Manajemen | Fakultas Ekonomi Universitas Maritim Raja Ali Haji 2004 13
MAJOR TRIBUNAL DECISIONS IN 2003
JOSEPH CATANZARITI* AND YASEEN SHARIFF**
T
he authors review the major decisions of the previous year. The review is focussed
upon decisions that in some way affected or are likely to affect individual rights
and obligations more so than collective ones. First, the article offers an analysis of
the concept of joint employment and its potential application in Australian courts and
tribunals. Second, the High Court’s ruling in respect of the duty owed by employers
to their employees’ children is considered. The authors comment that the decision is indicative of the ever expanding duty of care owed by employers. Third, the authors analyse
a decision that considers the application of the Trade Practices Act 1974 to employment
matters. Fourth, a decision of the Queensland District Court is reviewed because it is the
first decision of an Australian court recognising an actionable right to privacy. The authors
note that this decision is subject to appeal and therefore is likely to be scrutinised by
superior courts. Finally, the authors comment that the growth in the assertion of individual rights raises important cultural challenges for collective organisations, which are
likely to be ventilated in the next 12 months through some important test cases.
INTRODUCTION
In previous contributions to this journal we have reviewed a number of decisions
with some connection to collective rights and obligations. In the present
contribution we have focussed the greater part of our review to decisions
that either affect individual rights or decisions that in our view extended the
scope of labour law.
Our emphasis on decisions relating to individual rather than collective matters
reflects the increased number of decisions made by industrial courts and tribunals
relating to individual grievances. At a Federal level the emphasis on individual
rights and obligations is evident in the terms and underpinning philosophy
of the Workplace Relations Act 1996 (Cwlth)1. That does not however explain
the occurrence of similar phenomenon at a state level. As trite an observation as
it may be, it is our view that the increased ventilation of individual grievances is
perhaps indicative of contemporary legal, social and economic norms. To put it
another way, it is our view that the matters of most concern to employers and
employees (whether rightly or wrongly) are those affecting the individual rights
between them.
An apposite example of the assertion of individual rights was the decision in
Grosse v Purvis.2 In that case a senior judge of the Queensland District Court
found that there was an actionable right at common law of a tort of invasion of
privacy. While the decision was not strictly employment related, its implications
* Joseph Catanzariti, BA LLB, is a partner of national law firm Clayton Utz. Email: jcatanzariti@
claytonutz.com ** Yaseen Shariff, BEc (Social Sciences) LLB (Hons), is a solicitor of national law
firm Clayton Utz. Email: yshariff@claytonutz.com
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for the employment relationship could be significant. Another novel decision was
the High Court’s recognition in Gifford v Strang Patrick Stevedoring Pty Ltd 3
that an employer owed a duty to prevent psychiatric injury being suffered by the
children of a fatally injured employee. These decisions are worthy of review not
simply because they are novel, but because they exemplify a trend toward the
assertion of individual rights.
We have also considered recent decisions by tribunals relating to the notion
of joint employment. In our view, consideration of this notion seems timely given
the growth of various forms of arrangements for the hire and supply of labour.
While the concept of joint employment as a principle of law has not displaced
traditional legal doctrines, we are of the view that the concept may have further
application in the future.
Recently there have been a few employment related matters litigated under
the provisions of the Trade Practices Act 1974 (Cwlth). We have reviewed one such
decision of the last 12 months that reflects the scope and limitations of these types
of cases.
All of these decisions are indicative of the ongoing expansion of the reach of
labour law. The jurisdiction is by no means static and will continue to evolve in
the years to come.
TOWARD
A JOINT EMPLOYMENT PRINCIPLE?
Courts and tribunals have previously dealt with issues arising from labour hire
arrangements, most notably in the decision of BWIU v Odco Pty Ltd.4 The legal
concerns arising from that decision were addressed by Fenwick in Shooting for
trouble?: Contract labour hire in the Victorian building industry.5 Since that time,
the perennial issue for determination in most cases involving labour hire
arrangements remains the question of which entity, supplier or host, is the
relevant employer.6
As demonstrated in one case in the past 12 months, these questions may also
arise in the context of arrangements for the supply of labour within or amongst
related entities operating as a group of companies.7
In at least three decisions of the last 12 months, undercurrents of a shift in
judicial approach in determining these issues may be detected. Specifically,
the notion of joint employment has been canvassed as a more realistic
means by which to resolve issues arising from the hire and supply of labour.
While the notion of joint employment has not yet obtained the status of an
authoritative or applicable rule of law, there may be scope for such a status
in the future.
