Employment – summary dismissal

Condren v The Southport Workers Community Club Inc [2010] QSC 130

The grounds for the summary dismissal from the plaintiff’s employer were primarily based on whether the use of motor vehicles during the course of the plaintiff’s employment and receipt of money from a ‘trade-in’ from one such vehicle amounted to being misconduct, which warranted summary dismissal. Ultimately, McMurdo J found they were and that the Board, which governed the employer had not approved them and the plaintiff was complicit in this.

The test in Concut Pty Ltd v Worrell was re-stated and approved:

[38] The Club bears the onus of establishing misconduct or dishonesty entitling it to summarily dismiss its employee.[1] Each of the arguments appears to accept that the meaning of misconduct within cl 5 of the 2004 contract accords with what is sufficient under the general law to justify a summary dismissal. In Blyth Chemicals Limited v Bushnell[2], in a passage cited with approval in Concut Pty Ltd v Worrell[3], Dixon and McTiernan JJ said:

“Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal … But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.”

 

His Honour deducted from the plaintiff’s termination entitlements of long service leave and annual leave, the amount of the trade-in receipted by the plaintiff and damages for the unauthorised use of the vehicle.

His Honour noted that if this was not the position the plaintiff would have been entitled to payment in lieu of reasonable notice. The plaintiff contended for 18 months, the club submitted 3-6 months. His Honour considered 9 months in the circumstances was appropriate. Hence, damages would have included the sums of $93,750 for salary and $7,800 for allowances.

Brisbane Barrister – David Cormack


[1] Serventi v John Holland Group Pty Ltd [2006] FCA 1049, [7]-[9].

[2] (1933) 49 CLR 66, 81-82.

[3] (2000) 176 ALR 693, [25] (Gleeson CJ, Gaudron and Gummow JJ).

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