Carol Moreland v Optus Communications/Optus Mobile Pty Ltd [1995] IRCA 48

CATCHWORDS INDUSTRIAL LAW - Termination of employment - Retrospectivity of the operation of ss. 170EDA and 170EE of the Act - The effect of taxation on the amount of compensation to be awarded - Whether payments made as a consequence of an order for compensation are "eligible termination payments" within the meaning of s. 27A(1) of the Income Tax Assessment Act 1936 - The effect on the amount of compensation to be awarded of a finding that, but for lack of procedural fairness, the termination of the applicant's employment would have been for a valid reason - Lengthy counselling process, but a failure by the responsible manager to read the applicant's written responses to his criticisms - Opportunity to respond under s. 170DC must be a real one - Absence of procedural fairness - Unjust termination - Deteriorating work relationship between applicant and work colleagues - Reinstatement impracticable - Award of compensation. Industrial Relations Act 1988, ss 170EA, 170EDA, 170EE, 170DC, 170DE Industrial Relations Amendment Act (No. 2) 1994 Acts Interpretation Act 1901, s 8 Income Tax Assessment Act 1936, s27A Mathieson v Burton (1971) 124 CLR 1 Maxwell v Murphy (1957) 96 CLR 261 Kraljevich v Lakeview and Star Ltd (1945) 70 CLR 647 In Re Athlumney; Ex parte Wilson (1898) 2 Q.B. 547 Fisher v Hebburn Ltd (1960) 105 CLR 188 Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379 Bean v Milstern Retirement Services Pty Ltd (NI 423 of 1994) (unreported, 16 December 1994 ) Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 Gregory v Philip Morris Ltd (1988) 24 IR 397 Wheeler v Philip Morris Ltd (1989) 32 IR 323 Byrne and Frew v Australian Airlines Limited (1994) 52 IR 10 Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20 Jones v Dunkel (1958) 101 CLR 298 British Transport Commission v Gourley [1956] A.C. 185 Cullen v Trappel (1980) 146 CLR 1 McIntosh v FCT 79 ATC 4 Reseck v FCT (1975) 133 CLR 45 CAROL MORELAND v OPTUS COMMUNICATIONS/OPTUS MOBILE PTY LTD No. NI 437 of 1994 CORAM: PATCH JR PLACE: SYDNEY HEARING DATES: 14, 15, 16 DECEMBER 1994 JUDGMENT DATE: 28 FEBRUARY 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NI 437 OF 1994 BETWEEN: CAROL L. MORELAND Applicant AND: OPTUS COMMUNICATIONS/OPTUS MOBILE PTY LTD Respondent CORAM: PATCH JR PLACE: SYDNEY HEARING DATES: 14, 15, 16 DECEMBER 1994 JUDGMENT DATE: 28 FEBRUARY 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. That the respondent pay to the applicant compensation in the sum of $7, 500.00, within 21 days of 28 February 1995. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NI 437 of 1994 BETWEEN: CAROL L MORELAND Applicant AND: OPTUS COMMUNICATIONS/OPTUS MOBILE PTY LTD Respondent Before: Patch JR Place: Sydney Hearing Dates: 14, 15, 16 December 1994 Judgment Date: 28 February 1995 REASONS FOR JUDGMENT