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Farley v Nugget Point Resort Ltd
20 Nov 2006, H Doyle, CA 158/06, (18 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Resignation attributable to actions of respondent - Whether course of conduct with dominant purpose of coercing applicant to resign - Disciplinary meeting held over allegation applicant misused leave - Director advised applicant to consider matter over and move on - Applicant read draft of letter directors intended to give him on computer - Likely accessed director's personal folder - Applicant invited to further disciplinary meeting - Advised unable to attend as on stress leave - Start of email exchange - Communications from director not designed to maintain productive relationship - Director advised had spoken to applicant's doctor and police involved - When stress leave ended director advised not required to work - Resigned later that week - Emails unfair in terms of process and demonstrated lack of understanding of boundaries of employment relationship and applicant's right to privacy - Applicant young and emails designed to concern him - Behaviour capable of seriously damaging parties' relationship - Potential for applicant's relationship with doctor to be seriously undermined - Not fair to reopen investigation - Failure to continue to pay wages and subsequent communications suggested element of predetermination - Emails could be seen as having deliberate and dominant purpose of attempting to coerce applicant to resign - Respondent breached obligation not to act in manner likely to destroy trust and confidence between parties - Breach of contract and good faith as failed to pay applicant while on stress leave yet expected him to attend disciplinary meeting - Also breaches as failed to explain reasons for stopping payment when asked - Breaches serious and so undermining of employment relationship applicant entitled to treat contract as repudiated and resignation reasonably foreseeable - Fair and reasonable employer would have considered warning - Constructive dismissal - Remedies - Unlikely employment would have continued much longer - Authority had regard to notice period when setting lost wages - Applicant to bear some responsibility for police becoming involved - No compensation for police involvement or humiliation resulting from reading draft letter - BREACH OF CONTRACT - Counterclaim - Applicant breached obligations of trust and confidence by accessing director's folder without authorisation - Computer expert's charges were loss suffered as result of breach - However, putting allegation to applicant may have made expert unnecessary - Specialist advice not contemplated by parties as probable result of breach when employment agreement made - Respondent not entitled to recover damages - Manager
Result: Application granted (Unjustified dismissal) ; Reimbursement of lost wages (Four weeks) ; Compensation for humiliation etc ($10,000) ; Arrears of holiday pay (Half a lieu day) ; (One day sick leave) ; Application granted in part (Counterclaim) ; Costs reserved
Jose v Barter Exchange Ltd t/a Victoria Motor Services
15 Dec 2006, P Stapp, WA 176/06, (17 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages, holiday pay and other monies owed under alleged employment agreement - Credibility finding in favour of respondent - Authority satisfied terms and conditions of employment not represented by letter - Claims for accommodation and airfares not made out - Deductions by respondent breached Wages Protection Act 1983 - However, respondent reasonably believed had authority given applicant's complicity - Final pay and holiday pay owing - DAMAGES - Applicant's claim for damages misconceived and without sufficient details and support - COUNTERCLAIM - BREACH OF CONTRACT - Applicant resigned without notice - Reasonable notice would have been two weeks - No award for damages as no direct evidence of loss - PENALTY - Deliberate failure to give reasonable notice - Penalty not raised in statement in reply - Given lack of proper notice and quasi criminal nature of penalties Authority declined to impose penalty on applicant - RECOVERY OF MONIES - Respondent sought to recover money for parts and tools applicant bought on account during employment - Applicant denied sums owed - Both parties denied having items - Amounts directly related to employment - Applicant ordered to pay entire sum claimed and to reimburse respondent cost of towing away his car - Sums to be offset - Mechanic
Result: Application granted (Arrears) ; Arrears of wages and holiday pay ($1,296.05) ; Application dismissed (Damages) ; Counterclaim granted (Recovery of monies) ; Monies owed ($821.17) ; Counterclaim dismissed (Breach of contract, penalty) ; Costs reserved
Rooney Earthmoving Ltd v McTague & Ors
16 Nov 2006, P Montgomery, CA 156/06, (13 pages)
BREACH OF CONTRACT - Applicant (REL) sought damages from three individual employees ("T"), ("W") and ("B") for alleged breaches of contractual terms - REL claimed first respondent ("T") established company (BMW) in competition with REL while still employed by REL - REL claimed T established BMW while serving notice period - T employed under oral employment agreement - Respondent's evidence preferred - T bound by common law requirement to give reasonable notice - T's written resignation gave over three months notice - T's meeting with REL ended badly - REL ceased paying T - No attempt made by applicant to persuade T to work out remainder of notice - Applicant claimed T used financial information that belonged to REL - Applicant took over three weeks to call T to a meeting - T unimpeded by any restraint of trade, but needed to observe implied duties to REL - Authority found no probative evidence T used information confidential to REL that was obtained during employment -By setting up BMW, T simply put company in marketplace to compete with other earth moving contractors - No breach of obligations to REL - W and B supervisors of contracts undertaken by REL in Canterbury area - W resigned and consented to act as a director of BMW - W aware that in event of BMW obtaining finance would then be in competition with REL - W breached duty to REL by consenting to act as a director of BMW while still employed by REL - W breached implied obligation not to act in manner as to compete with employer while still employed - Authority satisfied W did not use confidential information or business opportunities for personal advantage during course of employment with REL - W had extensive and detailed knowledge of potential customer base in region was not stockpiling work which could later be uplifted by BMW - B gave required notice for resignation - REL alleged B contacted other employees to persuade them to join BMW - B breached implied obligation while still employed by REL, not to act on behalf of BMW, which was about to compete with REL - Also breached duty to REL by attempting to persuade another REL employee to join BMW while still employed by REL - Insufficient evidence to conclude B undermined REL's business relationships with view of transferring potential customers to BMW - Authority did not accept B and T deleted information from REL computer to benefit BMW - B not dismissed for serious misconduct - REL had not even implemented rudimentary process to determine issue - REL claimed proprietary rights over ongoing clients of REL - Cold reality in competitive market any entity could seek services wherever it chose - Issue finely balanced - Considerable degree of loss sustained by REL due to high impact advertising by BMW - Authority found no breaches by T - DAMAGES - No financial loss caused to REL through breach by W - B unsuccessful in persuading REL employee to join BMW, no loss to REL established - REL failed to establish causal link between breaches and alleged losses
Result: Application partially granted (Breach of contract)(W and B) ; Application dismissed (Damages) ; Costs reserved
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