APESMA & Carl Sparre and David Graphics [1995] IRCA 206

APESMA & Carl Sparre and David Graphics [1995] IRCA 206

The 23 March 1994 letter was deficient and did not constitute proper written notice of termination, and the written notation did not evidence resignation. The employment contract remained on foot until 8 April 1994, when Mr Moroney's words terminated the employment. Because the respondent relied on award obligations to require reasonable overtime but failed to give Mr Sparre a proper opportunity to discuss alternatives or refer the dispute to the Board of Reference, the termination was not valid and contravened Division 3 of Part VIA of the Industrial Relations Act 1988. Reinstatement was impracticable on the evidence, so compensation of $4000 was ordered.

Jurisdiction
Australia
Judgment Date
31 March 1995
Procedural Posture
Application Under Section 170 E of the Industrial Relations Act 1988 Alleging Termination in Contravention of Division 3 of Part VIA / Final Hearing After Certificate Under S 170 Ed(2) That Conciliation Was Unable to Settle the Matter; Reasons and Orders Made 31 March 1995
Outcome
Application allowed in part; termination declared to contravene Division 3 of Part VIA; reinstatement refused as impracticable; compensation awarded.
Legal Topics
['termination of Employment' 'unlawful Termination' 'constructive Dismissal' 'compensation' 'reinstatement' 'overtime' 'award Coverage' 'family Responsibilities' 'procedural Fairness' 'notice of Termination']
['industrial Law' 'employment Law'] ['termination of Employment' 'unlawful Termination' 'constructive Dismissal' 'compensation' 'reinstatement' 'overtime' 'award Coverage' 'family Responsibilities' 'procedural Fairness' 'notice of Termination']

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Procedural Posture

Application Under Section 170 E of the Industrial Relations Act 1988 Alleging Termination in Contravention of Division 3 of Part VIA / Final Hearing After Certificate Under S 170 Ed(2) That Conciliation Was Unable to Settle the Matter; Reasons and Orders Made 31 March 1995

Legal Issues

  1. 1 ['Whether the application was properly before the Court after the Commission certified that conciliation had failed' 'Whether the letter dated 23 March 1994 was a proper notice of termination or evidenced resignation' "Whether the respondent validly terminated Carl Sparre's employment for refusing overtime" 'Whether the respondent should have referred the overtime dispute to the Board of Reference under the applicable award' 'Whether reinstatement was practicable' 'What compensation should be awarded']

Ratio Decidendi

The 23 March 1994 letter was deficient and did not constitute proper written notice of termination, and the written notation did not evidence resignation. The employment contract remained on foot until 8 April 1994, when Mr Moroney's words terminated the employment. Because the respondent relied on award obligations to require reasonable overtime but failed to give Mr Sparre a proper opportunity to discuss alternatives or refer the dispute to the Board of Reference, the termination was not valid and contravened Division 3 of Part VIA of the Industrial Relations Act 1988. Reinstatement was impracticable on the evidence, so compensation of $4000 was ordered.

Court Disposition

Application allowed in part; termination declared to contravene Division 3 of Part VIA; reinstatement refused as impracticable; compensation awarded.

Orders

  • ["I declare that the termination of Carl Sparre's employment by the respondent contravenes Division 3 of part VIA of the Industrial Relations Act 1989." 'I find that reinstatement is impracticable.' 'I order the respondent to pay to the second applicant, Carl Raymond Sparre, the amount of $4000 within 14 days of...