Thompson v Taira (T&T) Pty Limited [1995] IRCA 432

Thompson v Taira (T&T) Pty Limited [1995] IRCA 432

The applicant's breach of the cash handling procedure warranted a warning but, viewed objectively, was not serious enough to justify dismissal: there was no dishonesty, no loss, the error was readily detectable, and the respondent overreacted. The respondent also failed to give the applicant an opportunity to defend...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
13 July 1995
Procedural Posture
Application Under Section 170 EA of the Industrial Relations Act 1988 Alleging Unlawful Termination of Employment and Seeking Reinstatement / Reasons for Judgment and Orders
Outcome
Application allowed; termination held unlawful; reinstatement and lost remuneration ordered.
Legal Topics
['unlawful Termination' 'natural Justice' 'procedural Fairness' 'valid Reason for Termination' 'warnings Before Termination' 'reinstatement' 'lost Remuneration' 'social Security Payments' 'ilo Termination of Employment Recommendation, 1982']
['industrial Law' 'employment Law' 'international Law'] ['unlawful Termination' 'natural Justice' 'procedural Fairness' 'valid Reason for Termination' 'warnings Before Termination' 'reinstatement' 'lost Remuneration' 'social Security Payments' 'ilo Termination of Employment Recommendation, 1982']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Application Under Section 170 EA of the Industrial Relations Act 1988 Alleging Unlawful Termination of Employment and Seeking Reinstatement / Reasons for Judgment and Orders

Legal Issues

  1. 1 ["Whether there was a valid reason connected with the applicant's conduct to terminate his employment." 'Whether the applicant was given an opportunity to defend himself against allegations before termination as required by section 170DC of the Industrial Relations Act 1988.' 'Whether the termination was harsh, unjust or unreasonable within section 170DE(2) of the Industrial Relations Act 1988.' 'What regard should be had to the ILO Termination of Employment Recommendation, 1982 in construing Part VIA, Division 3 of the Industrial Relations Act 1988.' 'Whether reinstatement was impracticable under section 170EE of the Industrial Relations Act 1988.' 'Whether social security payments received by the applicant should be deducted from lost remuneration.']

Ratio Decidendi

The applicant's breach of the cash handling procedure warranted a warning but, viewed objectively, was not serious enough to justify dismissal: there was no dishonesty, no loss, the error was readily detectable, and the respondent overreacted. The respondent also failed to give the applicant an opportunity to defend himself before deciding to dismiss him, contrary to section 170DC, and breached its own written warnings policy. Having regard to section 170CA and the ILO Termination of Employment Recommendation, 1982, the absence of a written warning where practicable was a significant factor supporting the conclusion that the termination was unjust and unreasonable within section 170DE(2)....

Court Disposition

Application allowed; termination held unlawful; reinstatement and lost remuneration ordered.

Orders

  • ['The applicant be reinstated by the respondent by being reappointed forthwith to the position in which he was employed immediately before the termination of his employment.' 'The respondent, within 21 days of today, pay to the applicant the sum of $9046.57, being the remuneration lost by the applicant because of...