Stephen Aquilina v JNL Electronics (Australasia) Pty Ltd and ors. [2006] NSWIRComm 57

Stephen Aquilina v JNL Electronics (Australasia) Pty Ltd and ors. [2006] NSWIRComm 57

The contract was unfair in not providing reasonable notice and severance for the CEO, and in unilaterally re-characterising an advance bonus/commission as a loan. The employment contract is declared void ab initio except for payments already made. Applicant entitled to 9 months' remuneration (including salary and estimated bonus) less what was paid, and $2,000 in expenses. 70% liability apportioned to the fourth respondent given control and benefit derived. Interest and costs awarded accordingly.

Jurisdiction
Australia
Judgment Date
24 February 2006
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Judgment After Hearing (including Ex Parte Against 4th Respondent, Settled in Part Against 3rd Respondent, Discontinued Against 1st and 2nd Respondents)
Outcome
Application dismissed against third respondent by consent (with costs); orders made against fourth respondent (liability and payment of compensation, expenses, interest, and costs).
Legal Topics
['unfair Contracts' 'notice and Severance' 'bonuses and Commissions' 'redundancy' 'apportionment of Liability']
['industrial Law' 'employment Law'] ['unfair Contracts' 'notice and Severance' 'bonuses and Commissions' 'redundancy' 'apportionment of Liability']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Judgment After Hearing (including Ex Parte Against 4th Respondent, Settled in Part Against 3rd Respondent, Discontinued Against 1st and 2nd Respondents)

Legal Issues

  1. 1 ['Whether the employment contract was unfair in terms and operation under s 106 Industrial Relations Act 1996' 'Whether the $28,000 paid to the applicant was a loan or an advance on bonus/commission' 'Entitlement to notice and severance pay on termination' 'Appropriate apportionment of liability among individual respondents']

Ratio Decidendi

The contract was unfair in not providing reasonable notice and severance for the CEO, and in unilaterally re-characterising an advance bonus/commission as a loan. The employment contract is declared void ab initio except for payments already made. Applicant entitled to 9 months' remuneration (including salary and estimated bonus) less what was paid, and $2,000 in expenses. 70% liability apportioned to the fourth respondent given control and benefit derived. Interest and costs awarded accordingly.

Court Disposition

Application dismissed against third respondent by consent (with costs); orders made against fourth respondent (liability and payment of compensation, expenses, interest, and costs).

Orders

  • ['Application against third respondent dismissed by consent.' "Third respondent to pay applicant's costs in sum of $27,500, with payment schedule and security for default." 'Applicant releases and discharges third respondent from all other claims relating to employment and proceedings (other than costs).' 'Contract...