Power v Seovic Civil Engineering Pty Ltd [1997] IRCA 168

Power v Seovic Civil Engineering Pty Ltd [1997] IRCA 168

On balance, things were said to Mr Power that led him genuinely to believe he was being dismissed, and his supervisors did not correct that belief, so the termination was at the initiative of the employer. The employer nevertheless had a valid reason for termination because Mr Power twice had an abusive exchange with the site foreman and initially refused to accept the foreman's authority. The employer contravened s 170DC because Mr Power was not given an opportunity to consider the implications of his conduct before the termination occurred. Compensation was therefore payable, but only nominally, because even if s 170DC had been complied with Mr Power may still have been dismissed, may...

Jurisdiction
Australia
Judgment Date
23 May 1997
Procedural Posture
Application Under S 170 EA Alleging Termination of Employment in Contravention of the Act; Review of Judicial Registrar's Determination Under S 377 / Hearing De Novo on the Employer's Review of Orders Made by a Judicial Registrar
Outcome
Order 2 of the Judicial Registrar's orders was varied by reducing compensation from $5,000 to $750; the damages order under s 170EE(5) was not disturbed.
Legal Topics
['termination at the Initiative of the Employer' 'valid Reason for Termination' 'opportunity to Respond Before Termination' 'compensation for Termination Contravening Statutory Provisions' 'review of Judicial Registrar Decision']
['industrial Law' 'employment Law'] ['termination at the Initiative of the Employer' 'valid Reason for Termination' 'opportunity to Respond Before Termination' 'compensation for Termination Contravening Statutory Provisions' 'review of Judicial Registrar Decision']

Case Brief

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Procedural Posture

Application Under S 170 EA Alleging Termination of Employment in Contravention of the Act; Review of Judicial Registrar's Determination Under S 377 / Hearing De Novo on the Employer's Review of Orders Made by a Judicial Registrar

Legal Issues

  1. 1 ["Whether Mr Power's employment was terminated at the initiative of the employer." "Whether the employer had a valid reason for termination having regard to Mr Power's conduct under s 170DE(1)." 'Whether the employer contravened s 170DC by failing to give Mr Power an opportunity to consider the implications of his conduct before termination.' 'What compensation should be awarded under s 170EE(3).']

Ratio Decidendi

On balance, things were said to Mr Power that led him genuinely to believe he was being dismissed, and his supervisors did not correct that belief, so the termination was at the initiative of the employer. The employer nevertheless had a valid reason for termination because Mr Power twice had an abusive exchange with the site foreman and initially refused to accept the foreman's authority. The employer contravened s 170DC because Mr Power was not given an opportunity to consider the implications of his conduct before the termination occurred. Compensation was therefore payable, but only nominally, because even if s 170DC had been complied with Mr Power may still have been dismissed, may...

Court Disposition

Order 2 of the Judicial Registrar's orders was varied by reducing compensation from $5,000 to $750; the damages order under s 170EE(5) was not disturbed.

Orders

  • ['Order 2 of the orders of the Judicial Registrar of 30 September 1996 be varied by substituting for the sum of $5,000, the sum of $750.']