Phillip Brunt v Carlton and United Beverages Limited & Fosters People Limited

Industrial Relations Commission (NSW)|2007-06-25|Before: Sams DP, Schmidt J

The applicant maintained his position while the respondent improved on its offer, again albeit by a small margin. In other words, it could not be said that the respondent had taken a firm, steadfast or immovable position. It would seem that the negotiations continued to remain 'fluid'.

The offers of the applicant, for reasons which I completely understand, were couched in terms of redundancy in circumstances where the respondent's position was that the termination of employment was for misconduct. It had been prepared to accept a resignation, but it was entitled to be concerned that to elevate the termination to a redundancy (although it recognised redundancy later), would be to accept that the applicant had been completely exonerated of any unacceptable behaviour. That was certainly not how the termination of employment later came to be viewed by the Commission, either at first instance, on appeal and on remittal.

In my opinion, the respondent was justified in having reservations as to the applicant's conduct. As it turned out, its reservations were vindicated when it was learnt that the December 2004 incident was not the first occasion the applicant had been drinking company product on the job. In addition, the applicant was found to be less than truthful in his letter to the General Manager shortly after dismissal, in which he said he had sought counselling (for his drinking problem) when plainly he had not. 58 I find the respondent's rejections of these offers in March and April 2005 as not demonstrating an unreasonable failure to settle the claim. Nor do I consider the respondent's conduct during the relevant period was such as to evince an unwillingness on its part to settle the claim. 59 To the extent that there is any reliance on the offers made subsequent to the appeal decision and prior to the remittal proceedings, I also do not consider that the rejection of the applicant's offer was such as to enliven the Commission's jurisdiction. Conclusions 60 For the reasons herein expressed I do not consider that the applicant has established the Commission's jurisdiction as to costs as required by s 181(2)(c) of the Act. In light of this conclusion, it is unnecessary for me to consider the application for indemnity costs. The notice of motion filed by the applicant on 13 March 2007 is dismissed. I make no order for costs on the motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Bankstown City Council v Paris (1999) 93 IR 209 Carlton and United Beverages Limited v Phillip Brunt [2007] NSWIRComm 135 Carlton and United Beverages Limited v Phillip Brunt (2005) 147 IR 162 Carlton and United Beverages Limited v Phillip Brunt [2006] NSWIRComm 98 Crump & Ors v Equine Nutrition Systems Pty Ltd t/as Horsepower & Anor (No 2) [2007] NSWSC 25 CASES CITED: Four Sons Pty Ltd v Sakchai Limsiripothong (No 2) (2000) 100 IR 400 Phillip Brunt v Carlton and United Beverages Limited / Foster People Limited [2007] NSWIRComm 17 Phillip Brunt v The Continental Spirits Company [2005] NSWIRComm 1133 Phillips v Industrial Relations Commission of New South Wales (2006) 154 IR 96 Tuholi Pty Ltd v Caltex Australia Petroleum Pty Ltd (2001) 103 IR 329 Young and others v Department of Juvenile Justice [2007] NSWIRComm 142

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