Wong v State Street Global Advisors Australia Limited & Anor [2004] NSWIRComm 212

Wong v State Street Global Advisors Australia Limited & Anor [2004] NSWIRComm 212

The applicant's removal resulted from the respondents' restructure, eliminating his role and offering a substantively different, insecure, and inadequately defined position. The employment contract did not permit unilateral transfer. This conduct constituted repudiation and redundancy, entitling the applicant to proper notice, redundancy pay, pro rata bonus, and value of shares/options vesting during the notice period. The respondents' failure to honour these obligations rendered both the contract and their conduct unfair under s106, and money orders for those sums (subject to mitigation) were warranted. Taped evidence was admissible, as it was reasonably necessary to protect the...

Jurisdiction
Australia
Judgment Date
28 July 2004
Procedural Posture
Application Under S106 of the Industrial Relations Act 1996 / Judgment
Outcome
Orders in favour of applicant for contractual variation, payment in lieu of seven months' notice (less new employment earnings), pro rata bonus to termination, value of shares/options vesting in notice, outstanding annual and long service leave, 20 weeks' redundancy pay, and interest; respondents to pay costs.
Legal Topics
['unfair Contract' 'constructive Dismissal' 'repudiation' 'redundancy' 'employment Benefits' 'notice Period' 'bonus Entitlements' 'share and Option Vesting' 'annual and Long Service Leave' 'mitigation of Loss' 'evidence Admissibility']
['employment Law' 'industrial Relations'] ['unfair Contract' 'constructive Dismissal' 'repudiation' 'redundancy' 'employment Benefits' 'notice Period' 'bonus Entitlements' 'share and Option Vesting' 'annual and Long Service Leave' 'mitigation of Loss' 'evidence Admissibility']

Case Brief

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Procedural Posture

Application Under S106 of the Industrial Relations Act 1996 / Judgment

Legal Issues

  1. 1 ["What were the terms of the applicant's contract of employment and/or any other arrangement pursuant to which he performed work?" "Who terminated the applicant's employment: resignation, repudiation, constructive dismissal or redundancy?" 'Did the contract operate unfairly regarding notice, bonus, share/options, annual/long service leave?' 'What is the proper calculation of damages and mitigation for employment benefits?' 'Was taped evidence admissible under the Listening Devices Act 1984?']

Ratio Decidendi

The applicant's removal resulted from the respondents' restructure, eliminating his role and offering a substantively different, insecure, and inadequately defined position. The employment contract did not permit unilateral transfer. This conduct constituted repudiation and redundancy, entitling the applicant to proper notice, redundancy pay, pro rata bonus, and value of shares/options vesting during the notice period. The respondents' failure to honour these obligations rendered both the contract and their conduct unfair under s106, and money orders for those sums (subject to mitigation) were warranted. Taped evidence was admissible, as it was reasonably necessary to protect the...

Court Disposition

Orders in favour of applicant for contractual variation, payment in lieu of seven months' notice (less new employment earnings), pro rata bonus to termination, value of shares/options vesting in notice, outstanding annual and long service leave, 20 weeks' redundancy pay, and interest; respondents to pay costs.

Orders

  • ["1. The contract and arrangement is varied ab initio to require seven months' notice of termination or payment in lieu, a redundancy payment, pro rata bonus to date of termination, and vesting of shares/options during the notice period." "2. The respondents are to pay the applicant: (a) seven months' pay in lieu of...