Jacqueline Sally McNicol and Westco Jeans Pty Ltd [2004] NSWIRComm 111

Jacqueline Sally McNicol and Westco Jeans Pty Ltd [2004] NSWIRComm 111

The applicant was constructively dismissed because the respondent removed her from the roster against her will, making the respondent the true initiator of the termination. The Commission accepted the applicant's evidence that she had approved leave for HSC commitments, had not resigned, and was taken off the roster after inquiries about wages. The dismissal was unrelated to her attitude, performance or conduct, and she was given no warning, notice, or opportunity to respond, making it substantively and procedurally harsh, unjust and unreasonable. Reinstatement was impractical, so compensation was ordered up to the statutory maximum calculated under s89(5).

Jurisdiction
Australia
Judgment Date
21 May 2004
Procedural Posture
Application by Jacqueline Sally Mc Nicol Re Unfair Dismissal Pursuant to Section 84 of the Industrial Relations Act 1996 / Arbitration Following Unsuccessful Conciliation; Decision and Orders
Outcome
Application upheld; constructive dismissal found; dismissal harsh, unjust and unreasonable; compensation ordered.
Legal Topics
['constructive Dismissal' 'termination at the Initiative of the Employer' 'procedural Fairness' 'casual or Part Time Employment' 'compensation' 'reinstatement Impractical']
['industrial Relations' 'employment Law' 'unfair Dismissal'] ['constructive Dismissal' 'termination at the Initiative of the Employer' 'procedural Fairness' 'casual or Part Time Employment' 'compensation' 'reinstatement Impractical']

Case Brief

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Procedural Posture

Application by Jacqueline Sally Mc Nicol Re Unfair Dismissal Pursuant to Section 84 of the Industrial Relations Act 1996 / Arbitration Following Unsuccessful Conciliation; Decision and Orders

Legal Issues

  1. 1 ['Whether the applicant was removed from the roster by the respondent and thereby constructively dismissed.' 'Whether the termination of employment was at the initiative of the employer or the employee.' 'Whether the dismissal was harsh, unjust or unreasonable.' 'Whether the dismissal was procedurally unfair.' 'Whether reinstatement or re-employment was practical and, if not, what compensation should be ordered.']

Ratio Decidendi

The applicant was constructively dismissed because the respondent removed her from the roster against her will, making the respondent the true initiator of the termination. The Commission accepted the applicant's evidence that she had approved leave for HSC commitments, had not resigned, and was taken off the roster after inquiries about wages. The dismissal was unrelated to her attitude, performance or conduct, and she was given no warning, notice, or opportunity to respond, making it substantively and procedurally harsh, unjust and unreasonable. Reinstatement was impractical, so compensation was ordered up to the statutory maximum calculated under s89(5).

Court Disposition

Application upheld; constructive dismissal found; dismissal harsh, unjust and unreasonable; compensation ordered.

Orders

  • ['Pursuant to s89(5) of the Industrial Relations Act 1996, the respondent, Westco Jeans Pty Ltd, shall pay to the applicant, Jacqueline McNicol, the sum of $1,890.23.' 'The amount so ordered shall be paid within 14 days.' 'These proceedings are now concluded.']