Peter English v Aradlay Insurance Brokers Pty Ltd [2005] NSWIRComm 253

Industrial Relations Commission of New South Wales in Court Session

CITATION: Peter English v Aradlay Insurance Brokers Pty Ltd [2005] NSWIRComm 253

APPELLANT: Peter English PARTIES: RESPONDENT: Aradlay Insurance Brokers Pty Ltd

FILE NUMBER(S): IRC 6048 of 2004

CORAM: Wright J President; Boland J; Haylen J

Unfair contract - Industrial Relations Act 1996 - s 106 - contract of employment - sale of respondent's business - sale agreement provides for continuation of employment on no worse terms than available with respondent - appellant in branch managerial role - appellant alleges purchaser declines to offer ongoing employment but only franchise arrangement - business taken over gradually by purchaser with respondent operating the business during changeover period - further employment arranged with another franchise by purchaser during changeover period - appellant fails to reach agreement with purchaser on terms of franchise and leaves employment - at first instance appellant fails in claim for reasonable notice and severance pay - application for leave to appeal - error demonstrated in relation to severance pay - leave to appeal granted - no error established in relation to period of notice - principle of mitigation considered - no obligation to accept unsatisfactory employment - contract unfair in failure to provide appropriate level of severance pay where ongoing employment not secured by respondent - significant difference between employment and possible franchise arrangement not recognised in original decision - no basis for rejecting appellant's uncontradicted evidence that purchaser refused to offer ongoing employment - appellant not cross-examined on this issue - Court not obliged to accept evidence not called into question but must do so on firmly established basis - no suggestion that appellant's evidence unsatisfactory or inherently incredible or unconvincing - appellant's evidence consistent with other aspects of evidence - rejection of appellant's evidence critical to first instance findings - appellant's uncontradicted evidence accepted on appeal - appeal upheld - respondent to pay 20 weeks' severance pay -costs.