Ballard v Incoll Management Pty Limited

1 This is an application for leave to appeal and, subject to leave being granted, an appeal from the judgments of the Honourable Justice Boland in proceedings pursuant to s 106 of the Industrial Relations Act 1996, the judgments being reported as Ballard v Incoll Management [2001] NSWIRComm 181, and Ballard v Incoll Management (No 2) [2001] NSWIRComm 217. The first of those judgments, which is the primary judgment and the focus of the proceedings before the Court today, was delivered on 22 August 2001. 2 Each party has filed elaborate and extensive written submissions on the issues of leave to appeal and the appeal proper and has been given the opportunity to develop their submissions orally. 3 It is clear, on the basis of the helpful assistance thus provided respectively by the appellant, Mr Richard Ballard, who has represented himself, and from Mr R Reitano of counsel, who has appeared for the respondent, that this appeal has similarities to another appeal heard recently by a Full Bench of this Court; that is the appeal in Pacific Health Care (Australia) Limited v AHI Health Care Systems Pty Limited [2001] NSWIRComm 297, judgment in which was delivered on 19 November 2001. In the present case the trial judge delivered a detailed judgment which shows careful consideration and evaluation of the evidence and of the issues before the Court and made factual findings which were relevantly open to his Honour and, on the basis of those findings, granted relief as follows: 95. I have concluded that the contract of employment between the respondent and the applicant was unfair in four respects, namely: 1) That the respondent failed to fairly and adequately convey the terms of the employment offer to the applicant. 2) That the respondent required the applicant to perform work outside the terms of the contract of employment.

That to the extent the respondent terminated the applicant's employment for reasons related to the applicant's conduct or work performance, it was unfair. Alternatively, if there was substance in the respondent's contentions relating to the applicant's conduct and work performance and these contentions constituted a reason for terminating the applicant's employment, the applicant was not accorded procedural fairness. 96. In light of these findings the question is whether the Court should exercise its discretion to avoid or vary the contract of employment. In my opinion it is appropriate to do so. I propose to vary the contract of employment to provide that termination of the applicant's employment shall not be harsh, unjust or unreasonable. I propose to further vary the contract to provide that the applicant shall not be required to undertake work in respect of which there is no obligation to perform under the terms of the contract of employment unless the applicant is consulted beforehand about the nature of such work and its duration and that he has consented to undertake the work on terms that are agreed. 97. In his amended summons for relief, the applicant sought an amount of $11,100 representing the value of the work performed by the applicant for the respondent, less the amount received by the applicant. The applicant also sought payment in lieu of a notice period of 12 months. Insofar as the claim for $11,100 is concerned there is simply no proper basis on which I could make such an order. The fact that the applicant may have received a salary of $80,000 per annum in his previous employment cannot mean that he should automatically receive the same amount in the employ of the respondent. There was no comparison made of the work the applicant undertook with Shell (his previous employer) or with Lend Lease (the applicant's subsequent employer). Nor were there any other relevant comparisons made that would allow me to come to any proper conclusions about whether or not the level of salary paid by the respondent was inappropriate having regard to the work done. The claim is, therefore, refused. 98. The other claim was for 12 months' pay in lieu of notice. In this respect I note that the applicant was a reasonably young man earning $60,000 per annum who had been employed by the respondent for only four months. If one were to apply the usual tests as to what might be an appropriate notice period, it is clear that the applicant could not justify a payment of 12 months in lieu of notice. However, as a consequence of the respondent's failure to make a realistic assessment of whether a project manager's position was or would become available to the applicant in a reasonable space of time and to advise the applicant accordingly, the applicant continued in the employ of the respondent hoping that the project manager's position would materialise. The applicant was also concerned that if he resigned from his employment with the respondent he would incur a loss because he had agreed to accept a rate of pay lower than that he would have received elsewhere in the market in the belief he would eventually be placed in a project manager's position on a salary of between $70,000 and $80,000 per annum. By remaining with the respondent, the applicant's employment was terminated at a time of the year that would have made it most difficult to find other employment in the construction industry. Moreover, the reasons relied upon by the respondent in terminating the applicant's employment included reasons that were either not supported by the evidence or, alternatively, if there was some substance in the allegations relating to the applicant's work performance and conduct towards other staff and clients, the applicant was not accorded procedural fairness. 99. Section 106(5) of the Act provides that any money order made in connection with any contract declared wholly or partly void, or varied, shall be what the Commission considers just in the circumstances of the case. It is my considered view that the applicant should receive three months' notice or three months' pay in lieu of notice. Given that the respondent has already received one month's payment in lieu of notice, the applicant shall receive a further payment of two months in lieu of notice. 100. The fact that I have determined that the applicant is entitled to an additional two months' pay in lieu of notice should not be regarded as an endorsement of a new standard of payment in lieu of notice for an employee with only a short period of employment, i.e., four months. The additional two months' pay is to remedy unfairness in this individual case. 101. I note that following endeavours to find new employment the applicant was able to do so in May 1998. The question of mitigation does not, therefore, arise. 4 His Honour then made orders accordingly; see paragraph 102 of the judgment. 5 We consider that, in the circumstances before his Honour, these were findings and involved exercises of discretion which were open to the trial judge. We do not discern any error of principle in his Honour's approach or that the appellant has demonstrated the existence of any such error. 6 In the light of the statutory mandate and relevant legal principles which are usefully but shortly set out in the judgment earlier referred to, that is the judgment in Pacific Health Care, particularly in paragraphs [3] to [6] thereof, principles which bind this Court sitting on appeal at Full Bench level, there is no alternative but to decline leave to appeal pursuant to the provisions of s 188 of the Industrial Relations Act and to make orders accordingly. 7 The appropriate orders therefore are as follows: 1. Leave to appeal declined. 2. Appeal dismissed. 8 [The Court, having heard the parties as to costs and the lifting of the stay, made the following additional orders:] 3. The appellant shall pay the respondent's costs of the appeal in a sum as agreed or in default of agreement as assessed. 4. The stay of the orders of his Honour the trial judge which was made on 23 October 2001 is hereby lifted. 9 These proceedings are concluded.

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Judgment (11 paragraphs)

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Cases Cited (3)