Russell Gilger v EDS (Australia) Pty Limited and EDS Global Services Inc [2005] NSWIRComm 21

Russell Gilger v EDS (Australia) Pty Limited and EDS Global Services Inc [2005] NSWIRComm 21

The contract was unfair insofar as it permitted or failed to prevent the respondents from terminating the applicant's expatriate assignment in September 2001 effective 31 October 2001 in the circumstances. The first respondent allowed the applicant to believe that his two-year expatriate assignment had ongoing security, failed to make clear that the assignment was at an end, approved the relocation of his wife and children to Australia, and did not genuinely and positively assist him to find alternative expatriate employment although it gave that impression. The respondents were jointly and severally responsible for the unfairness. However, the applicant's assertion that repatriation to...

Jurisdiction
Australia
Judgment Date
24 February 2005
Procedural Posture
Application for Relief Under Section 106 of the Industrial Relations Act 1996 Alleging an Unfair Contract / Judgment After Hearing
Outcome
Application succeeded in part; contractual unfairness found and compensatory relief, interest and costs granted, with parties directed to confer on draft orders.
Legal Topics
['unfair Contract' 'expatriate Assignment' 'termination of Employment' 'repatriation' 'reasonable Notice' 'compensation' 'interest' 'costs']
['industrial Relations' 'employment Law' 'contract Law'] ['unfair Contract' 'expatriate Assignment' 'termination of Employment' 'repatriation' 'reasonable Notice' 'compensation' 'interest' 'costs']

Case Brief

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Procedural Posture

Application for Relief Under Section 106 of the Industrial Relations Act 1996 Alleging an Unfair Contract / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the contract and/or arrangement under which the applicant performed work was unfair, harsh, unconscionable or contrary to the public interest under s106 of the Industrial Relations Act 1996.' "Whether the respondents acted unfairly in terminating the applicant's expatriate assignment before the anticipated repatriation date." 'Whether the respondents were obliged to assist the applicant with alternative placement or repatriation under the EDS Global Deployment Policy.' 'Whether the applicant established that repatriation to the United States would mean certain unemployment.' 'What compensation, interest and costs should be ordered if contractual unfairness was established.']

Ratio Decidendi

The contract was unfair insofar as it permitted or failed to prevent the respondents from terminating the applicant's expatriate assignment in September 2001 effective 31 October 2001 in the circumstances. The first respondent allowed the applicant to believe that his two-year expatriate assignment had ongoing security, failed to make clear that the assignment was at an end, approved the relocation of his wife and children to Australia, and did not genuinely and positively assist him to find alternative expatriate employment although it gave that impression. The respondents were jointly and severally responsible for the unfairness. However, the applicant's assertion that repatriation to...

Court Disposition

Application succeeded in part; contractual unfairness found and compensatory relief, interest and costs granted, with parties directed to confer on draft orders.

Orders

  • ['The applicant is to be compensated on the basis of his annual remuneration package, inclusive of specific expatriate allowances, up to and including 5 February 2002.' "The contract of employment is to be varied to provide for notice or payment in lieu of four months from 5 February 2002 based on the applicant's...