LWB Disability Services South Limited t/as Life Without Barriers v Smith [2021] NSWCA 37

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: LWB Disability Services South Limited t/as Life Without Barriers v Smith [2021] NSWCA 37 Hearing dates: 18 February 2021 Date of orders: 18 March 2021 Decision date: 18 March 2021 Before: Bell P at [1]; Macfarlan JA at [103]; Payne JA at [104] Decision: (1) Allow the appeal with costs. (2) Set aside the orders of the primary judge of 15 May 2020 and 2 July 2020. (3) Order that the statement of claim filed 25 January 2019 be dismissed. (4) Order that the Respondent pay the Appellant's costs at first instance. Catchwords: CONTRACT – Contract of employment – whether location of employment in a letter of offer of employment was an essential term, breach of which gave rise to a right to terminate and a claim for damages – where employee asserted that employer's insistence upon changing the employee's work location amounted to repudiatory conduct and purported to accept that repudiation.

EMPLOYMENT & INDUSTRIAL LAW – Contract of employment – whether location of employment in a letter of offer of employment was an essential term, breach of which gave rise to a right to terminate and a claim for damages – where relevant Award contained mobility of staff clause which provided for employer to move employees around relevant District upon satisfaction of certain conditions – whether location as outlined in letter of offer ousted operation of mobility of staff clause in Award. Legislation Cited: Crown Employees (Public Service Conditions of Employment) Award 2009 Crown Employees Ageing, Disability and Home Care – NSW Department of Family and Community Services (Community Living Award) 2010 Crown Employees Ageing, Disability and Home Care – NSW Department of Family and Community Services (Community Living Award) 2015 Industrial Relations Act 1996 (NSW) s 12(1) National Disability Insurance Scheme (NSW Enabling) Act 2013 (NSW) s 14 Public Sector Employment and Management Act 2002 (NSW) s 87(2), Div 1, Pt 3.2 Cases Cited: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Josephson v Walker (1914) 18 CLR 691; [1914] HCA 68 Kilminster v Sun Newspapers Limited (1931) 46 CLR 284; [1931] HCA 37 Maggbury Pty Limited v Hafele Australia Pty Limited (2001) 210 CLR 181; [2001] HCA 70 The King v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday; Ex parte Sullivan (1938) 60 CLR 601; [1938] HCA 44 Texts Cited: P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) K Lewison and D Hughes, The Interpretation of Contracts in Australia (2012, Lawbook Co) Category: Principal judgment Parties: LWB Disability Services South Limited t/as Life Without Barriers (Appellant) Greg Smith (Respondent) Representation: Counsel: