De Haas v Chloer Pty Ltd, in liq. (formerly Business Catalyst International Pty Ltd) and Another [2008] NSWIRComm 227

De Haas v Chloer Pty Ltd, in liq. (formerly Business Catalyst International Pty Ltd) and Another [2008] NSWIRComm 227

The contract of employment became unfair because it permitted the respondents to terminate the applicant's employment without procedural fairness and on grounds not made out: the alleged breach of confidentiality was not established and poor performance did not justify summary termination. The Scheme was a collateral arrangement because only employees could participate, it was promoted as a reward, retention and motivation mechanism, and performance of work was a significant purpose of the overall arrangements. The Scheme was unfair in its terms and operation because it gave inadequate protection to a unit holder whose employment was terminated, leaving redemption dependent on the...

Jurisdiction
Australia
Judgment Date
28 November 2008
Procedural Posture
Application Under Section 106 of the Industrial Relations Act 1996 / Judgment
Outcome
Application allowed in part; declarations of unfairness and monetary orders to be made against the second respondent.
Legal Topics
['industrial Relations Act 1996 S 106' 'contract of Employment' 'related Condition or Collateral Arrangement' 'employee Participation Trust Scheme' 'reasonable Notice on Termination' 'procedural Fairness' 'salary Reduction' 'monetary Orders Against Non Party']
['industrial Law' 'employment Law' 'unfair Contracts'] ['industrial Relations Act 1996 S 106' 'contract of Employment' 'related Condition or Collateral Arrangement' 'employee Participation Trust Scheme' 'reasonable Notice on Termination' 'procedural Fairness' 'salary Reduction' 'monetary Orders Against Non Party']

Case Brief

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Procedural Posture

Application Under Section 106 of the Industrial Relations Act 1996 / Judgment

Legal Issues

  1. 1 ["Whether the BCI Employee Participation Trust Scheme was a related condition or collateral arrangement to the applicant's contract of employment." "Whether the applicant's contract of employment was unfair or became unfair because it permitted termination without procedural fairness and without sufficient cause." 'Whether the four weeks notice provision was unfair or became unfair at termination.' 'Whether the BCI Employee Participation Trust Scheme was unfair in its terms or became unfair at termination.' 'Whether alleged representations by the second respondent induced the applicant to enter the Scheme and made the Scheme unfair.' 'Whether the 30 per cent salary reduction from 9 December 2002 to 28 February 2003 made the contract of employment unfair.' 'Whether the second respondent was liable to pay monetary orders.']

Ratio Decidendi

The contract of employment became unfair because it permitted the respondents to terminate the applicant's employment without procedural fairness and on grounds not made out: the alleged breach of confidentiality was not established and poor performance did not justify summary termination. The Scheme was a collateral arrangement because only employees could participate, it was promoted as a reward, retention and motivation mechanism, and performance of work was a significant purpose of the overall arrangements. The Scheme was unfair in its terms and operation because it gave inadequate protection to a unit holder whose employment was terminated, leaving redemption dependent on the...

Court Disposition

Application allowed in part; declarations of unfairness and monetary orders to be made against the second respondent.

Orders

  • ["The second respondent is to pay the applicant an amount equivalent to three months gross salary calculated on the applicant's gross salary payable as at the date of termination of the contract of employment." 'The second respondent is to pay the applicant $25,739.00 in relation to the Scheme.' 'The second...