David John Roberts v Larload Pty Limited [2005] NSWIRComm 1049

David John Roberts v Larload Pty Limited [2005] NSWIRComm 1049

The unfair dismissal application did not vest in the Trustee and the Applicant was competent to maintain it. Although the Applicant had selected monetary compensation, the Industrial Relations Act 1996 required the Commission to treat an unfair dismissal application first and foremost as one for reinstatement, then re-employment, and only lastly compensation. A reinstatement application is personal to the dismissed employee and is not property divisible among creditors. In any event, compensation for unfair dismissal is not a provable debt or property because it is assessed by reference to the unfairness of the employer's conduct and is discretionary rather than mathematically...

Jurisdiction
Australia
Judgment Date
05 April 2005
Procedural Posture
Application by David John Roberts Re Unfair Dismissal Pursuant to Section 84 of the Industrial Relations Act 1996 / Preliminary Decision on the Respondent's Notice of Motion to Discontinue the Unfair Dismissal Application and Close the File
Outcome
Respondent's Notice of Motion rejected; relief to discontinue the unfair dismissal application and close the file declined.
Legal Topics
['unfair Dismissal' "undischarged Bankrupt's Competence to Maintain Proceedings" "vesting of Bankrupt's Property in Trustee" 'after Acquired Property' 'personal Injury or Wrong Exemption' 'reinstatement, Re Employment and Compensation Remedies']
['industrial Relations' 'bankruptcy'] ['unfair Dismissal' "undischarged Bankrupt's Competence to Maintain Proceedings" "vesting of Bankrupt's Property in Trustee" 'after Acquired Property' 'personal Injury or Wrong Exemption' 'reinstatement, Re Employment and Compensation Remedies']

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Procedural Posture

Application by David John Roberts Re Unfair Dismissal Pursuant to Section 84 of the Industrial Relations Act 1996 / Preliminary Decision on the Respondent's Notice of Motion to Discontinue the Unfair Dismissal Application and Close the File

Legal Issues

  1. 1 ["Whether the Applicant's section 84 unfair dismissal application vested in the Trustee in Bankruptcy under the Bankruptcy Act 1966 (C'th)." 'Whether the Applicant, as an undischarged bankrupt, was competent to bring and maintain the unfair dismissal application in his own right.' 'Whether an unfair dismissal application seeking compensation should be characterised as property divisible among creditors or as a personal action.' 'Whether compensation under Part 6, Chapter 2 of the Industrial Relations Act 1996 (NSW) is property for bankruptcy purposes.']

Ratio Decidendi

The unfair dismissal application did not vest in the Trustee and the Applicant was competent to maintain it. Although the Applicant had selected monetary compensation, the Industrial Relations Act 1996 required the Commission to treat an unfair dismissal application first and foremost as one for reinstatement, then re-employment, and only lastly compensation. A reinstatement application is personal to the dismissed employee and is not property divisible among creditors. In any event, compensation for unfair dismissal is not a provable debt or property because it is assessed by reference to the unfairness of the employer's conduct and is discretionary rather than mathematically...

Court Disposition

Respondent's Notice of Motion rejected; relief to discontinue the unfair dismissal application and close the file declined.

Orders

  • ['The Commission declines to grant the relief sought by the Respondent.']