Hilton Hotels of Australia Limited v Pasovska [2003] NSWIRComm 17

Hilton Hotels of Australia Limited v Pasovska [2003] NSWIRComm 17

In award-regulated, indefinite employment relationships, the doctrine of frustration does not operate to terminate employment due to total incapacity. Rather, termination occurs upon a positive act of communication of dismissal or acceptance of resignation. Here, employment concluded on 3 February 2000 with the employer’s letter and payment, making that the relevant date for calculating leave entitlements.

Jurisdiction
Australia
Judgment Date
07 March 2003
Procedural Posture
Appeal and Cross Appeal / Judgment on Appeals From Chief Industrial Magistrate
Outcome
Appeal dismissed, cross-appeal upheld
Legal Topics
['contract of Employment' 'frustration of Contract' 'long Service Leave' 'annual Leave' 'termination of Employment']
['employment Law' 'industrial Law'] ['contract of Employment' 'frustration of Contract' 'long Service Leave' 'annual Leave' 'termination of Employment']

Case Brief

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Procedural Posture

Appeal and Cross Appeal / Judgment on Appeals From Chief Industrial Magistrate

Legal Issues

  1. 1 ["Whether the contract of employment was frustrated by the employee's incapacity" 'Whether the correct date of termination was 19 November 1993, 18 May 1995, or 3 February 2000' 'Whether the respondent was entitled to long service leave and annual leave entitlements upon cessation of employment']

Ratio Decidendi

In award-regulated, indefinite employment relationships, the doctrine of frustration does not operate to terminate employment due to total incapacity. Rather, termination occurs upon a positive act of communication of dismissal or acceptance of resignation. Here, employment concluded on 3 February 2000 with the employer’s letter and payment, making that the relevant date for calculating leave entitlements.

Court Disposition

Appeal dismissed, cross-appeal upheld

Orders

  • ['Leave to appeal granted as to the appeal and the cross appeal.' 'The appeal is dismissed.' 'The cross appeal is upheld.' 'Respondent/cross-appellant to bring in short minutes of order within 14 days.' 'Appellant/cross-respondent to pay the costs of the respondent/cross-appellant as agreed or assessed.']