Thiess Services case
The first decision of note was that of Oanh Nguyen and A-N-T Contract
Packers Pty Ltd trading as A-N-T Personnel and Thiess Services Pty Ltd
trading as Thiess Services (the Thiess Services Case).8 The decision related
to A-N-T Personnel Contract Packers Pty Ltd (A-N-T), a labour hire agency,
which supplied the services of Ms Nguyen to Thiess Services Pty Limited
(Thiess).
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For a short period, Ms Nguyen was actually employed by Thiess.9 However,
after a shift or so she became an employee of A-N-T.10
During her engagement, Ms Nguyen became pregnant, but concealed her
pregnancy for as long as she could before informing her supervisor.11After this,
a dispute arose as to the work performed by Ms Nguyen, which she claimed
was more difficult and heavier than usual, and therefore inappropriate due to
her pregnancy.12 Thiess arranged a medical examination to be undertaken in
order to assess Ms Nguyen’s fitness for duty.13 The consequent medical report
identified Ms Nguyen as fit for duties until confinement, but with restrictions
as to lifting, pushing, pulling, bending and standing.14
Following the medical report, Ms Nguyen was stood down with pay. The
next day she was informed by a Thiess manager that she could not return to work
for Thiess.15 Thiess then notified A-N-T that Ms Nguyen’s services were no
longer required as she was not fit for duty. Ms Nguyen never worked for Thiess
again.16
Ms Nguyen appears not to have provided any further services on behalf of
A-N-T.17 A-N-T did offer her some work within their own business in a
quasi-clerical role after proceedings were commenced.18 At some later time,
Ms Nguyen requested a separation certificate from A-N-T in order to enable
her to obtain social security benefits.19
Ms Nguyen commenced unfair dismissal proceedings against both A-N-T and
Thiess pursuant to section 84 of the Industrial Relations Act 1996 (NSW).20
A-N-T and Thiess made similar contentions. The first being that Thiess was
not the employer and the second being that there had been no termination by
either A-N-T or Thiess.21
Commissioner McKenna of the Industrial Relations Commission of New South
Wales (the NSW Commission) found there had been a termination of the relationship and that this termination had been initiated by Thiess. Commissioner
McKenna found as follows:
The applicant was moved from her usual duties at Chullora by Thiess; the applicant
was directed by Thiess to attend a medical examination with a doctor specified
by Thiess, the applicant was stood-down from a shift by Thiess, with pay;
thereafter, the applicant was not permitted to work again for Thiess at Chullora
on the grounds of unfitness, contrary to her stated wishes to continue working.
I am satisfied that the cessation of ongoing work for the applicant at Chullora
amounted to a “dismissal” within its ordinary meaning . . . After the applicant’s work
at Chullora ceased at Thiess’s initiative, all that was left was the empty husk of a
relationship with ANT . . .22
Turning to the question of which one of A-N-T or Thiess was the employer
of Ms Nguyen, Commissioner McKenna noted that in the ordinary case, the
labour hire company would be regarded as the employer. However, the
Commissioner was of the view that the arrangement in the present instance was
atypical.23
Ms Nguyen’s representatives argued that A-N-T and Thiess were joint
employers and that both ought to be liable for the termination with the
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quantum of the liability apportioned in accordance with their level of
culpability.24 Commissioner McKenna had regard to authorities dealing with
the issue of joint employment including Morgan v Kittochside (Kittochside)25
wherein a Full Bench of the Australian Industrial Relations Commission
(AIRC) explained the applicability and notion of joint employment in the
ollowing way:
So far as we are aware, the notion of joint employment has thus far not been
the subject of rulings or dicta by any Australian Court. The compatibility of the
notion with the common law concept of employment based on the master servant
relationship is therefore moot.
The doctrine of joint employment or joint employers, is well established in labour
law in the United States. It appears to have been a response to the use of labour hire
arrangements by employers in circumstances that conduced to an avoidance of labour
regulation and employee protections.26
In concluding, the Full Bench stated:
It is not necessary for us to further explore the compatibility of a joint employer
principle with, or its applicability to, the employment relationship that exists between
Ms Morgan, Kittochside and Mr Reid trading as Northam Pharmacy. Were it
necessary to do so, we would incline to the view that no substantial barrier should
exist to accepting that a joint employment relationship might be found to exist and
given effect for certain purposes under the Act.27
Similarly, Commissioner McKenna in the Thiess Services Case held:
I have not, however, been persuaded that there is presently substantial or clear
authority for reaching a conclusion as to joint employment. 28
However, Commissioner McKenna stated that if a concept of joint employment
was applicable, then, in her view, this was a case in which A-N-T and Thiess
would be held to be joint employers.29
Commissioner McKenna proceeded to find that Thiess was nevertheless the
relevant employer of Ms Nguyen:
. . . it was Thiess which was the actual, or real and effective, employer of the applicant
and Thiess which harshly, unreasonably and unjustly dismissed the applicant. While
there was evidence of some interaction between the Applicant and ANT of the type
associated with a labour hire company and one of its employees, I accept Mr Penning’s
submission that the relationship between the applicant and ANT was minimal.
