Peter Rochester Gow v Cronulla Sutherland Leagues Club Ltd [2002] NSWIRComm 247

Peter Rochester Gow v Cronulla Sutherland Leagues Club Ltd [2002] NSWIRComm 247

The original employment contract was not unfair either on its terms or in its operation. The applicant's conduct amounted to serious misconduct justifying summary (constructive) dismissal, and thus no unfairness or procedural failing arose in that context. However, at the 27 April 1999 Board meeting, an arrangement (within s105) was made whereby the applicant resigned in exchange for a consultancy with certain agreed terms and outstanding matters to be negotiated in good faith. The respondents failed to negotiate in good faith, repudiated the arrangement, denied its existence, and failed to pay for work performed, rendering the arrangement unfair within s106. The Commission exercised its...

Jurisdiction
Australia
Judgment Date
03 October 2002
Procedural Posture
Application Under S106 Industrial Relations Act 1996 (nsw) / Merits Hearing and Judgment
Outcome
Relief granted in part; arrangement varied; money order made against first and second respondents; application against third respondent dismissed; costs reserved
Legal Topics
['unfair Contracts' 'procedural Fairness' 'constructive Dismissal' 'good Faith Bargaining' 'employment Termination' 'remedies for Unfair Contracts']
['employment Law' 'industrial Law'] ['unfair Contracts' 'procedural Fairness' 'constructive Dismissal' 'good Faith Bargaining' 'employment Termination' 'remedies for Unfair Contracts']

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Procedural Posture

Application Under S106 Industrial Relations Act 1996 (nsw) / Merits Hearing and Judgment

Legal Issues

  1. 1 ['Whether the employment contract was or became an unfair contract as a result of the conduct of the respondents' 'Whether the applicant was denied procedural fairness at termination' 'Whether an arrangement or contract arose at the meeting of 27 April 1999 and if so, whether it was unfair, harsh or unconscionable under s106 of the Industrial Relations Act 1996' 'Whether the applicant is entitled to monetary compensation for work performed or loss of expected benefit']

Ratio Decidendi

The original employment contract was not unfair either on its terms or in its operation. The applicant's conduct amounted to serious misconduct justifying summary (constructive) dismissal, and thus no unfairness or procedural failing arose in that context. However, at the 27 April 1999 Board meeting, an arrangement (within s105) was made whereby the applicant resigned in exchange for a consultancy with certain agreed terms and outstanding matters to be negotiated in good faith. The respondents failed to negotiate in good faith, repudiated the arrangement, denied its existence, and failed to pay for work performed, rendering the arrangement unfair within s106. The Commission exercised its...

Court Disposition

Relief granted in part; arrangement varied; money order made against first and second respondents; application against third respondent dismissed; costs reserved

Orders

  • ['The arrangement is varied to require payment to the applicant for work performed on a pro-rata basis plus three months in lieu of notice, totalling $105,000 plus interest from 2 September 1999;' 'No order for reputation or distress;' 'No order for introduction fee or additional expenses;' 'Application against the...