Relations Act 1988; remedy reserved.

Orders

  • ['The question of remedy will be dealt with on a date as arranged by the Applicant, convenient to both parties.']