ANT had no real or effective involvement or control in any aspect of the applicant’s
recruitment, day-to-day employment and dismissal . . .30
Staff Aid case
The second noteworthy decision was that of Commissioner Lewin in Josie Bianchi
v Staff Aid Services31 (the Staff Aid Case). Staff Aid provided the services of the
applicant, Ms Bianchi, to Coles Myer (Coles). Ms Bianchi signed a contract with
Staff Aid on 12 February 2002, which stated that the company offered to engage
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her to provide ‘independent contractor services’ for Coles.32 The agreement
further provided that Staff Aid could terminate her services if she was no longer
required by Coles.33
According to evidence before the AIRC, Coles apparently became dissatisfied
with Ms Bianchi’s work performance, and on 5 December 2002, informed Staff
Aid that it would be terminating its relationship with Ms Bianchi.34
Ms Bianchi brought an action for unfair dismissal under section 170CE of the
Workplace Relations Act 1996 (Cwlth) against Staff Aid. Staff Aid argued that the
applicant was prevented from bringing the action since she was not employed
by Staff Aid.35 Staff Aid argued that it acted as a recruitment consultant, which
facilitated the engagement of Ms Bianchi as an independent contractor providing
services to Coles.36
Commissioner Lewin determined that Staff Aid was the employer by reference
to the test established in Sammartino v Mayne Nickless Express t/a Wards Skyroad,37
which in turn had been guided by the seminal decision in Stevens v Brodribb
Sawmilling Co Pty Ltd.38 The Commissioner however made an important
observation:
Had I not arrived at the conclusion above, in accordance with the decision in
Morgan v Kittochside, I would have been compelled to find that there was a shared
responsibility for an employment relationship as been Staff Aid Services and Coles
Myer. If that be correct the application would not be excluded from the jurisdiction
if only one of the parties were named as respondent.39
Joint employment in Cool or Cosy group arrangements
The third in the trilogy of cases in the past 12 months dealing with the
notion of joint employment arose in a different context to that of labour
hire arrangements. In the decision of Matthews v. Cool or Cosy Pty Limited; Ceil
Comfort Home Insulation Pty Limited40 an unfair dismissal action was commenced
by Mr Matthews under section 29(1)(b)(i) of the Industrial Relations Act
(1979) (WA). The action was commenced against a number of related
entities, namely Cool or Cosy Pty Limited (Cool or Cosy), Ceil Comfort
Home Insulation Pty Limited (Ceil) and Citigroup Pty Limited (Citigroup).41
The action against Citigroup was subsequently withdrawn (this company had
gone into liquidation).42
One of the main issues in the proceedings was whether Mr Matthews was
employed by Cool or Cosy, Ceil, Citigroup or some other related entity.43
At first instance, Mr Matthews’ application was dismissed on a number of
grounds including that neither Cool or Cosy nor Ceil employed Mr Matthews.44
This decision was then appealed to the Full Bench of the Western Australian
Industrial Relations Commission (WAIRC).
President Sharkey (with whom Chief Commissioner Coleman and
Commissioner Gregor concurred) found that there was a large degree of
interconnectedness between the entities and other related bodies.45 For
example, every company within the group of companies had the same four
directors, except for Citigroup.46
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It was argued by the respondents that Citigroup employed Mr Matthews.47
Ultimately, President Sharkey found that Ceil was the relevant employer.48
Amongst other things, his Honour took into account the following factors:
(a) Mr Matthews was initially engaged on 14 August 1995 as a State Manager
on the letterhead of COC Pty Ltd (another related entity).49
(b) On 13 March 1996, Mr Matthews’ appointment as General Manager/Sales
Manager was reported on the Ceil letterhead.50
(c) A prize for performance of $4000 was awarded to Mr Matthews in 1997 and
the cheque was drawn by COC Pty Ltd (COC).51
(d) In 1998, COC purchased a motor vehicle for Mr Matthews’ use and the hire
purchase and lease payments were made by COC.52
(e) The AMP Superannuation Trust Statement named Cool or Cosy as the
employer.53
(f) On 19 October 1999, an announcement was made on Ciel letterhead that
Mr Matthews was appointed as the General Manager for New South Wales,
Western Australia and Tasmania.
(g) Mr Matthews’ Group Certificate for 2000/2001 named the employer as Cool
or Cosy Natural Insulation. It was found that no proof that such a company
existed at that time or at all. A further Group Certificated for 2000/2001
named COC as the employer.
