Benson and Western Sydney Automotives Pty Limited [2006] NSWIRComm 1040

Industrial Relations Commission of New South Wales

CITATION: Benson and Western Sydney Automotives Pty Limited [2006] NSWIRComm 1040

APPLICANT Kylie Louise Benson PARTIES: RESPONDENT Western Sydney Automotives Pty Limited

FILE NUMBER(S): 5672 of 2004

CORAM: Murphy C

CATCHWORDS: S.84 application claiming constructive dismissal from resignation following alleged threat of termination for serious misconduct involving practice of cash-jacking (i.e. false) price of vehicle for sale to attract higher credit from finance company. Applicant said to have capacity; motive; and opportunity with no plausible alternative available to applicant's alleged behaviour - witnesses credibility compared and applicant's evidence preferred on crucial evidence of involuntary resignation - Applicant constructively dismissed - Respondent's investigation flawed. Respondent failed to discharge onus in case of dismissal for serious and wilful misconduct to prove conduct on balance of probabilities.

LEGISLATION CITED: Industrial Relations Act 1991

Allison vs Bega Valley City Council reported at (1995) 63 IR 68 Claric 218 Pty Ltd trading as Sanity Music and Meldrum reported @ 1988 volume 91 of IR at page 296 Gartrell White No 3 and Pastrycooks reported at 1990 35IR @ page 70 SDA and Jewel Food Stores Case at 22IR @ page 1 Humphries vs Cootamundra Ex-Services and Citizens Memorial Youth Club reported @ 128 IR at page 37 Burge vs NSW BHP Steel reported @ 105 IR at page 325 CASES CITED: Ryan vs Woy Woy District Rugby League Club 4997 of 2004 9.9.05 Murphy C. Franklins vs Webb (1996) 72 IR 257 Brigginshaw vs Brigginshaw (1938) 60CLR 336 Rheinberger vs Huxley Marketing Pty Ltd reported at (1996) 67 IR 154. Mohazab vs Dick Smith Electronics Pty Ltd (1995) IR 200 Byrne & anor. vs Australia Airlines (1995) 61 IR 32 Bigg & anor vs NSW Police Service at 80 IR 434