McGarry, Patrick v Boonah Clothing Pty Ltd [1988] FCA 219

McGarry, Patrick v Boonah Clothing Pty Ltd [1988] FCA 219

The respondent's dismissals were not for inefficiency justifying instant dismissal, but because it no longer wished the jobs performed by the employees to be done by anyone, resulting in reduction of factory capacity. This triggers entitlement to severance pay under clause 51(c) of the Clothing Trades Award 1982....

Source-derived case information.

Parties
Applicant: Patrick McGarry; Respondent: Boonah Clothing Pty. Ltd.
Jurisdiction
Australia
Judgment Date
17 May 1988
Procedural Posture
Civil / Final Judgment
Outcome
Judgment for applicant; penalty imposed; orders for payment of severance to employees
Legal Topics
Award Breach, Employee Dismissal, Severance Pay, Hearsay Evidence, Adjournment, Redundancy, Instant Dismissal
Industrial Law Evidence Practice and Procedure Award Breach Employee Dismissal Severance Pay Hearsay Evidence Adjournment +2 more

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Summary, issues, holding and outcome

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Parties

Patrick McGarry

Applicant

Boonah Clothing Pty. Ltd.

Respondent

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Whether employees were dismissed because the employer no longer wished the jobs done by anyone as opposed to inefficiency justifying instant dismissal
  2. 2 Entitlement of dismissed employees to severance payments under award provisions
  3. 3 Admissibility of deceased manager's written statement under state evidence law and federal jurisdiction

Ratio Decidendi

The respondent's dismissals were not for inefficiency justifying instant dismissal, but because it no longer wished the jobs performed by the employees to be done by anyone, resulting in reduction of factory capacity. This triggers entitlement to severance pay under clause 51(c) of the Clothing Trades Award 1982. Admissibility of hearsay written statement (manager's statement) falls under State law via Judiciary Act 1903 s.79, as Commonwealth law does not 'otherwise provide.' It is improper to adjourn proceedings to permit a party to alter right to severance pay by applying to vary award requirements after liability is established.

Court Disposition

Judgment for applicant; penalty imposed; orders for payment of severance to employees

Orders

  • Respondent to pay a penalty of $750.00 for breach of clause 51(c) of the Clothing Trades Award 1982
  • Penalty to be paid to the Clothing & Allied Trades Union of Australia