(h) Ceil paid Mr Matthews consultancy fees, but his salary was paid by COC.
(i) In early October 2000, Mr Matthews received a taxation employment
declaration indicating that the employer was Citigroup. However, there
was evidence that this was done to use Citigroup as the corporate vehicle
to distribute costs through the group of companies.
(j) Shortly after October 2000, contracts of employment were drafted, but never
executed. These contracts identified Ceil as the employer.
(k) An accident and sickness insurance policy was also procured for Mr Matthews
by Ceil. There was an admission made that Ceil was paying the premiums
on this policy as he was a ‘key employee’ of Ceil.
(l) Mr Matthews’ final pay summary was issued by Citigroup as was the final
Group Certificate.
(m)The letter of dismissal given to Mr Matthews was written on Cool or Cosy
letterhead.
Importantly, President Sharkey also gave weight to the fact that when some
directors held an unofficial meeting to inter alia discuss Mr Matthews’ position,
they could not have done so on behalf of Citigroup; they were not directors of
Citigroup and would have had no authority to make a decision on behalf of
Citigroup.
Having regard to these matters, and reference to the sources of control exerted
over Mr Matthews and the actual work he performed within the various related
organisations, President Sharkey concluded that Mr Mathews’ employer was Ceil
not Citigroup.54
His Honour proceeded to state that if he was incorrect in finding Ceil to be
the employer, he would have found that Mr Matthews was in fact an employee
of the group and no one particular entity:
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Unquestionably, on the evidence, after October 2000, Mr Matthews was employed
as the national general manager of the domestic operations of the Cool or Cosy
Group. That is, he had responsibility for the operations of each Cool or Cosy Group
company in each State . . .
It is trite to observe that Mr Matthews did not act and could not act as
national general manager of one company, be it Ceil or COC Pty Ltd. In fact,
he did not. There was ample evidence that Mr Matthews, as national general
manager, was an integral part of the group and was controlled by the CEO and
the other directors. There was evidence of his being remunerated throughout
by various companies in the group, the employees of which he indubitably
was. The group itself, in reality, was a firm or partnership of companies each
controlled by the same directors and acting as one. Mr Matthews was, in fact, a
group employee. That means that he served every company, as members of the
group, in the domestic operations. This means that every company in the
group employed Mr Matthews and that he was directed by the CEO, who was
also the managing director of each company in the group, on behalf of the
companies in the group and that the directors, when they dismissed Mr Matthews,
acted for an on behalf of the group, as, on the evidence, they plainly did. He
was therefore dismissed by or on behalf of every company in the domestic
operations if the group, it is open to find, if it is wrong to have found that he was
employed by Ceil.55
His Honour further stated that these facts could have warranted a piercing of
the corporate veil.56To that end, the decision in the Cool or Cosy case opens
some scope to argue, at least in the context of group entities, that the notion
of joint employment can in fact be reconcilable with existing legal notions of
piercing the corporate veil.
At the time of writing, an appeal had been lodged in relation to this decision.
Implications
In each of the cases discussed above, the relevant tribunal was able to determine
the issue by reference to traditional legal tests. However, in each case, the concept
of joint employment was applied and found to be of merit even though it was
not decisive.
The application of the joint employment concept on a case-by-case basis may
lead to a far more realistic assessment of the commercial and legal risks shared
between organisations trading in the supply of labour. This may arguably be a
more cogent approach to present legal doctrines. Currently, there appears to be
no authoritative basis for the application and extension of the joint employment
concept. Despite this, it is our view that through a natural progression of
judicial deliberation, the concept of joint employment may be applied in a
decisive manner in the future.
In any event we are of the opinion that statutory intervention into
these matters would be highly desirable to clarify the position for practitioners,
and more importantly for employers and employees.
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EVER EXPANDING DUTY OF CARE
The duty of care owed by employers is ever expanding. The High Court’s
decision in Gifford v Strang Patrick Stevedoring Pty Ltd57 (Gifford’s Case) provides
another example of the increased duties imposed by the law upon employers. In
that decision, the judges of the High Court found that an employer owed a duty
of care to the children of a fatally injured employee.
Mr Gifford was employed as a wharf labourer and wharf clerk by Strang Patrick
Stevedoring Pty Ltd (Strang).58 He was fatally crushed in a forklift accident.59
Strang admitted that they had been negligent in not providing a safe place of
work for Mr Gifford.60 Mr Gifford’s three children were aged 19, 17 and 14.61
The children claimed they suffered psychiatric injury in consequence of finding
out their father’s fate.62 They sought damages for the alleged psychiatric injury
they had suffered as a result of Strang’s alleged negligence.63
The primary issue at dispute was whether Strang owed a duty of care to
Mr Gifford’s children to avoid their suffering psychiatric harm.64
In the past courts have held that the duty owed by one party to avoid psychiatric
injury to another party could only arise if the other party had a direct perception
of an incident negligently caused by the first party or its immediate aftermath.
