Small v Tyco Projects (Australia) Pty Ltd [2006] NSWIRComm 18

Small v Tyco Projects (Australia) Pty Ltd [2006] NSWIRComm 18

The deed of release was binding because the applicant acknowledged the overpayment, obtained legal advice, had a practical alternative to signing, and her signature was not obtained by duress or unconscionable conduct; the evidence did not establish misleading conduct about fringe benefits tax, and the Local Court judgment was a further reason not to vary or declare the deed void. In any event, the employment contract was not unfair: the one month notice clause was not inherently unfair, the applicant received one month's notice, three months severance and one month's car allowance, and the applicant did not establish unfairness in the respondent's procedures or in the manner of termination.

Jurisdiction
Australia
Judgment Date
07 February 2006
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 Alleging Unfair Contract / Judgment After Hearing; Summons Dismissed
Outcome
Application dismissed; costs ordered for the respondent.
Legal Topics
['unfair Contract' 'contract of Employment' 'deed of Release' 'redundancy' 'termination Notice and Severance Payments' 'economic Duress' 'costs']
['industrial Relations' 'employment Law' 'contract Law' 'costs'] ['unfair Contract' 'contract of Employment' 'deed of Release' 'redundancy' 'termination Notice and Severance Payments' 'economic Duress' 'costs']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 Alleging Unfair Contract / Judgment After Hearing; Summons Dismissed

Legal Issues

  1. 1 ['Whether the deed of release executed on 18 April 2002 was an unfair contract, related condition or collateral arrangement within the meaning of s 106 of the Industrial Relations Act 1996.' "Whether the applicant's contract of employment was unfair because it permitted allegedly inadequate termination pay, severance or redundancy pay in light of her circumstances." 'Whether the contract operated unfairly because it did not provide consultation, outplacement services or financial counselling before termination.' "Whether the respondent could rely on the deed of release and whether the applicant's signature was obtained by duress." 'Whether costs should be ordered in favour of the respondent.']

Ratio Decidendi

The deed of release was binding because the applicant acknowledged the overpayment, obtained legal advice, had a practical alternative to signing, and her signature was not obtained by duress or unconscionable conduct; the evidence did not establish misleading conduct about fringe benefits tax, and the Local Court judgment was a further reason not to vary or declare the deed void. In any event, the employment contract was not unfair: the one month notice clause was not inherently unfair, the applicant received one month's notice, three months severance and one month's car allowance, and the applicant did not establish unfairness in the respondent's procedures or in the manner of termination.

Court Disposition

Application dismissed; costs ordered for the respondent.

Orders

  • ['The summons is dismissed.' "The applicant shall pay the respondent's costs, as agreed or as assessed."]