Paul Stephen Cummings v Crossocean Forwarding Services Pty Ltd [2001] NSWIRComm 303

Industrial Relations Commission of New South Wales in Court Session

CITATION : Paul Stephen Cummings v Crossocean Forwarding Services Pty Ltd [2001] NSWIRComm 303 APPLICANT: Paul Stephen Cummings PARTIES : RESPONDENT: Crossocean Forwarding Services Pty Ltd FILE NUMBER: IRC 2944 of 2000 CORAM: Glynn J CATCHWORDS : Unfair contract - sale of business by applicant to respondent - applicant employed by respondent for initial period of two years - possibility of further term of one year at option of respondent - dispute between applicant and respondent as to whether contract was one of indefinite duration with initial minimum period of two years (applicant) or a fixed term contract of two years with possibility of further one year term (respondent) - contract varied to provide further term of six months - Held: contract one of fixed term - variation unfair because of substantially inferior bargaining power of the applicant - awarded additional six months pay - payment at base rate of $80,000 - continuity of employment from 1992 to 1997 - payments already made to be adjusted to take account of those findings - claims for bonus, redundancy and notice refused - interest payable from date of filing of application - no discount on basis of mitigation - respondent's claims as to the applicant coming to the Commission with unclean hands rejected. LEGISLATION CITED : Industrial Relations Act 1996 s 105 s 106 Industrial Relations Act 1988 (Cth) s 170CC Abboud v State of NSW (2000) 99 IR 299 Burton v Litton Business Systems (1977) 16 SASR 162 Clarke v Hancock (1993) 36 AILR #8 Cooper v Darwin Rugby League Inc (1994) 57 IR 238 Frost v Newlands Coal Pty Ltd (1998) 44 AILR #3-830 CASES CITED : Fryar v System Services Pty Ltd (1996) 137 ALR 321 Harcourt Brace & Company (Australia) Pty Ltd v Cory (1998) 81 IR 321 Newton v Goodman Fielder (1997) 81 IR 227 Nokes v Doncaster Amalgamated Colleries Ltd [1940] AC 1014 Nordby v Barclays Investment Services (1993) 53 IR 319 Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 HEARING DATES: 04/30/2001; 05/01/2001; 05/28/2001 DATE OF JUDGMENT: 11/30/2001