These were known as nervous shock cases.
In accord with those cases, the New South Wales District Court at first
instance, and then the New South Wales Court of Appeal, dismissed the
claims made by Mr Gifford’s children on grounds that they did not directly
perceive the event that resulted in the death of their father or its immediate
aftermath.65 It was therefore held that Strang did not owe Mr Gifford’s
children a duty of care at common law for any psychiatric injury they had
suffered.66
Both the District Court and the Court of Appeal made their decisions prior
to the High Court’s decisions in Tame v New South Wales and Annetts v Australian
Stations Pty Ltd.67 In those cases, the High Court effectively overturned previous
authority and found that direct perception or attendance at the immediate aftermath of an incident is not always a necessary aspect of a claim for damages for
negligently inflicted psychiatric injury.
Applying this same reasoning the judges of the High Court in Gifford’s
Case found that it was reasonable for Strang to foresee that Mr Gifford’s
children could suffer psychiatric injury as a result of its negligent acts or
omissions.68 In arriving at the conclusion that the employer, Strang, owed this
duty to the children, Justices Gummow and Kirby had regard to what they
described as the ‘general public sentiment’,69 which was influenced by the
following factors:
(a) the work of the employee, Mr Gifford, advanced the business of the
employer;70
(b) the employee could be exposed to the risk of death in consequence of the
employer’s carelessness;71 and
(c) therefore, it was reasonably foreseeable that psychiatric injury could be
suffered on the part of the employee’s children in the event of the employee’s
death. 72
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That is, their Honours reasoned that since the employer, Strang, had exposed
Mr Gifford to the risk of serious injury, then, Strang ought to have also contemplated that Mr Gifford’s children could suffer psychiatric injury if a serious
injury did occur to the employee.73
Chief Justice Gleeson found that children were a class of persons that were
in a relationship of ‘natural love and affection’ to another class of persons, their
parents.74 Similarly, Justices Gummow and Kirby held that given employers
could expose employees (who are parents) to risk of injury, then, it was not
unreasonable for employers to have in contemplation the risk of consequent
psychiatric injury to the children of those employees.75
The most expansive judgment of the High Court was that of Justice McHugh.
Relying on the iconic neighbourhood principle enunciated by Lord Atkin in
Donoghue v Stevenson,76 Justice McHugh found that there was no policy reason
why the duty of an employer who was negligent toward an employee could not
extend to a duty to all those people who have a ‘close and loving’ relationship with
the employee.77 Under this broader approach, the practical result could be
that an employer’s duty could be extended to close relatives or friends of their
employees. In the present instance, Justice McHugh found:
. . . a reasonable employer in the position of Strang was bound to have in mind that
any harm cause to its employees carried the risk that it would caused psychiatric
harm to any children that he might have when they learned of his death.78
Although Justice Callinan agreed that Strang owed a duty to Mr Gifford’s
children, his Honour expressed some limits to the scope of the duty. His
Honour was of the view that the relevant event, in this case Mr Gifford’s
fatality, must be such as to likely cause psychiatric injury to a person of normal
fortitude.79 The notion of a ‘person of normal fortitude’ is a more limiting
formulation and would invariably discount the subjective reactions of each
individual child to a traumatic event.80
Implications
Despite Justice Callinan’s approach, it is evident that the High Court has
established that employers in certain circumstances will owe a duty of care to
avoid psychiatric injury being suffered by the children of their employers. In
our view, the duty owed to children is most likely to arise where the employer
is negligent in its separate duty to the employee. In that regard it is worth
noting that Justice Hayne expressed the view that Strang’s admission that it
had breached its duty of care to Mr Gifford had an important bearing as to
whether Strang breached its duty to Mr Strang’s children.81 Justices Gummow
and Kirby also added that it was arguable that as Strang had admitted negligence
toward Mr Gifford it had also breached the separate duties to his children.82
However, it is important to note that the High Court did not determine
if Strang was liable. This matter was remitted to the District Court for
determination.
If anything, Gifford’s case underscores the absolute necessity for employers to
provide a safe place of work, the absence of which will no doubt lead to an ever
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increasing scope of liability. In that sense, while the extension of an employer’s
duty of care to employees’ children may be considered novel, it is in our view an
expression of contemporary concerns of workplace safety.
A
DEVELOPING PROVINCE FOR LABOUR LAW
In recent times, there has been an increased use of the provisions of the Trade
Practices Act 1974 (Cwlth) (the TPA) to litigate employment and related matters.83
However, these types of applications have been relatively rare when considered
in context of all other employment and related litigation.
