Emmerson v Housing Industry Association Ltd [1999] FCA 500

FEDERAL COURT OF AUSTRALIA

Emmerson v Housing Industry Association Ltd [1999] FCA 500 INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - unlawful termination - prohibited reason - onus of proof - whether employment terminated for reasons including 'temporary absence from work because of illness or injury' - employment contract - breach of contract - summary dismissal - implied term to act fairly and in good faith and to maintain relationship of confidence and trust - unconscientious dealing - loss and damage - remedy - compensation - loss of leave and termination entitlements - loss of bonus and commission - adverse effect on ability to obtain alternative employment - pain shock and humiliation. Workplace Relations Act 1996 ss170CK, 170CQ Industrial Relations Act 1988 ss170DF, 170EDA Conciliation and Arbitration Act 1904 s5(4) Johns v Gunns Ltd (1995) 60 IR 258 - followed; Stojanovic -v- The Commonwealth Club Ltd (Industrial Relations Court of Australia, unreported, 8 December 1995) - followed; General Motors Holden Pty Ltd -v- Bowling (1976) 12 ALR 605 - cited; Burazin v The Blacktown City Guardian (Industrial Relations Court of Australia, (Full Court) unreported, 13 December 1996) - applied; Brackenridge -v- Toyota Motor Corporation (Australia) Ltd (1996) 67 IR 162 - cited.

PETER EMMERSON -v- HOUSING INDUSTRY ASSOCIATION LTD

V 49 of 1999

JUDICIAL REGISTRAR RYAN

MELBOURNE

27TH APRIL 199

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 49 OF 1999

BETWEEN: PETER EMMERSON

Applicant

AND: HOUSING INDUSTRY ASSOCIATION LTD

Respondent

JUDICIAL REGISTRAR: RYAN JR

DATE OF ORDER: 27 APRIL 1999

WHERE MADE: MELBOURNE

ORDERS

THE COURT: 1. declares termination of the applicant by the respondent has breached s170CK(2)(a) of the Workplace Relations Act 1996; 2. imposes a penalty of $10,000.00 pursuant to s170CR(1)(a); 3. directs that the penalty be paid to the applicant; 4. orders compensation under Division 3 of the Workplace Relations Act 1996 for breach of s170CK(2)(a) in the sum of $21,703.00; 5. directs Counsel for the applicant to submit draft Minutes of Orders which encompass orders 1 - 4 above and provide for damages as specified in paragraph 70 of these reasons for loss of ability to obtain alternative employment, sick leave, commission, pain, shock and humiliation and provide calculations of the value of long service leave entitlements and termination entitlements under the 1995 Instrument as outlined in general terms in paragraph 70 of these reasons; 6. proposes final orders be settled in Chambers from the draft Minutes of Orders as soon as practicable. 7. directs interest on the statutory compensation; sick leave entitlements; termination entitlements under the 1995 Instrument; long service leave entitlements; commission; and the award for pain shock and humiliation at 12.3% per annum from the date of termination of employment to be included in draft Minutes of Orders. 8. orders costs reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.