Visscher v The Honourable President Justice Giudice [2009] HCA 34

Visscher v The Honourable President Justice Giudice [2009] HCA 34

The rescission of Mr Visscher’s promotion in 2001 did not automatically terminate his contract as Chief Officer; termination required acceptance by Mr Visscher. The Certified Agreement’s attached grading list was not determinative of contractual status at earlier dates. The Australian Industrial Relations Commission and Full Bench failed to make the necessary findings on the terms on which Mr Visscher was employed in 2004, constituting jurisdictional error, and the matter must be remitted for determinations as to whether there was termination at the initiative of the employer or a demotion within the meaning of the Act.

Parties
Applicant: Timothy Visscher; Respondents: The Honourable President Justice Giudice & Ors; Employer (second Respondent): Teekay Shipping (Australia) Pty Limited
Jurisdiction
Australia
Judgment Date
02 September 2009
Procedural Posture
Appeal / Appeal From Full Court of the Federal Court of Australia to High Court – Special Leave to Appeal
Outcome
Special leave to appeal granted; appeal allowed; Full Court orders set aside; remitted to Australian Industrial Relations Commission for determination in accordance with law.
Legal Topics
Termination of Employment, Repudiation of Contract, Demotion, Certified Agreement, Jurisdictional Error, Reinstatement
Employment Law Industrial Law Administrative Law Contract Law Termination of Employment Repudiation of Contract Demotion Certified Agreement +2 more

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Parties

Timothy Visscher

Applicant

The Honourable President Justice Giudice & Ors

Respondents

Teekay Shipping (Australia) Pty Limited

Employer (second Respondent)

Procedural Posture

Appeal / Appeal From Full Court of the Federal Court of Australia to High Court – Special Leave to Appeal

Legal Issues

  1. 1 Whether Mr Visscher's employment as Chief Officer was terminated at the initiative of his employer
  2. 2 Whether the rescission of Mr Visscher's promotion by the employer was effective to terminate the contract of employment
  3. 3 Whether acceptance of repudiation by employee is required to terminate contract of employment

Ratio Decidendi

The rescission of Mr Visscher’s promotion in 2001 did not automatically terminate his contract as Chief Officer; termination required acceptance by Mr Visscher. The Certified Agreement’s attached grading list was not determinative of contractual status at earlier dates. The Australian Industrial Relations Commission and Full Bench failed to make the necessary findings on the terms on which Mr Visscher was employed in 2004, constituting jurisdictional error, and the matter must be remitted for determinations as to whether there was termination at the initiative of the employer or a demotion within the meaning of the Act.

Court Disposition

Special leave to appeal granted; appeal allowed; Full Court orders set aside; remitted to Australian Industrial Relations Commission for determination in accordance with law.

Orders

  • A writ of certiorari issue to the Australian Industrial Relations Commission quashing: (i) the Full Bench decision dated 9 October 2006 in matter C2006/132 and (ii) the decision of Commissioner Redmond dated 5 May 2006 in matter U2004/2387.
  • A writ of mandamus issue to the Australian Industrial Relations Commission directing it to hear and determine matter U2004/2387 in accordance with law.