Aside from the secondary boycott provisions, there are two sections of the TPA
that may be applied to employment related matters. The most directly relevant
provision is section 53B, which provides that a corporation must not engage in
conduct that is liable to mislead persons seeking employment as to the availability,
nature, terms or conditions of, or any other matter relating to, the employment.
The other relevant provision, section 52, provides that corporations must not
engage in misleading and deceptive conduct in the course of trade and commerce.
However, there have been a number of limitations circumscribing the utility
of these provisions, especially in relation to section 52 of the TPA.84 These
matters were considered in David Walker v Salomon Smith Barney.85
The decision arose from negotiations between one broking firm, County
Natwest Securities Pty Limited (Natwest) and Mr Walker, who was employed
by another broking firm, ABN AMRO.86 Negotiations between Mr Walker and
Natwest were facilitated by a recruitment consultant, Ms Lancaster.87 The
negotiations commenced in or about November 1997 and extended over a
number of months. During this time Natwest announced that its business would
be sold.88 Initially there was no certainty as to the potential purchaser, but
eventually it was announced that the business would be sold to Salomon
Smith Barney Australia Pty Limited (SSB).89 Also during this time, Mr Walker’s
employer, ABN AMRO, announced that it would be offering voluntary
redundancies.90
During negotiations, Mr Walker had communicated to Natwest’s representatives, Mr Fulton and Mr Thomas, that he intended to remain employed with
ABN AMRO until he received a bonus that was due to him in early 1998, and
he further intended to remain employed by ABN AMRO until he could apply
for a voluntary redundancy and negotiate severance payments.91
After a number of discussions and two previous offers being made Mr Fulton
and Mr Thomas handed Mr Walker a third letter of offer during a meeting on
15 January 1998.92 The letter of offer to Mr Walker did not specify a commencement date.93 Justice Kenny however, found that during the meeting on 15 January
1998 an agreement was reached that Mr Walker would commence employment
by or on 15 March 1998.94
Mr Walker signed the letter of offer on 16 January 1998 and then forwarded
it to Ms Lancaster.95
Then, in a meeting on 20 February 1998, it was found that Mr Fulton advised
Mr Walker that the position offered to him was no longer available as he had
received adverse reports about Mr Walker’s capacity for the position.96 However,
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Mr Fulton advised that it was likely that Mr Walker would be offered a position
in the Corporate Finance Department.97
Mr Walker commenced proceedings claiming amongst other things that
Natwest made misleading and deceptive representations in breach of sections
52 and 53B of the TPA.
Justice Kenny considered Mr Walker’s claims under section 52. Her Honour
referred to previous authorities and found that statements made within the course
of employment negotiations were capable of falling within section 52 of the TPA.98
That is, employment negotiations were capable of being characterised as being
within trade and commerce.99
Justice Kenny then considered each of the matters that Mr Walker alleged
were misleading and deceptive. In doing so, her Honour noted that a
number of representations alleged to have been made by Natwest related to
future events. In relation to representations as to future matters her Honour
considered the interaction of sections 51A and 52 of the TPA and stated
as follows:
Where a corporation makes a representation with respect to a future matter without
reasonable grounds for making the representation, s 51A deems the representation
to be misleading for the purposes of s 52. As Hill J said in Ting v Blanche (1993)
118 ALR 543 (“Ting v Blanche”), at 552:
What s 51A does, in a practical sense, in cases where it applies, is to cast the burden
of proof upon the respondent corporation who has made a representation about a
future matter to show that in making that representation it had reasonable grounds
for so doing.100
In other words, where a representation is said to have related to a future
matter the employer must show that it had reasonable grounds for making the
representation.
