Kenneth Ross Milburn v Capral Aluminum Ltd [2004] NSWIRComm 302

Procedural Posture

Application Under S106 of the Industrial Relations Act 1996 / Judgment After Hearing

Legal Issues

1. 1 ["Whether the applicant's contract of employment was unfair, harsh or unconscionable in its terms or operation on termination due to redundancy under s106 of the Industrial Relations Act 1996." "Whether the respondent's Staff redundancy policy was unfair because it imposed an 18 month salary cap and did not pay accrued sick leave, while Award employees received benefits under the Capral Aluminium Limited (Redundancy) Enterprise Agreement 2000 without such a cap and with payment of accumulated sick leave." "Whether the respondent's failure to consult Staff employees or publish changes to the Staff redundancy policy made the applicant's termination arrangements unfair." 'Whether the differential treatment between Staff employees and Award employees required relief under s106.']

Ratio Decidendi

Although the respondent's decision not to publish the Staff Redundancy Policy and to vary it without consultation was unacceptable corporate behaviour, the applicant's redundancy package was objectively fair in all the circumstances. The 18 month cap had been company policy since 1992, severance caps are not intrinsically unfair, the applicant had no right to payment of accrued sick leave, the revised package gave recognition for long service, and the differential between the Staff and Award redundancy policies did not make the applicant's contract unfair on termination under s106.

Court Disposition

Application dismissed.

Orders

• ['The application under s106 of the Industrial Relations Act 1996 (NSW) is dismissed.' 'Leave to apply as to costs.']