Farr v Narellan & District Real Estate Pty Limited and Anor [2007] NSWIRComm 228

Farr v Narellan & District Real Estate Pty Limited and Anor [2007] NSWIRComm 228

The Court found the respondents did not establish a factual basis for Mr Farr’s summary dismissal, failed to undertake a fair investigation, and that the contract was unfair in procedure and in providing only minimal notice, given the circumstances. The contract was varied ab initio to require fair procedures before dismissal; a more substantial notice period (three months) was found fair. The applicant was entitled to money orders reflecting outstanding payments, fair notice, and commission, less mitigation. Interest ordered. Costs to follow event.

Parties
Applicant: Joseph Kelly Farr; First Respondent: Narellan & District Real Estate Pty Limited; Second Respondent: Michael John Everard
Jurisdiction
Australia
Judgment Date
05 September 2007
Procedural Posture
Unfair Contract Application / Judgment
Outcome
Application granted in part. Declaration that the contract was unfair; contract varied ab initio to require fair procedures and notice; money orders (for three months' notice and entitlements) to be calculated and brought in by the applicant. Interest ordered. Costs to follow the event, as agreed or assessed.
Legal Topics
Unfair Contracts, Summary Dismissal, Notice of Termination, Commission Entitlements, Procedural Fairness in Dismissal
Employment Law Industrial Law Unfair Contracts Summary Dismissal Notice of Termination Commission Entitlements Procedural Fairness in Dismissal

Case Brief

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Parties

Joseph Kelly Farr

Applicant

Narellan & District Real Estate Pty Limited

First Respondent

Michael John Everard

Second Respondent

Procedural Posture

Unfair Contract Application / Judgment

Legal Issues

  1. 1 Whether the summary dismissal of the applicant for alleged misconduct was justified
  2. 2 Whether the contract of employment was unfair due to its notice and termination provisions and lack of fair investigation procedures
  3. 3 Whether the applicant was entitled to outstanding commissions and other benefits upon termination

Ratio Decidendi

The Court found the respondents did not establish a factual basis for Mr Farr’s summary dismissal, failed to undertake a fair investigation, and that the contract was unfair in procedure and in providing only minimal notice, given the circumstances. The contract was varied ab initio to require fair procedures before dismissal; a more substantial notice period (three months) was found fair. The applicant was entitled to money orders reflecting outstanding payments, fair notice, and commission, less mitigation. Interest ordered. Costs to follow event.

Court Disposition

Application granted in part. Declaration that the contract was unfair; contract varied ab initio to require fair procedures and notice; money orders (for three months' notice and entitlements) to be calculated and brought in by the applicant. Interest ordered. Costs to follow the event, as agreed or assessed.

Orders

  • Declaration the employment contract is unfair and varied ab initio to require fair investigative procedures and notice of termination procedures as set out in judgment.
  • Respondents to pay applicant outstanding salary, commission, superannuation and other entitlements due at termination.