Burslem and Construction, Forestry, Mining & Energy Union v Ajax Gregson Roofing Tiles Pty Ltd [1996] IRCA 153

Burslem and Construction, Forestry, Mining & Energy Union v Ajax Gregson Roofing Tiles Pty Ltd [1996] IRCA 153

The 7 August 1995 letter was ambiguous and did not constitute written notice of termination for s170EA(3), so the application was not out of time. Although the respondent's decision to move from direct labour to independent contractors was the reason for termination and did not contravene s170DE(1), the dismissal of a 19-year employee was harsh, unjust and unreasonable because the respondent gave less than one month's notice, failed to discuss the change or alternatives with the applicant before termination, offered only the option of becoming an independent contractor, and did not consider measures to mitigate the adverse impact. Reinstatement was impracticable and compensation was...

Jurisdiction
Australia
Judgment Date
24 April 1996
Procedural Posture
Application Pursuant to S170 EA of the Industrial Relations Act 1988 Alleging Unlawful Termination / Reasons for Decision and Minutes of Order After Hearing
Outcome
Application allowed; compensation ordered.
Legal Topics
['unlawful Termination' 'operational Requirements' 'harsh, Unjust or Unreasonable Termination' 'compensation' 'jurisdiction and Time for Filing']
['industrial Law' 'employment Law'] ['unlawful Termination' 'operational Requirements' 'harsh, Unjust or Unreasonable Termination' 'compensation' 'jurisdiction and Time for Filing']

Case Brief

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Procedural Posture

Application Pursuant to S170 EA of the Industrial Relations Act 1988 Alleging Unlawful Termination / Reasons for Decision and Minutes of Order After Hearing

Legal Issues

  1. 1 ['Whether the application was filed within time or whether written notice of termination had been given so as to engage s170EA(3).' "Whether the respondent terminated the applicant's employment for a valid reason based on operational requirements." 'Whether the termination was harsh, unjust or unreasonable having regard to the manner in which the change to independent contracting was implemented.' 'Whether reinstatement or compensation was the appropriate remedy.']

Ratio Decidendi

The 7 August 1995 letter was ambiguous and did not constitute written notice of termination for s170EA(3), so the application was not out of time. Although the respondent's decision to move from direct labour to independent contractors was the reason for termination and did not contravene s170DE(1), the dismissal of a 19-year employee was harsh, unjust and unreasonable because the respondent gave less than one month's notice, failed to discuss the change or alternatives with the applicant before termination, offered only the option of becoming an independent contractor, and did not consider measures to mitigate the adverse impact. Reinstatement was impracticable and compensation was...

Court Disposition

Application allowed; compensation ordered.

Orders

  • ['The respondent pay to the applicant compensation in the sum of $6981.00.' 'The time for payment is twenty one days from the date of order.']