Ross Salvatore v BGC Concrete [1995] IRCA 680

Ross Salvatore v BGC Concrete [1995] IRCA 680

The termination contravened Sections 170DC and 170DE. The applicant was not given an opportunity to defend himself against the driving incident allegations before the decision to terminate was made, and the exception in Section 170DC(b) did not apply. The allegations of poor attitude and lack of co-operation were...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
21 December 1995
Procedural Posture
Application Under Section 170 EA of the Industrial Relations Act 1988 Arising Out of Termination of Employment in Alleged Contravention of Division 3 of Part VIA of the Act / Reasons for Judgment and Minute of Orders After Hearing
Outcome
Application allowed; termination declared to have contravened Sections 170DC and 170DE; reinstatement and lost remuneration ordered.
Legal Topics
['termination of Employment' 'unlawful Termination' 'procedural Fairness' 'valid Reason' 'harsh, Unjust or Unreasonable Termination' 'reinstatement' 'lost Remuneration']
['industrial Law' 'employment Law'] ['termination of Employment' 'unlawful Termination' 'procedural Fairness' 'valid Reason' 'harsh, Unjust or Unreasonable Termination' 'reinstatement' 'lost Remuneration']

Source-derived case record

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Procedural Posture

Application Under Section 170 EA of the Industrial Relations Act 1988 Arising Out of Termination of Employment in Alleged Contravention of Division 3 of Part VIA of the Act / Reasons for Judgment and Minute of Orders After Hearing

Legal Issues

  1. 1 ["Whether the respondent breached Section 170DC by terminating the applicant's employment for reasons related to conduct or performance without giving him an opportunity to defend himself against the allegations." "Whether there was a valid reason for termination connected with the applicant's capacity or conduct under Section 170DE." 'Whether termination for the driving incident, attitude, lateness, lack of co-operation or the slumping incident was harsh, unjust or unreasonable.' 'Whether reinstatement and lost remuneration should be ordered under Section 170EE.']

Ratio Decidendi

The termination contravened Sections 170DC and 170DE. The applicant was not given an opportunity to defend himself against the driving incident allegations before the decision to terminate was made, and the exception in Section 170DC(b) did not apply. The allegations of poor attitude and lack of co-operation were not put with sufficient specificity at a relevant time. The slumping incident had been raised with the applicant, but it did not constitute a valid reason for termination. The driving incident was sufficiently connected with employment and could have been a valid reason, but termination for it was harsh, unjust and unreasonable because no actual danger occurred, unsafe vehicle...

Court Disposition

Application allowed; termination declared to have contravened Sections 170DC and 170DE; reinstatement and lost remuneration ordered.

Orders

  • ['It is declared that the termination of the employment of the applicant by the respondent ("the termination") contravened Sections 170DC and 170DE of the Act.' 'Within 14 days of the date of this order, the respondent shall reinstate the applicant by appointing him to the position in which he was employed...