Irving v Jones Lang LaSalle Australia Limited and another [2006] NSWIRComm 305

Irving v Jones Lang LaSalle Australia Limited and another [2006] NSWIRComm 305

The employment contract was unfair under s 106 of the Industrial Relations Act 1996 in so far as it failed to provide for (a) pro-rata and likely bonus payments during the termination/notice period, (b) superannuation contributions as part of the payment in lieu of notice, and (c) vesting or value for unvested bonus shares upon redundancy. However, the restraint clause, the notice period, and failure to provide a separate severance payment were not, in the circumstances, unfair. Orders were made varying the contract and for monetary payments accordingly.

Jurisdiction
Australia
Judgment Date
21 September 2006
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 (nsw) / Judgment After Hearing
Outcome
Orders partly in favour of the applicant.
Legal Topics
['unfair Contract Terms' 'termination of Employment' 'redundancy' 'restraint of Trade' 'payment in Lieu of Notice' 'bonus Entitlement' 'severance Payment' 'superannuation']
['employment Law' 'industrial Law'] ['unfair Contract Terms' 'termination of Employment' 'redundancy' 'restraint of Trade' 'payment in Lieu of Notice' 'bonus Entitlement' 'severance Payment' 'superannuation']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 (nsw) / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the applicant's employment contract was unfair, unjust, harsh, unconscionable or against the public interest under s 106 of the Industrial Relations Act 1996 (NSW)" 'Whether the restraint clause contributed to unfairness' 'Whether the payment in lieu of notice was unfairly low' 'Whether failure to provide for bonus, pro-rata bonus, severance and superannuation in the termination payment was unfair' 'Whether forfeiture of unvested bonus shares on redundancy was unfair']

Ratio Decidendi

The employment contract was unfair under s 106 of the Industrial Relations Act 1996 in so far as it failed to provide for (a) pro-rata and likely bonus payments during the termination/notice period, (b) superannuation contributions as part of the payment in lieu of notice, and (c) vesting or value for unvested bonus shares upon redundancy. However, the restraint clause, the notice period, and failure to provide a separate severance payment were not, in the circumstances, unfair. Orders were made varying the contract and for monetary payments accordingly.

Court Disposition

Orders partly in favour of the applicant.

Orders

  • ["Contract of employment varied from inception to include a term that respondents will pay, on termination in lieu of 6 months' notice, all amounts the applicant would have earned (base salary, likely bonus, superannuation) for the period 17 October 2001 to 31 December 2001." 'Contract varied to include pro-rata...