Westpac Banking Corporation v Wittenberg [2016] FCAFC 33

Westpac Banking Corporation v Wittenberg [2016] FCAFC 33

Express contract terms regarding notice and redundancy policy displace implied terms such as reasonable notice; bonus payments under discretionary schemes are not to be included in calculation of severance/notice pay unless contractually guaranteed; employer's policies are contractually binding only upon express or mutually implied incorporation; claims in negligence or for misleading conduct cannot succeed when contractual claims are satisfied and no loss proven; costs regarding offers of compromise are calculated comparing the offer to the judgment including interest up to the date of the offer.

Jurisdiction
Australia
Judgment Date
14 March 2016
Procedural Posture
Appeal / Full Court Judgment
Outcome
Appeals substantially dismissed, with partial allowance in two proceedings; cross-appeals dismissed; costs generally awarded as taxed or as specified.
Legal Topics
['termination of Employment' 'redundancy' 'contractual Force of Policies' 'implied Terms' 'bonus Payments' 'negligent Misstatement' 'misleading and Deceptive Conduct' 'calculation of Severance Pay' 'wrongful Dismissal' 'repudiation' 'costs']
['employment Law' 'industrial Law' 'contract Law' 'tort Law'] ['termination of Employment' 'redundancy' 'contractual Force of Policies' 'implied Terms' 'bonus Payments' 'negligent Misstatement' 'misleading and Deceptive Conduct' 'calculation of Severance Pay' 'wrongful Dismissal' 'repudiation' 'costs']

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Procedural Posture

Appeal / Full Court Judgment

Legal Issues

  1. 1 ["Whether employer's policies formed part of contracts of employment" 'Whether an implied term of reasonable notice is always read into a contract of employment when a contract of employment contains an express term for notice' 'Calculation of severance pay: whether bonuses should be included' 'Contractual enforceability of discretionary bonus payments' 'Whether negligent misstatement or misleading or deceptive conduct claims can be maintained alongside contractual claims' 'Whether action for negligent misstatement lies where a contractual claim is satisfied' 'Repudiation by employer concerning secondment policy' 'Costs calculation in light of offer of compromise']

Ratio Decidendi

Express contract terms regarding notice and redundancy policy displace implied terms such as reasonable notice; bonus payments under discretionary schemes are not to be included in calculation of severance/notice pay unless contractually guaranteed; employer's policies are contractually binding only upon express or mutually implied incorporation; claims in negligence or for misleading conduct cannot succeed when contractual claims are satisfied and no loss proven; costs regarding offers of compromise are calculated comparing the offer to the judgment including interest up to the date of the offer.

Court Disposition

Appeals substantially dismissed, with partial allowance in two proceedings; cross-appeals dismissed; costs generally awarded as taxed or as specified.

Orders

  • ["NSD 405 of 2015: Appeal allowed; orders set aside; judgment for applicant for $60,000 plus interest; respondent pays 25% of applicant's costs; respondent pays appeal costs; cross-appeal dismissed with costs." 'NSD 406 of 2015: Appeal allowed in part; costs orders varied as to party and indemnity basis; no order as...