Ian John McKewan v Boyne Smelters Ltd [1995] IRCA 515

Ian John McKewan v Boyne Smelters Ltd [1995] IRCA 515

The termination was not harsh, unjust or unreasonable under subsection 170DE(2) merely because the respondent did not pay the severance package advanced for the applicant. The applicant was not treated differently from similarly terminated employees, was paid full statutory entitlements and additional benefits, the respondent was only developing a more generous and apparently unique severance package, and the expert medical opinion on the cause of the applicant's condition was unchallenged. Although the application was filed out of time, the applicant was ignorant of his rights and acted promptly once he learned of them, so time was extended to the actual filing date.

Jurisdiction
Australia
Judgment Date
24 August 1995
Procedural Posture
Unlawful Termination Application Under the Industrial Relations Act 1988 / Judgment on Extension of Time and Merits
Outcome
Time extended; application dismissed.
Legal Topics
['termination of Employment' 'unlawful Termination' 'capacity' 'valid Reason' 'severance Package' 'harsh, Unjust or Unreasonable Termination' 'extension of Time']
['industrial Law' 'employment Law'] ['termination of Employment' 'unlawful Termination' 'capacity' 'valid Reason' 'severance Package' 'harsh, Unjust or Unreasonable Termination' 'extension of Time']

Case Brief

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Procedural Posture

Unlawful Termination Application Under the Industrial Relations Act 1988 / Judgment on Extension of Time and Merits

Legal Issues

  1. 1 ["Whether the applicant's termination was harsh, unjust or unreasonable because the respondent did not provide an adequate severance package or extended paid period before vocational assessment." 'Whether the applicant should receive an extension of time to file the application.']

Ratio Decidendi

The termination was not harsh, unjust or unreasonable under subsection 170DE(2) merely because the respondent did not pay the severance package advanced for the applicant. The applicant was not treated differently from similarly terminated employees, was paid full statutory entitlements and additional benefits, the respondent was only developing a more generous and apparently unique severance package, and the expert medical opinion on the cause of the applicant's condition was unchallenged. Although the application was filed out of time, the applicant was ignorant of his rights and acted promptly once he learned of them, so time was extended to the actual filing date.

Court Disposition

Time extended; application dismissed.

Orders

  • ['The time for the making of the application be extended to 1 December 1994.' 'The application be dismissed.']