Diane Rusk v Steve Gareski and Shane Sandoz [1996] IRCA 49

Diane Rusk v Steve Gareski and Shane Sandoz [1996] IRCA 49

The applicant's allegations of a conspiracy were not accepted. However, the applicant's statement that she did not want to work at the Rosebery site fell short of a refusal to work. Mr Gareski mistakenly treated it as a refusal, and the respondent then failed to provide the rostered shifts. That failure to provide work was a constructive dismissal and a termination at the initiative of the employer for which there was no valid reason. Reinstatement was impracticable because the respondent company no longer traded. Compensation was limited to the 38 rostered hours the applicant would have worked before her employment would in any event have ended on 30 April 1995 by genuine redundancy, and...

Jurisdiction
Australia
Judgment Date
30 January 1996
Procedural Posture
Application Under Section 170 EA of the Industrial Relations Act 1988 for Relief for Termination of Employment / Reasons for Judgment and Minutes of Order
Outcome
Unlawful termination found; reinstatement refused as impracticable; compensation awarded.
Legal Topics
['unlawful Termination' 'constructive Dismissal' 'valid Reason' 'summary Dismissal' 'reinstatement Impracticable' 'compensation' 'notice of Termination']
['industrial Law' 'employment Law'] ['unlawful Termination' 'constructive Dismissal' 'valid Reason' 'summary Dismissal' 'reinstatement Impracticable' 'compensation' 'notice of Termination']

Case Brief

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Procedural Posture

Application Under Section 170 EA of the Industrial Relations Act 1988 for Relief for Termination of Employment / Reasons for Judgment and Minutes of Order

Legal Issues

  1. 1 ['Whether there was a conspiracy to pressure the applicant into leaving her employment.' "Whether the employer's failure to provide rostered work amounted to a constructive dismissal and termination at the initiative of the employer." "Whether there was a valid reason for termination of the applicant's employment." 'Whether reinstatement was impracticable because the respondent company no longer traded.' 'What compensation should be ordered for the unlawful termination.']

Ratio Decidendi

The applicant's allegations of a conspiracy were not accepted. However, the applicant's statement that she did not want to work at the Rosebery site fell short of a refusal to work. Mr Gareski mistakenly treated it as a refusal, and the respondent then failed to provide the rostered shifts. That failure to provide work was a constructive dismissal and a termination at the initiative of the employer for which there was no valid reason. Reinstatement was impracticable because the respondent company no longer traded. Compensation was limited to the 38 rostered hours the applicant would have worked before her employment would in any event have ended on 30 April 1995 by genuine redundancy, and...

Court Disposition

Unlawful termination found; reinstatement refused as impracticable; compensation awarded.

Orders

  • ['The respondent pay the applicant compensation in the gross amount of $418.00 within 21 days of today.' 'Tax at the appropriate rate is to be deducted by the respondent before the payment is made to the applicant and the nett sum resulting after deduction of tax is to be paid to the applicant.']