Gary Sinclair v Anthony Smith & Associates Pty Ltd [1995] IRCA 663

Gary Sinclair v Anthony Smith & Associates Pty Ltd [1995] IRCA 663

The termination of the applicant's employment was held to be harsh, unjust, or unreasonable due to the respondent's failure to consult with employees and the union, absence of forewarning and counselling, and non-offer of alternative employment, breaching award provisions. The evidence did not show that reinstatement was impracticable; therefore, the applicant was entitled to reinstatement to another position on no less favourable terms and compensation for lost remuneration, less interim earnings.

Parties
Applicant: Gary Sinclair; Respondent: Anthony Smith & Associates Pty Ltd
Jurisdiction
Australia
Judgment Date
01 December 1995
Procedural Posture
Application for Review of Unlawful Termination Decision / Judgment After De Novo Hearing Before Single Judge
Outcome
Application for review allowed; orders for reinstatement and compensation granted.
Legal Topics
Unlawful Termination, Redundancy, Procedural Fairness, Reinstatement, Compensation
Industrial Law Unlawful Termination Redundancy Procedural Fairness Reinstatement Compensation

Case Brief

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Parties

Gary Sinclair

Applicant

Anthony Smith & Associates Pty Ltd

Respondent

Procedural Posture

Application for Review of Unlawful Termination Decision / Judgment After De Novo Hearing Before Single Judge

Legal Issues

  1. 1 Whether the dismissal of the applicant was harsh, unjust, or unreasonable under s.170DE(2) of the Industrial Relations Act 1988
  2. 2 Whether reinstatement is impracticable under s.170EE
  3. 3 Whether another position on equivalent terms could be fashioned for the applicant

Ratio Decidendi

The termination of the applicant's employment was held to be harsh, unjust, or unreasonable due to the respondent's failure to consult with employees and the union, absence of forewarning and counselling, and non-offer of alternative employment, breaching award provisions. The evidence did not show that reinstatement was impracticable; therefore, the applicant was entitled to reinstatement to another position on no less favourable terms and compensation for lost remuneration, less interim earnings.

Court Disposition

Application for review allowed; orders for reinstatement and compensation granted.

Orders

  • The respondent reinstate the applicant by appointing the applicant to another position on terms and conditions no less favourable than those on which he was employed immediately before the termination of his employment.
  • The respondent pay to the applicant lost remuneration resulting from the termination of his employment, being the wages that he would have received had he not had his employment terminated, less a sum of $4,044, being earnings received from other sources in the meantime.