Michael Thomes v Keycorp Limited [2003] NSWIRComm 459

Michael Thomes v Keycorp Limited [2003] NSWIRComm 459

The contract was unfair due to inducement by misrepresentations, breach of fundamental terms regarding performance incentive negotiation and review, and lack of fair severance provisions. Keycorp repudiated the contract by failing to engage in good faith negotiations on performance criteria and failing to review them in writing, causing constructive dismissal. Variation of contract and compensation are warranted under Industrial Relations Act s106.

Jurisdiction
Australia
Judgment Date
17 December 2003
Procedural Posture
Application Under S.106 of the Industrial Relations Act 1996 / Final Judgment and Orders
Outcome
Judgment for the applicant
Legal Topics
['unfair Contract' 'constructive Dismissal' 'misrepresentation' 'employment Contract' 'performance Incentives' 'remuneration Dispute']
['employment Law' 'industrial Relations'] ['unfair Contract' 'constructive Dismissal' 'misrepresentation' 'employment Contract' 'performance Incentives' 'remuneration Dispute']

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Procedural Posture

Application Under S.106 of the Industrial Relations Act 1996 / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the contract of employment between Michael Thomes and Keycorp Limited was unfair under Part 9 of the Industrial Relations Act 1996' 'Whether Keycorp breached the employment contract by failing to negotiate performance parameters in good faith and by repudiation' 'Whether Michael Thomes was constructively dismissed' 'What compensation and variation of contract terms are appropriate']

Ratio Decidendi

The contract was unfair due to inducement by misrepresentations, breach of fundamental terms regarding performance incentive negotiation and review, and lack of fair severance provisions. Keycorp repudiated the contract by failing to engage in good faith negotiations on performance criteria and failing to review them in writing, causing constructive dismissal. Variation of contract and compensation are warranted under Industrial Relations Act s106.

Court Disposition

Judgment for the applicant

Orders

  • ['The contract is varied so that if the respondent wrongfully terminates, the applicant is entitled to 18 months remuneration; all incentive payments owing to the date of termination are payable.' 'Respondent to pay applicant $1,552,382.00.' 'Liberty to apply in relation to interest and costs.']