Peter Rudolf Hemmert v Australian Paper [1996] IRCA 45

Peter Rudolf Hemmert v Australian Paper [1996] IRCA 45

The applicant submitted a conditional resignation, stating that he would resign if total and permanent incapacity benefits were approved by the trustee. When the trustees approved the total and permanent disability payment on 2 December 1994, the resignation became effective and the employment was terminated by the applicant's act. Although the applicant was reluctant, the respondent's alleged failure to consider alternatives and withdrawal of paid sick leave did not amount to improper pressure or force making the resignation unwilling. The applicant therefore did not prove termination at the initiative of the employer.

Jurisdiction
Australia
Judgment Date
19 January 1996
Procedural Posture
Application Under Section 170 EA of the Industrial Relations Act 1988 With a Claim Under Section 430 in the Associated Jurisdiction for Unpaid Wages and Other Entitlements / Preliminary Issue and Reasons for Judgment
Outcome
Application dismissed.
Legal Topics
['unlawful Termination' 'conditional Resignation' 'termination at the Initiative of the Employer' 'sick Leave' 'total and Permanent Disability Superannuation Payment']
['industrial Law' 'employment Law'] ['unlawful Termination' 'conditional Resignation' 'termination at the Initiative of the Employer' 'sick Leave' 'total and Permanent Disability Superannuation Payment']

Case Brief

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Procedural Posture

Application Under Section 170 EA of the Industrial Relations Act 1988 With a Claim Under Section 430 in the Associated Jurisdiction for Unpaid Wages and Other Entitlements / Preliminary Issue and Reasons for Judgment

Legal Issues

  1. 1 ['Whether the applicant submitted a conditional resignation which became effective when the trustees of the superannuation fund approved his claim for a total and permanent disability payment.' "Whether the applicant's employment was terminated at the initiative of the respondent." 'Whether the applicant was forced to resign by the conduct of the respondent so that the resignation was not willing.']

Ratio Decidendi

The applicant submitted a conditional resignation, stating that he would resign if total and permanent incapacity benefits were approved by the trustee. When the trustees approved the total and permanent disability payment on 2 December 1994, the resignation became effective and the employment was terminated by the applicant's act. Although the applicant was reluctant, the respondent's alleged failure to consider alternatives and withdrawal of paid sick leave did not amount to improper pressure or force making the resignation unwilling. The applicant therefore did not prove termination at the initiative of the employer.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.']