Ernest William Lloyd v Thermotest Australia Pty Ltd & Ors [2001] NSWIRComm 300

Ernest William Lloyd v Thermotest Australia Pty Ltd & Ors [2001] NSWIRComm 300

The employment contract and arrangement were unfair both at inception and as operated: three months' notice was inadequate for a senior manager; repeated underpayments and arbitrary withholding of salary rendered the arrangement unfair; applicant was entitled to compensation for underpayments, salary in lieu of reasonable notice (nine months), and the value of a five percent shareholding promised but not delivered. Jurisdiction was established due to a real and sufficient connection with New South Wales.

Jurisdiction
Australia
Judgment Date
26 November 2001
Procedural Posture
Unfair Contract Application / Final Judgment
Outcome
Application allowed in substantial part against the second and third respondents; discontinued against the first respondent.
Legal Topics
['unfair Contract' 'employment Contract' 'jurisdiction' 'foreign Judgment Enforcement' 'salary Underpayment']
['industrial Law' 'employment Law'] ['unfair Contract' 'employment Contract' 'jurisdiction' 'foreign Judgment Enforcement' 'salary Underpayment']

Case Brief

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Procedural Posture

Unfair Contract Application / Final Judgment

Legal Issues

  1. 1 ["Whether the applicant's employment contract or arrangement was unfair, harsh or unconscionable under s 106 of the Industrial Relations Act 1996" 'Whether the Commission had jurisdiction given the overseas incorporation of respondents and work performed in New South Wales' 'Whether judgment could be enforced as a foreign judgment in Hong Kong' 'Entitlement to unpaid salary, compensation in lieu of notice, and value of shares promised but not delivered']

Ratio Decidendi

The employment contract and arrangement were unfair both at inception and as operated: three months' notice was inadequate for a senior manager; repeated underpayments and arbitrary withholding of salary rendered the arrangement unfair; applicant was entitled to compensation for underpayments, salary in lieu of reasonable notice (nine months), and the value of a five percent shareholding promised but not delivered. Jurisdiction was established due to a real and sufficient connection with New South Wales.

Court Disposition

Application allowed in substantial part against the second and third respondents; discontinued against the first respondent.

Orders

  • ['Leave to discontinue proceedings against the first respondent without filing a formal notice of discontinuance.' "Orders for payment of compensation to the applicant for underpaid salary ($188,263), nine months' salary in lieu of notice, and $50,000 representing the value of five percent shareholding to be brought...