Justice Kenny then applied these principles to the representations alleged to
have been made by Natwest. The first allegation was that on 5 November 1997,
Mr Fulton said to Mr Walker that the position offered to him would continue
despite the change in ownership of Natwest.101 As this was a representation as
to a future matter, Justice Kenny considered whether there was reasonable basis
for Mr Fulton to have made the statement.102 Her Honour found that ostensibly
there may have been no reasonable basis for Mr Fulton to make the representation because at that time, 5 November 1997, Mr Fulton did not have any
information about the nature of the sale and the identity of the potential
purchaser.103 However, Justice Kenny found that Mr Walker did not rely on this
statement to his detriment as this statement did not induce him to enter into a
contract or take other steps potentially to his detriment.104 Her Honour’s
views were that Mr Walker did not take these steps until after the meeting on
15 January 1998.105 Her Honour further held that Mr Walker, as an experienced
businessman, would have known that Mr Fulton could not have been certain about
future permutations of the sale of Natwest as a potential purchaser had not been
identified at that time.106
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The second representation alleged to have been made was that Mr Fulton and
Mr Thomas had said to Mr Walker that he could commence employment one
month after he gave notice of termination to ABN AMRO.107 Justice Kenny
rejected this claim because Mr Walker agreed in a meeting on 15 January 1998
that he would commence on 15 March 1998.108 Her Honour further found there
was nothing misleading in the representations made by Natwest because
Mr Fulton and Mr Thomas reasonably expected Mr Walker would receive his
bonus on 15 February 1998 and then give one month’s notice to ABN AMRO.109
Her Honour also found that in any case even if Mr Walker had relied on these
dates to his detriment, any such reliance ended on 17 February 1998 when
Mr Walker agreed with Mr Fulton to commence on 2 March 1998.110
The third representation alleged to have been made was that Mr Fulton
represented that Mr Walker’s salary would be $275 000 per annum with a
minimum bonus of $250 000 per annum.111 Justice Kenny found that the
representations were made as they were contained in the offer of employment
made to Mr Walker.112 However, her Honour found that promissory statements
of this kind cannot be held to be misleading under sections 52 or 53B of the TPA
merely because they were not performed.113 The promissory statements lacked
the fundamental ingredient of being inaccurate, misleading or deceptive as they
were in fact promises that were incorporated in the ultimate contract.114 The
appropriate remedy for those type of statements was breach of contract.
The fourth representation alleged to have been made was that on 13 February
1998, after SSB had been announced as the purchaser of Natwest, Mr Fulton
represented to Mr Walker that he would be employed after the sale on the same
terms and conditions that had been previously agreed.115 Justice Kenny found
Mr Walker had no reasonable basis for making this statement.116 Her Honour
said:
In the circumstances as they then existed, Natwest’s conduct at this meeting was,
however, extraordinary; and I doubt that Mr Fulton genuinely believed in much of
what he said to Mr Walker at the time. Further, in a subsequent letter to Mr Walker,
also dated 20 February 1998, Natwest referred to the sale as a “fundamental change”
that had occurred since early February 1998 and indicated that the sale was a
factor in the “withdrawal” of its offer of employment to Mr Walker. At trial, the
respondents gave no acceptable explanation for this reference to the sale in this
letter.117
Her Honour found that Mr Walker had relied on this statement to his
detriment because he pursued a severance package with ABN AMRO and took
other steps to leave his employment speedily. Her Honour concluded that it was
unnecessary to consider whether this was also a breach of section 53B of the TPA
as it was a breach of section 52.118
The fifth representation alleged to have been made was that on 20 February
1998 Mr Fulton represented that there were other positions available within
SSB and it was likely that Mr Walker would be offered a position in the
Corporate Finance Department.119 Her Honour found that there was no
evidence that any thought had been given to a specific position to be offered
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to Mr Walker and in fact at that time the Corporate Finance Department
was being restructured.120 Justice Kenny found that Mr Walker relied on
this representation to his detriment in that he had sought to secure a position
within the Corporate Finance Department between 20 February 1998 and
20 March 1998.121
Her Honour directed the parties to present further evidence as to the damages
suffered by Mr Walker as a result of the misleading and deceptive conduct. This
question has not yet been decided.
Implications
The above case highlights that while there may still be some uncertainty in
the application of the TPA to employment matters, recent judgments tend to
display a more consistent sentiment amongst the judiciary that employment
negotiations are ‘trading or commercial ’ in character. However, the case also
demonstrates that proving a representation is false or misleading can be difficult.
If representations relate to future matters, evidence will need to be advanced
as to whether there was a reasonable basis for making the statement. Finally,
evidence will also be required as to whether the employee relied on the
representations to his or her detriment.
Notwithstanding these limitations, the decision demonstrates that corporations
involved in workplace negotiations may have to alter, or be more cautious, in
their negotiation strategies in order to avoid future liability under the TPA.
COMMON
LAW RIGHT TO PRIVACY?
Australian laws relating to the protection of privacy are at an embryonic
stage. In any case in so far as they apply to employment, they are fairly
limited as they mainly apply to the collection and handling of personal
information.
In a landmark decision, Senior Judge Skoien of the Queensland District Court
became the first Australian judge to recognise an actionable right of invasion of
privacy. Although the decision did not strictly arise in the context of an employment relationship, there may be some implications for employers and employees
alike.
In short, the facts were that Ms Grosse had known Mr Purvis from work they
had both undertaken for a non-profit organisation. Ms Grosse alleged that over
a number of years, Mr Purvis had loitered near her home and workplaces, spied
on her, trespassed on her property, engaged in unwelcome physical conduct, made
offensive phone calls to her, and engaged in generally offensive behaviour to her,
her friends and relatives.
