Cunningham v Midcoast Petroleum [2001] NSWIRComm 66

Industrial Relations Commission of New South Wales

CITATION : Cunningham v Midcoast Petroleum [2001] NSWIRComm 66 PARTIES : James George Cunningham Midcoast Petroleum Pty Ltd FILE NUMBER: IRC 4601 of 2000 CORAM: Harrison DP at 1 Unfair dismissal - fixed term contract of employment - termination mid-term CATCHWORDS : Held - Performance agreement not part of contract - sales target not basis for termination in absence of any other criticism Found - dismissal harsh, unreasonable and unjust, maximum compensation of 26 weeks awarded LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 12/01/2000; 02/14/2001 DATE OF JUDGMENT: 04/04/2001

Mr I Borrow Solicitor of Haywards Solicitors

LEGAL REPRESENTATIVES: Mr P McGuire of Counsel Instructed by Ms S Price Cowley Hearn Lawyers

JUDGMENT: - 20 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 4 April 2001 Matter No IRC 4601 of 2000

James Cunningham and Midcoast Petroleum Pty Ltd

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 The application in this matter was filed on 14 September 2000 and first listed for proceedings for the purpose of directions and conciliation on 26 September 2000. These proceedings were deferred at the request of the parties to 8 October 2000. A further attempt at conciliation took place on 17 October 2000, on which occasion it was established that the matter could not be resolved by agreement. Directions were issued to bring the matter to arbitration on 1 December 2000. In the event, the matter proceeded on 1 December 2000 and concluded on 14 February 2001, by agreement of the parties, to accommodate availability of a witness 2 Mr I Borrow of Haywards Solicitors appeared on behalf of the applicant, Mr Cunningham. Mr P McGuire of Counsel, instructed by Ms S Price of Cowley Hearn Lawyers, appeared on behalf of Midcoast Petroleum Pty Ltd, the respondent employer. 3 On hearing Mr Borrow brought evidence from Mr Cunningham. Mr McGuire brought evidence from Mr John Ozard, an employee of the respondent since 3 August 1992 and at the relevant time employed in the role of Wholesale Marketing Manager; Mr Glenn Powell, an employee of Mobil Oil Australia Ltd who has since the end of February 2000 performed the role of General Manager for the respondent, a company jointly owned by Mobil Oil and another; Mr Terrence Kelly, employed as the Financial Controller by the respondent since 22 May 2000; and Mr Nigel Hobbs, an employee of Mobil Oil Australia who was General Manager of the respondent from October 1998 until January 2000. 4 The evidence established that Mr Cunningham was offered employment by the respondent as an Industrial Lubricants Executive on 13 January 1998, which he accepted on 27 January 1998. Mr Cunningham commenced employment on 2 February 1998 and on that day he signed an employment contract for a period of two years ('the contract"). This contract is attachment C to exhibit 2, the affidavit of evidence of Mr Cunningham. 5 The relevant terms of the contract are set out below: