Mrs Eme Paule & HSUA v McKinnon House [1995] IRCA 103

Mrs Eme Paule & HSUA v McKinnon House [1995] IRCA 103

The respondent breached the award disciplinary procedure by failing to give a final warning and by denying the applicant union representation after she sought it. The respondent also failed to comply with s.170DC because the stated reasons for termination were not squarely put to the applicant with an adequate opportunity to respond, and the termination was not properly characterised as serious and wilful misconduct excusing compliance. Because reappointment was not shown to be impracticable, the applicant was entitled to reappointment, lost remuneration, and continuity of employment.

Jurisdiction
Australia
Judgment Date
03 March 1995
Procedural Posture
Application Seeking Reinstatement and Reimbursement of Remuneration Lost After Termination of Employment / Reasons for Judgment and Orders After Hearing
Outcome
Application allowed; reappointment, lost remuneration and continuity of employment ordered.
Legal Topics
['termination of Employment' 'procedural Fairness' 'award Disciplinary Procedure' 'reinstatement' 'lost Remuneration']
['industrial Law' 'employment Law'] ['termination of Employment' 'procedural Fairness' 'award Disciplinary Procedure' 'reinstatement' 'lost Remuneration']

Case Brief

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Procedural Posture

Application Seeking Reinstatement and Reimbursement of Remuneration Lost After Termination of Employment / Reasons for Judgment and Orders After Hearing

Legal Issues

  1. 1 ['Whether the respondent complied with the disciplinary procedure in the Nurses (Victorian Health Services) Award 1992 [Print N175].' 'Whether the applicant was given an opportunity to respond to the allegations before termination as required by s.170DC of the Industrial Relations Act 1988.' 'Whether the termination could be treated as serious or wilful misconduct relieving the respondent of compliance with s.170DC.' 'Whether reappointment was impracticable under s.170EE.' 'Whether the applicant should receive remuneration lost because of the termination.']

Ratio Decidendi

The respondent breached the award disciplinary procedure by failing to give a final warning and by denying the applicant union representation after she sought it. The respondent also failed to comply with s.170DC because the stated reasons for termination were not squarely put to the applicant with an adequate opportunity to respond, and the termination was not properly characterised as serious and wilful misconduct excusing compliance. Because reappointment was not shown to be impracticable, the applicant was entitled to reappointment, lost remuneration, and continuity of employment.

Court Disposition

Application allowed; reappointment, lost remuneration and continuity of employment ordered.

Orders

  • ['The respondent reappoint the applicant to the position in which the applicant was employed immediately before her termination.' 'The respondent pay to the applicant the sum of $6547.35 being remuneration lost because of the termination.' 'The period from the date of termination to date be treated as one of...