Steven Squires v Powerlan Ltd and anor. [2005] NSWIRComm 354

Steven Squires v Powerlan Ltd and anor. [2005] NSWIRComm 354

The contract was unfair because, in the circumstances of Mr Squires' transferred senior employment, the requirement that he remain for three years, the near autonomous continuation of the former business within Powerlan, his age, remuneration arrangements, and the seven months remaining in the three-year period, it failed to provide adequate redundancy notice and severance pay. Fairness required recognition of prior service for redundancy and long service leave purposes. The 2 August 2002 letter was preferably construed as termination with salary in lieu of notice and little or no further work to perform; even if it gave actual notice, Mr Squires' Cardlink employment did not amount to...

Jurisdiction
Australia
Judgment Date
05 October 2005
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 Alleging Unfair Contract / Judgment Following Hearing; Short Minutes of Order to Be Prepared
Outcome
Application upheld in part; the contract was found unfair and to be varied to provide adequate notice and severance pay on redundancy, with money orders to be made in favour of Mr Squires after short minutes were filed.
Legal Topics
['unfair Contract' 'redundancy' 'notice of Termination' 'severance Pay' 'long Service Leave' 'annual Leave' 'mitigation' 'alleged Misconduct or Repudiation of Employment Contract' 'transfer of Employment']
['industrial Relations' 'employment Law' 'contract Law'] ['unfair Contract' 'redundancy' 'notice of Termination' 'severance Pay' 'long Service Leave' 'annual Leave' 'mitigation' 'alleged Misconduct or Repudiation of Employment Contract' 'transfer of Employment']

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 Alleging Unfair Contract / Judgment Following Hearing; Short Minutes of Order to Be Prepared

Legal Issues

  1. 1 ['Whether the employment contract was unfair under s 106 of the Industrial Relations Act 1996 because it made no provision for severance payments and inadequate provision for notice in circumstances of redundancy.' 'Whether prior service with Centrelink and Phase Shift should be credited in calculating redundancy-related entitlements and long service leave.' "Whether Mr Squires' employment with Cardlink during the asserted notice period amounted to misconduct, repudiation, or breach of contract disentitling him to redundancy-related payments." 'Whether mitigation principles required any reduction in the notice component.' 'Whether Mr Squires was entitled to pro rata long service leave, annual leave and reimbursement of mobile telephone expenses.']

Ratio Decidendi

The contract was unfair because, in the circumstances of Mr Squires' transferred senior employment, the requirement that he remain for three years, the near autonomous continuation of the former business within Powerlan, his age, remuneration arrangements, and the seven months remaining in the three-year period, it failed to provide adequate redundancy notice and severance pay. Fairness required recognition of prior service for redundancy and long service leave purposes. The 2 August 2002 letter was preferably construed as termination with salary in lieu of notice and little or no further work to perform; even if it gave actual notice, Mr Squires' Cardlink employment did not amount to...

Court Disposition

Application upheld in part; the contract was found unfair and to be varied to provide adequate notice and severance pay on redundancy, with money orders to be made in favour of Mr Squires after short minutes were filed.

Orders

  • ["The contract should be varied to provide for four months' notice for redundancy after applying mitigation, with credit for the one month already paid by the respondents." 'The contract should provide severance pay of 17.5 weeks.' 'Mr Squires is entitled to pro rata long service leave calculated by recognising 5.5...