Burks v Zanmarl Pty Limited [2000] NSWIRComm 167

Burks v Zanmarl Pty Limited [2000] NSWIRComm 167

The respondents were justified in terminating the applicant's employment during the probationary period because the applicant did not possess or demonstrate the hands-on supermarket management skills required, and the three month probationary period and two week notice term were not themselves unfair. However, because it was not a real option for the applicant to work out the notice period, fairness required payment of two weeks pay in lieu of notice; the absence of such a provision caused the employment contract to be unfair under s 105(a), warranting variation ab initio and monetary relief under s 106(5), including limited storage costs flowing from the unfairness. Russell Brian Winn...

Jurisdiction
Australia
Judgment Date
25 August 2000
Procedural Posture
Application Under Section 106 of the Industrial Relations Act 1996 / Judgment After Hearing
Outcome
Application partly allowed; contract varied ab initio and monetary orders proposed against both respondents jointly and severally.
Legal Topics
['unfair Contract' 'probationary Employment' 'termination of Employment' 'payment in Lieu of Notice' 'redundancy' 'orders Against Non Parties to Contract']
['industrial Relations' 'employment Law' 'contract Law'] ['unfair Contract' 'probationary Employment' 'termination of Employment' 'payment in Lieu of Notice' 'redundancy' 'orders Against Non Parties to Contract']

Case Brief

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Procedural Posture

Application Under Section 106 of the Industrial Relations Act 1996 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the contract of employment was unfair, harsh or unconscionable under s 105(a) of the Industrial Relations Act 1996.' "Whether termination of the applicant's employment after four working days was unfair or without proper reason." 'Whether the three month probationary period and two week notice term were unfair.' 'Whether the absence of a provision for payment in lieu of notice rendered the contract unfair.' 'Whether the termination was in the nature of redundancy.' 'Whether Russell Brian Winn was a proper respondent against whom monetary orders could be made.' 'What monetary orders, if any, should be made under s 106(5).']

Ratio Decidendi

The respondents were justified in terminating the applicant's employment during the probationary period because the applicant did not possess or demonstrate the hands-on supermarket management skills required, and the three month probationary period and two week notice term were not themselves unfair. However, because it was not a real option for the applicant to work out the notice period, fairness required payment of two weeks pay in lieu of notice; the absence of such a provision caused the employment contract to be unfair under s 105(a), warranting variation ab initio and monetary relief under s 106(5), including limited storage costs flowing from the unfairness. Russell Brian Winn...

Court Disposition

Application partly allowed; contract varied ab initio and monetary orders proposed against both respondents jointly and severally.

Orders

  • ['The contract made between the applicant and the first respondent as embodied in the letter dated 15 June 1997 on the letterhead of Bourke Welcome-Mart Supermarket and signed by Russell Winn is varied ab initio to provide for two weeks pay in lieu of notice.' 'Zanmarl Pty Limited and Russell Brian Winn shall pay to...