Christopher Noel Dayton v Woolworths Limited [2006] NSWIRComm 215

Industrial Relations Commission of New South Wales in Court Session

CITATION: Christopher Noel Dayton v Woolworths Limited [2006] NSWIRComm 215

APPLICANT: Christopher Noel Dayton PARTIES: RESPONDENT: Woolworths Limited

FILE NUMBER(S): IRC 6815 of 2002

CORAM: Marks J

Strike out proceedings - respondent claimed proceedings time barred – applicant incapacitated to work for long periods – no clear indication when incapacitation would cease - respondent required medical certificate from applicant – respondent claimed termination effective pursuant to notice contained in letters that applicant never received – respondent acted on basis that letters received and considered applicants employment abandoned – at later date applicant told his employment terminated – applicant enquired about salary continuance policy, superannuation benefits and workers' compensation claims – respondent claimed applicant's actions amounted to acceptance of repudiation of contract – various correspondence between applicant and respondent concerning applicant's employment status including letter from respondent's superannuation scheme – Interpretation of s 108B. Held: Section 108B directed to termination of contract of employment and not termination of employment relationship – court to decide issues raised in a proceedings in a summary way in clearest of cases only – evidence in this interlocutory matter to be taken at its highest in favour of the applicant.

Repudiation – respondent's conduct amounted to anticipatory breach of conduct – respondent's conduct denied applicant opportunity to return to work at time when no longer incapacitated – applicant's conduct not consistent with unequivocal election to end contract – inconsistent conduct of various persons within the respondent's organisation created further uncertainty and complication.