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Brown v Leopard Coachlines Ltd
13 Mar 2007, H Doyle, CA 23/07, (11 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant dismissed for causing collision with co-worker ("X") on same bus route - Personal conflict between applicant and X - On balance of probabilities, applicant and X told to wait at designated point prior to avoid collisions, prior to accident - Disciplinary policy objective in Driver's Manual to "hopefully avoid" dismissal outcome - No opportunity to make submissions understanding dismissal possible outcome of disciplinary interview - No separation between interview and delivery of dismissal decision - No separate submission received about penalty - No opportunity to persuade respondent could be trusted in future - Fair and reasonable employer would have advised dismissal possible - Procedural unfairness - Fair and reasonable employer would not have concluded from evidence collision deliberate or intentional - Open to respondent to conclude accident avoidable if applicant had followed instruction to stop, and applicant at fault - Failure to stop about avoidability and carelessness rather than deliberate failure to followed instruction - Applicant's conduct less serious misconduct in manual, for which in most cases warning appropriate - Conduct did not justify serious misconduct requiring summary dismissal - Dismissal unjustified - Remedies - Contributory conduct 30 percent - BREACH OF CONTRACT - Damages - Respondent claimed applicant breached implied term of employment agreement when disobeyed instruction - Sought damages for costs of repairing buses - Not within contemplation, when collective employment agreement negotiated, employees personally liable for damage - Counterclaim dismissed - Loss of revenue claim abandoned - Bus driver
Result: Application granted ; Reimbursement of lost wages (Quantum to be determined less 30%)(Three months) ; Compensation for humiliation etc ($8,000 reduced to $5,600) ; Application dismissed (Counterclaim) ; Costs reserved
Douglas v Harmes Sharley International Ltd
1 Feb 2007, L Robinson, AA 24/07, (6 pages)
COMPLIANCE ORDER - Applicant sought compliance with record of settlement - Authority satisfied respondent failed to comply - Applicant's calculation of sum outstanding accepted - Compliance ordered - Interest awarded on outstanding sum - PENALTY - Respondent deliberately withheld payment - Not entitled to impose conditions on performance of record of settlement - No justification for failure to provide reference - Respondent's correspondence aimed at frustrating performance - Wilfully breached settlement - Penalty warranted - BREACH OF CONTRACT - Applicant also sought damages for non-economic loss - Not appropriate to deal with claim on papers alone - Counsel to confirm appropriate arrangements with Authority
Result: Compliance ordered ; Interest (9%) ; Application granted (Penalty) ; Penalty ($3,000)($1,000 payable to Crown)($2,000 payable to applicant) ; Application reserved (Breach of Contract) ; Orders accordingly ; Costs reserved
Rarere v Electrotech Controls Ltd
2 Feb 2007, GJ Wood, WA 19/07, (11 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Constructive dismissal - Applicant claimed unjustifiably dismissed and/or disadvantaged after declined to continue as casual employee when completed apprenticeship - Applicant originally employed under several fixed term agreements - No legitimate expectation of ongoing employment once apprenticeship concluded - Employment agreement provided employment automatically terminated after 8,000 hours or qualification completed - Applicant completed 8,000 hours but employment continued without comment - When applicant completed qualification respondent gave notice and offered her casual position until passed registration exam - Applicant went on sick leave and never returned - Once hours completed employment became permanent - Entitled to ongoing employment - Reasonable for applicant to decline casual employment - Constructive dismissal - Could also be unjustified disadvantage as security of employment wrongly diminished - BREACH OF CONTRACT - Respondent not responsible for CD applicant loaned to co-worker - Applicant not entitled to travel allowance - Employment agreement provided subsidised medical insurance after three months employment - Applicant not given benefit for two years - Sought damages to cover medical claims - Loss direct result of respondent's failure - Claim offset against contributions applicant required to make - Penalty not appropriate - Electrical apprentice
Result: Application granted ; Reimbursement of lost wages ($8,482.15)(13 weeks) ; Compensation for humiliation etc ($7,000) ; Damages ($939.92) ; Costs reserved
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