Harold Malcolm Bean and anor v Milstern Retirement Services Pty Ltd [1995] IRCA 248

Harold Malcolm Bean and anor v Milstern Retirement Services Pty Ltd [1995] IRCA 248

Milstern contravened s170DC because the principal basis for dismissal was the Beans' involvement in the residents' meeting and communication of the 10 June 1994 letter, yet they were given no opportunity to respond and it was not unreasonable to expect Milstern to provide one. Milstern also contravened s170DE because it failed to prove a valid reason for termination: the residents' meeting and Mr Bean's failure to tell Mrs Phillips about it did not, in the circumstances, justify dismissal, and the evidence of poor management did not discharge the statutory onus, particularly given that the Beans were regarded by residents as satisfactory and the employer's assessment was influenced by...

Jurisdiction
Australia
Judgment Date
02 June 1995
Procedural Posture
Application Under S170 EA of the Industrial Relations Act 1988 Alleging Unlawful Termination of Employment / Review by a Judge of the Court of a Judicial Registrar's Determination; Hearing De Novo
Outcome
Application on review allowed in part; termination declared to have contravened ss170DC and 170DE; compensation awarded; Judicial Registrar's order revoked; claims for additional public holiday payment dismissed and pay in lieu of notice treated as included in compensation.
Legal Topics
['termination of Employment' 'opportunity to Respond to Allegations' 'valid Reason for Dismissal' 'compensation for Unlawful Termination' 'reinstatement Impracticability']
['industrial Law' 'employment Law'] ['termination of Employment' 'opportunity to Respond to Allegations' 'valid Reason for Dismissal' 'compensation for Unlawful Termination' 'reinstatement Impracticability']

Case Brief

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Procedural Posture

Application Under S170 EA of the Industrial Relations Act 1988 Alleging Unlawful Termination of Employment / Review by a Judge of the Court of a Judicial Registrar's Determination; Hearing De Novo

Legal Issues

  1. 1 ["Whether the termination of Mr and Mrs Bean's employment contravened s170DC of the Industrial Relations Act 1988 because they were not given an opportunity to defend themselves against allegations related to their conduct or performance." 'Whether the termination contravened s170DE of the Industrial Relations Act 1988 because Milstern failed to prove a valid reason connected with capacity, conduct or operational requirements.' 'Whether reinstatement was impracticable under s170EE.' 'What amount of compensation should be awarded if reinstatement was impracticable.' 'Whether Mr and Mrs Bean were entitled to pay in lieu of notice or payment for public holidays worked.']

Ratio Decidendi

Milstern contravened s170DC because the principal basis for dismissal was the Beans' involvement in the residents' meeting and communication of the 10 June 1994 letter, yet they were given no opportunity to respond and it was not unreasonable to expect Milstern to provide one. Milstern also contravened s170DE because it failed to prove a valid reason for termination: the residents' meeting and Mr Bean's failure to tell Mrs Phillips about it did not, in the circumstances, justify dismissal, and the evidence of poor management did not discharge the statutory onus, particularly given that the Beans were regarded by residents as satisfactory and the employer's assessment was influenced by...

Court Disposition

Application on review allowed in part; termination declared to have contravened ss170DC and 170DE; compensation awarded; Judicial Registrar's order revoked; claims for additional public holiday payment dismissed and pay in lieu of notice treated as included in compensation.

Orders

  • ['Declares that the termination of the employment of the applicants contravened ss170DC and 170DE.' 'The Respondent pay each applicant compensation in the sum of $7,500.00.' 'The order of the Judicial Registrar of 16 December 1994 be revoked.']