Preston v Fernbran Constructions Pty Ltd [1997] IRCA 293

Preston v Fernbran Constructions Pty Ltd [1997] IRCA 293

The applicant was not a probationary employee because the alleged probationary or self-funding period was not clear, unambiguous or capable of definition. However, the Court preferred the respondent's evidence and found that the applicant resigned after his request for increased remuneration was refused, so there was no termination at the initiative of the respondent. The breach of contract claim failed because the asserted implied terms and ANIP commission entitlement were not supported by the evidence or the contract, and the Trade Practices Act claim failed because no relevant representation or reliance was proved. The application was therefore dismissed.

Jurisdiction
Australia
Judgment Date
14 November 1997
Procedural Posture
Application for Compensation for Unfair Dismissal, With Associated Claims for Breach of Contract and Relief Under the Trade Practices Act 1974 / Judgment After Hearing
Outcome
Application dismissed.
Legal Topics
['termination of Employment' 'probationary Employment' 'employee or Independent Contractor' 'resignation or Termination at the Initiative of the Employer' 'breach of Contract' 'misleading and Deceptive Conduct' 'associated Jurisdiction']
['industrial Law' 'employment Law' 'contract Law' 'trade Practices' 'jurisdiction'] ['termination of Employment' 'probationary Employment' 'employee or Independent Contractor' 'resignation or Termination at the Initiative of the Employer' 'breach of Contract' 'misleading and Deceptive Conduct' 'associated Jurisdiction']

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Procedural Posture

Application for Compensation for Unfair Dismissal, With Associated Claims for Breach of Contract and Relief Under the Trade Practices Act 1974 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the applicant was a probationary employee when his employment ceased' 'Whether the applicant was an employee or an independent contractor' 'Whether the applicant resigned or was terminated at the initiative of the respondent' 'Whether the applicant had an enforceable three-year contract and entitlement to salary, commission and expenses, including in relation to the ANIP project' 'Whether the respondent made misleading or deceptive representations under the Trade Practices Act 1974' 'Whether the Court could deal with the associated Trade Practices Act claim']

Ratio Decidendi

The applicant was not a probationary employee because the alleged probationary or self-funding period was not clear, unambiguous or capable of definition. However, the Court preferred the respondent's evidence and found that the applicant resigned after his request for increased remuneration was refused, so there was no termination at the initiative of the respondent. The breach of contract claim failed because the asserted implied terms and ANIP commission entitlement were not supported by the evidence or the contract, and the Trade Practices Act claim failed because no relevant representation or reliance was proved. The application was therefore dismissed.

Court Disposition

Application dismissed.

Orders

  • ['The application of Stephen Preston be dismissed.']