Fishwives Pty Limited and Stephen Fong and another [2004] NSWIRComm 17

Fishwives Pty Limited and Stephen Fong and another [2004] NSWIRComm 17

Leave to appeal was refused for Mr Fong as he did not obtain employment after termination and the proviso did not operate; leave was granted for Ms Chalmers due to a legal error in the Award’s interpretation, but her subsequent limited employment did not warrant a reduction of severance pay; the orders at first instance were confirmed and costs awarded in Mr Fong’s matter.

Parties
Appellant/cross Respondent: Fishwives Pty Limited; Respondent/cross Appellant: Stephen Fong; Respondent/cross Appellant: Christine Chalmers
Jurisdiction
Australia
Judgment Date
05 December 2003
Procedural Posture
Appeal / Full Bench Decision
Outcome
appeal partly upheld; leave to appeal refused for Mr Fong, granted for Ms Chalmers; appeal in Ms Chalmers' case upheld only to rectify legal error, otherwise dismissed; first instance orders confirmed; extension of time refused; costs awarded to Stephen Fong.
Legal Topics
Severance Pay, Award Interpretation, Leave to Appeal, Costs on Appeal, Extension of Time
Industrial Relations Severance Pay Award Interpretation Leave to Appeal Costs on Appeal Extension of Time

Case Brief

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Parties

Fishwives Pty Limited

Appellant/cross Respondent

Stephen Fong

Respondent/cross Appellant

Christine Chalmers

Respondent/cross Appellant

Procedural Posture

Appeal / Full Bench Decision

Legal Issues

  1. 1 Whether leave to appeal should be granted regarding severance pay under the Award proviso
  2. 2 Whether Macdonald C erred in interpreting the Award proviso for severance pay
  3. 3 Whether respondents obtained employment after termination affecting severance entitlement

Ratio Decidendi

Leave to appeal was refused for Mr Fong as he did not obtain employment after termination and the proviso did not operate; leave was granted for Ms Chalmers due to a legal error in the Award’s interpretation, but her subsequent limited employment did not warrant a reduction of severance pay; the orders at first instance were confirmed and costs awarded in Mr Fong’s matter.

Court Disposition

appeal partly upheld; leave to appeal refused for Mr Fong, granted for Ms Chalmers; appeal in Ms Chalmers' case upheld only to rectify legal error, otherwise dismissed; first instance orders confirmed; extension of time refused; costs awarded to Stephen Fong.

Orders

  • Leave to appeal refused in Mr Fong’s case.
  • Leave to appeal granted in Ms Chalmers’ case.