T D Preece & Co. Pty Ltd v Murton [2007] NSWIRComm 130

Industrial Court of New South Wales

CITATION: T D Preece & Co. Pty Ltd v Murton [2007] NSWIRComm 130

APPELLANT T D Preece & Co. Pty Ltd PARTIES: RESPONDENT Rick Murton

FILE NUMBER(S): IRC 3638 of 2006

CORAM: Wright J President; Walton J Vice-President; Boland J

Appeal - Application for leave to appeal and appeal - Unfair contract - Employment contract - Employee summarily dismissed for poor performance - Contract did not contain express provisions regarding termination of employment - Implied term of reasonable notice - Held at first instance no evidence of poor performance - Held contract unfair because it failed to protect employee from summary termination - Contract varied to provide for two months' pay in lieu of notice - Contended on appeal that contract not unfair because it contained an implied term of reasonable notice and that conduct of appellant in summarily terminating the respondent merely a breach of contract thus precluding the Commission's jurisdiction - Held on appeal that open to Full Bench to form own view about the contract - Held on appeal the contract became unfair because it permitted the appellant to act unfairly, harshly or unconscionably in summarily terminating the employment of the respondent on grounds that were not made out and in failing to apply fair termination procedures - No warning or counselling by appellant of the respondent in relation to alleged poor performance - Orders at first instance varied CATCHWORDS: Unfair contract - Appeal - Application for leave to appeal and appeal - Employment contract - Employee summarily dismissed for poor performance - Contract did not contain express provisions regarding termination of employment - Implied term of reasonable notice - Held at first instance no evidence of poor performance - Held contract unfair because it failed to protect employee from summary termination - Contract varied to provide for two months' pay in lieu of notice - Contended on appeal that contract not unfair because it contained an implied term of reasonable notice and that conduct of appellant in summarily terminating the respondent merely a breach of contract thus precluding the Commission's jurisdiction - Held on appeal that open to Full Bench to form own view about the contract - Held on appeal the contract became unfair because it permitted the appellant to act unfairly, harshly or unconscionably in summarily terminating the employment of the respondent on grounds that were not made out and in failing to apply fair termination procedures - No warning or counselling by appellant of the respondent in relation to alleged poor performance - Orders at first instance varied