Hart, James Alexander v Jacobs, Allan Nimmo & Ors [1981] FCA 263

Hart, James Alexander v Jacobs, Allan Nimmo & Ors [1981] FCA 263

The direction given to the applicant to adhere to a standard of dress acceptable to Telecom exceeded what could be implied at common law in the employment contract; the implied term is that the employee must observe a standard of dress reasonable in all the circumstances, not whatever the employer deems acceptable. The Board’s finding and the subsequent sanctions were based on a standard broader than that permitted by this implied term. The Board applied the correct civil standard of proof. The requirements of the Convention did not impose a direct obligation on the employer not to discriminate, but only to pursue a policy to that effect.

Parties
Applicant: James Alexander Hart; Respondent: Allan Nimmo Jacobs; Respondent: Desmond John Lovelock; Respondent: Leo Brock; Respondent: Australian Telecommunications Commission
Jurisdiction
Australia
Judgment Date
23 December 1981
Procedural Posture
Judicial Review / Federal Court, Application to Quash Disciplinary Appeal Board Decision
Outcome
Application allowed; decision of the Disciplinary Appeal Board quashed.
Legal Topics
Implied Terms in Employment Contracts, Standard of Proof in Disciplinary Proceedings, Discrimination in Employment, Application of International Conventions, Employer Authority on Dress Standards
Employment Law Administrative Law Implied Terms in Employment Contracts Standard of Proof in Disciplinary Proceedings Discrimination in Employment Application of International Conventions Employer Authority on Dress Standards

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Parties

James Alexander Hart

Applicant

Allan Nimmo Jacobs

Respondent

Desmond John Lovelock

Respondent

Leo Brock

Respondent

Australian Telecommunications Commission

Respondent

Procedural Posture

Judicial Review / Federal Court, Application to Quash Disciplinary Appeal Board Decision

Legal Issues

  1. 1 Whether the Disciplinary Appeal Board applied the proper standard of proof
  2. 2 Whether the employer had a common law or contractual right to direct the employee's standard of dress
  3. 3 Whether the directions given constituted discrimination within the meaning of Convention No. 111, International Labour Conference 1958

Ratio Decidendi

The direction given to the applicant to adhere to a standard of dress acceptable to Telecom exceeded what could be implied at common law in the employment contract; the implied term is that the employee must observe a standard of dress reasonable in all the circumstances, not whatever the employer deems acceptable. The Board’s finding and the subsequent sanctions were based on a standard broader than that permitted by this implied term. The Board applied the correct civil standard of proof. The requirements of the Convention did not impose a direct obligation on the employer not to discriminate, but only to pursue a policy to that effect.

Court Disposition

Application allowed; decision of the Disciplinary Appeal Board quashed.

Orders

  • The decision of the Disciplinary Appeal Board dismissing the applicant's appeal and imposing fines is quashed.
  • The respondent Commission is to pay the applicant's costs of this application.