T D Preece & Co. Pty Ltd v Murton [2007] NSWIRComm 130

T D Preece & Co. Pty Ltd v Murton [2007] NSWIRComm 130

The contract was or became unfair because it permitted the appellant to act unfairly, harshly or unconscionably by summarily terminating the respondent on grounds that were not made out and by failing to apply fair termination procedures. The alleged poor performance was not substantiated, there were no fair warnings or counselling, and the contract did not provide protections such as investigation, consultation and an opportunity to answer allegations. The trial judge erred insofar as the variation focused on payment in lieu of notice rather than remedying the absence of fair termination procedures, so order (2) was quashed and substituted, while two months' pay remained the compensation...

Jurisdiction
Australia
Judgment Date
28 June 2007
Procedural Posture
Application for Leave to Appeal and Appeal Concerning an Unfair Contract Under the Industrial Relations Act 1996 / Full Bench Appeal From a Judgment of Justice Backman Given on 23 November 2006 in Matter No IRC 6239 of 2002
Outcome
Leave to appeal granted; appeal upheld to the extent determined; order (2) at first instance quashed and substituted; appellant ordered to pay respondent's costs; stay dissolved.
Legal Topics
['unfair Contract' 'summary Termination' 'implied Term of Reasonable Notice' 'procedural Fairness in Termination' 'compensation Under S 106(5) of the Industrial Relations Act 1996' 'leave to Appeal']
['industrial Relations' 'employment Law' 'contract Law'] ['unfair Contract' 'summary Termination' 'implied Term of Reasonable Notice' 'procedural Fairness in Termination' 'compensation Under S 106(5) of the Industrial Relations Act 1996' 'leave to Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning an Unfair Contract Under the Industrial Relations Act 1996 / Full Bench Appeal From a Judgment of Justice Backman Given on 23 November 2006 in Matter No IRC 6239 of 2002

Legal Issues

  1. 1 ['Whether the absence of express termination provisions made the employment contract unfair where a common law term of reasonable notice may be implied.' "Whether the summary termination was merely a breach of contract so as to preclude the Commission's jurisdiction under the authorities relied on by the appellant." 'Whether the trial judge erred by failing to identify the terms of the contract or arrangement before finding unfairness.' 'Whether the contract was or became unfair because it permitted summary termination without fair procedures on grounds not made out.' 'Whether the orders at first instance should be varied.']

Ratio Decidendi

The contract was or became unfair because it permitted the appellant to act unfairly, harshly or unconscionably by summarily terminating the respondent on grounds that were not made out and by failing to apply fair termination procedures. The alleged poor performance was not substantiated, there were no fair warnings or counselling, and the contract did not provide protections such as investigation, consultation and an opportunity to answer allegations. The trial judge erred insofar as the variation focused on payment in lieu of notice rather than remedying the absence of fair termination procedures, so order (2) was quashed and substituted, while two months' pay remained the compensation...

Court Disposition

Leave to appeal granted; appeal upheld to the extent determined; order (2) at first instance quashed and substituted; appellant ordered to pay respondent's costs; stay dissolved.

Orders

  • ['Leave to appeal is granted.' 'The appeal is upheld to the extent determined in this decision.' 'Order (2) of the orders made by Backman J in Matter No IRC 6239 of 2002 is quashed and a substituted order varying the contract ab initio is made.' "The substituted order provides that the contract shall not be...