Hogan v Employment National (Administration) Pty Ltd [2002] NSWIRComm 313

Hogan v Employment National (Administration) Pty Ltd [2002] NSWIRComm 313

The employment contract and arrangements were found harsh and unfair both at inception and during their currency. The respondent failed to properly investigate or consider the context and basis of workplace tensions, especially those caused by pressure to make unauthorised placement fee claims, and imposed an unjustifiably long probation when a shorter period would have been fairer. Unfairness arose both from standard form terms not subject to negotiation and the conduct of the respondent during employment, warranting variation of the contract and payment of compensation.

Jurisdiction
Australia
Judgment Date
27 November 2002
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Judgment
Outcome
Orders made varying the contract and ordering compensation under s 106(5).
Legal Topics
['unfair Contract' 'probationary Employment' 'termination During Probationary Period' 'industrial Agreements' 'unequal Bargaining Strength' 'remedies for Unfair Contract']
['industrial Relations' 'employment Law'] ['unfair Contract' 'probationary Employment' 'termination During Probationary Period' 'industrial Agreements' 'unequal Bargaining Strength' 'remedies for Unfair Contract']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Judgment

Legal Issues

  1. 1 ['Whether the employment contract and arrangements were unfair, particularly regarding fraudulent placement fee claims and the imposition of a probationary period' 'Whether the applicant was pressured to engage in unauthorised or immoral practices' 'Whether pressure or reporting of such practices led to unfair dismissal during the probationary period' 'Whether the applicant was in a position of unequal bargaining strength' 'Whether the contract’s probationary requirement was unfair and operable']

Ratio Decidendi

The employment contract and arrangements were found harsh and unfair both at inception and during their currency. The respondent failed to properly investigate or consider the context and basis of workplace tensions, especially those caused by pressure to make unauthorised placement fee claims, and imposed an unjustifiably long probation when a shorter period would have been fairer. Unfairness arose both from standard form terms not subject to negotiation and the conduct of the respondent during employment, warranting variation of the contract and payment of compensation.

Court Disposition

Orders made varying the contract and ordering compensation under s 106(5).

Orders

  • ['Declaration that the contract was harsh and unfair at inception and during employment.' 'Contract varied to prohibit requirement for unauthorised placement fee claims, or dismissal for noncompliance with such directions, or reporting such practices. Probation limited to two months.' 'Respondent to pay the...