Court of Appeal (Qld)|2002-08-09|Before: McMurdo P, White and Holmes JJSeparate reasons for, judgment of each member of the Court, each concurring as to the orders, made
McMurdo P, White and Holmes JJSeparate reasons for, judgment of each member of the Court, each concurring as to the orders, made
Catchwords
EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND
LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – DURATION
AND TERMINATION OF
EMPLOYMENT – TERMINABLE ON REASONABLE NOTICE – where respondent,
Source
Original judgment source is linked above.
Catchwords
EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES ANDLIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – DURATIONAND TERMINATION OFEMPLOYMENT – TERMINABLE ON REASONABLE NOTICE – where respondent,whose employment with the appellantwas terminated, was awarded damages in lieuof nine months notice of termination – whether determining period ofreasonablenotice was an exercise of discretion or a question offactEMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES ANDLIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – DURATIONAND TERMINATION OFEMPLOYMENT – TERMINABLE ON REASONABLE NOTICE – where letter ofemployment failed to stipulate periodof notice to be given to respondent upontermination of contract of employment – whether what is reasonable shouldbe determinedby application of a presumption or reciprocity – whether theperiod of notice specified as required from employee should equallybe regarded
as appropriate upon termination by the employerEMPLOYMENT LAW –
THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER
AND EMPLOYEE – DURATION
AND TERMINATION OF EMPLOYMENT – TERMINABLE
ON REASONABLE NOTICE – whether financial circumstances of the employer
should
be taken into account when determining what constitutes reasonable
noticeEMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES
AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – REMUNERATION
–
MATTERS AFFECTING RIGHT – TERMINATION OF CONTRACT – whether damages
award should have included the value of the
contribution the appellant would
have made to the respondent’s superannuation over the period of notice
– whether, upon
entry of the contract of employment, the appellant assumed
a legal obligation imposed by the statute to pay superannuation –
whether
respondent’s loss of that benefit for the period of notice arises directly
from the appellant’s breach of contract
in failing to give the required
notice EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES
AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – REMUNERATION
–
MATTERS AFFECTING RIGHT – TERMINATION OF CONTRACT – where no
contractual provision for leave loading –
whether offsetting allowance for
payments made by the appellant to the respondent, including the
respondent’s accrued entitlement
to annual leave, should have been
madeDistrict Court Act 1967 (Qld), s 118(3)Uniform Civil
Procedure Rules r 361Aoraki Corporation Ltd v McGavin [1998] NZCA 88
[1998]
3 NZLR 276, consideredBohemier v Storwall International Inc
(1983) 40 OR (2d) 264, consideredBrookton Holdings Pty Ltd (No. V) v
Kara Kar Holdings Pty Ltd (1994) 57 IR 288, appliedCharta Packaging
Limited v Howard & Ors (2000) 6 NZELC 75-517, consideredColonial
Sugar Refining Company Limited v Irvint [1905] AC 369,
consideredCommonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 54,
consideredEdward Keller (Australia) Pty Ltd v Hennelly (1990) 35 IR
464, consideredHelbig v Oxford Warehousing Ltd (1985) 51 OR
(2nd) 421, consideredHouse v The King (1936) 55 CLR 499,
consideredIrons v Merchant Capital Ltd (1994) 116 FLR 204,
consideredMcClelland v Northern Ireland General Health Services Board
[1957] 2 All ER 129, followedNorbis v Norbis [1986] HCA 17
(1986) 161 CLR 513,
followedNSW Cancer Council v Safarty (1992) 28 NSWLR 68,
consideredOpera House Investment Pty Ltd v Devon Buildings Pty Ltd
[1936] HCA 14
(1936) 55 CLR 110, appliedQuinn v Jack Chia (Australia) Limited
(1972) 43 IR 91, consideredRankin v Marine Power International
(2000) 107 IR 117, appliedRobinson v Harman [1848] EngR 135
(1848) 1 Ex. 850,
appliedSunskill Investments Pty Ltd v Townsville Services Pty Ltd
[1991] 2 Qd R 210, consideredThorpe v South Australian National Football
League (1974) 10 SASR 17, considered
Judgment (25 paragraphs)
[1]
EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - DURATION AND TERMINATION OF EMPLOYMENT - TERMINABLE ON REASONABLE NOTICE - where respondent, whose employment with the appellant was terminated, was awarded damages in lieu of nine months notice of termination - whether determining period of reasonable notice was an exercise of discretion or a question of fact
[2]
EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - DURATION AND TERMINATION OF EMPLOYMENT - TERMINABLE ON REASONABLE NOTICE - where letter of employment failed to stipulate period of notice to be given to respondent upon termination of contract of employment - whether what is reasonable should be determined by application of a presumption or reciprocity - whether the period of notice specified as required from employee should equally be regarded as appropriate upon termination by the employer
[3]
EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - DURATION AND TERMINATION OF EMPLOYMENT - TERMINABLE ON REASONABLE NOTICE - whether financial circumstances of the employer should be taken into account when determining what constitutes reasonable notice
[4]
EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - REMUNERATION - MATTERS AFFECTING RIGHT - TERMINATION OF CONTRACT - whether damages award should have included the value of the contribution the appellant would have made to the respondent's superannuation over the period of notice - whether, upon entry of the contract of employment, the appellant assumed a legal obligation imposed by the statute to pay superannuation - whether respondent's loss of that benefit for the period of notice arises directly from the appellant's breach of contract in failing to give the required notice
[5]
EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - REMUNERATION - MATTERS AFFECTING RIGHT - TERMINATION OF CONTRACT - where no contractual provision for leave loading - whether offsetting allowance for payments made by the appellant to the respondent, including the respondent's accrued entitlement to annual leave, should have been made