On the evidence, Senior Judge Skoien found that Mr Purvis had engaged in
conduct that could be characterised as stalking.122 His Honour further found that
as a consequence of Mr Purvis’ conduct Ms Grosse had suffered from Post
Traumatic Stress Disorder (PTSD).123 While these matters were capable of
resolution on the evidence, the more difficult question was whether, aside from
criminal law, there was any basis at law to find that Mr Purvis could be held liable
for his conduct toward Ms Grosse.
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A tort of privacy?
It had been considered that the High Court decision in Victoria Park Racing
and Recreation Grounds Co Ltd v Taylor124 (Victoria Park) was authority for the
proposition that there was no common law right to privacy. However, Senior
Judge Skoien referred to the recent decision of the High Court in Australian
Broadcasting Corporation v Lenah Game Meat Pty Ltd125 (Lenah) in which the judges
of the High Court expressed the view that the Victoria Park decision had been
overstated in terms of its rejection of an actionable right to privacy. The judges
of the High Court suggested a reconsideration of a right to privacy at common
law may be necessary in the future. Senior Judge Skoien summarised the views
of the High Court judges in the Lenah decision as follows:
The Court made clear that the time was now right for consideration as to how and
to what extent privacy should be protected at common law in Australia. See the judgments of the Gleeson CJ at para 40 (“the law should be more astute than in the past
to identify and protect interests of a kind which fall within the concept of privacy”),
of Gummow and Hayne JJ (and Gaudron J) at para 132, and of Callinan J at
para 335.
At para 332 Callinan J said “. . . principles for an Australian tort of privacy . . . need
to be worked out on a case by case basis in a distinctly Australian context”. See also
Gummow and Hayne JJ at para 124.126
Having regard to the High Court decision in Lenah, Senior Judge Skoien
decided to take the ‘bold step’127 of formulating an actionable tort of privacy as
follows:
. . . In my view the essential elements would be:
a)
a willed act by the defendant,
b) which intrudes upon the privacy or seclusion of the plaintiff,
c)
in a manner which would be considered highly offensive to a reasonable person
of ordinary sensibilities,
d) and which causes the plaintiff detriment in the form of mental psychological or
emotional harm or distress or which prevents or hinders the plaintiff from doing
an act which she is lawfully entitled to do.128
Senior Judge Skoien did not find it necessary to consider whether any defences
ought to be formulated as in his opinion none would have been successful in the
present case.129 The Senior Judge proceeded to find that Mr Purvis breached the
tort of privacy and awarded Ms Gross an amount of $108 000 in compensation
for post-traumatic stress disorder, future economic loss, costs of treatment,
wounded feelings and vindicatory damages.130 Further amounts were ordered
to be paid for aggravated compensatory damages of $50 000131 and $20 000 as
exemplary damages as a punitive measure.132
A tort of harassment?
Senior Judge Skoien also considered whether there was an actionable tort of
harassment at common law. His Honour stated:
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All of what I have said in relation to the tort of invasion of privacy applies, I
consider, if the breach amounts to harassment (or stalking) as it has in this case.
Indeed, Gummow and Hayne JJ, (and Gaudron J) without dissent from the any other
member of the Court, recognised harassment as a possible developing tort, separate
and distinct from invasion of privacy. See para 123.
Gummow and Hayne JJ (and Gaudron JJ) saw as useful the discussion on this
separate and discreet cause of action for harassment by Todd in his chapter entitled
Protection of Privacy in Torts in the Nineties (1977) 174 at 200-204. Todd himself
expressly identifies stalking being “…an especially sinister activity” as conduct that
would be caught by this cause of action.
Todd formulated the possible cause of action thus:The courts will require evidence of unwanted harassing and annoying
conduct which the defendant knows or ought to know will cause fear or
distress to the victim and which is of such degree of seriousness that an
ordinary person should not reasonably be expected to endure it.133
Senior Judge Skoien found that the essential elements suggested by Todd were
made out in the present case, but that he did not need to decide whether such a
tort was a separate cause of action.134 In his Honour’s view the tort of harassment
was ‘merely an aggravated form of invasion of privacy’.135
Implications
At the time of writing, the decision had been appealed. It is therefore uncertain
whether Senior Judge Skoien’s reasoning will withstand scrutiny by superior
courts. Nevertheless, it is worth noting that the tort of invasion of privacy as
formulated by Senior Judge Skoien covers a much broader range of conduct
than is covered under current privacy legislation. To date, regulation of the
employment aspects of privacy legislation has centred upon the collection and
handling of personal information and workplace surveillance.
While we will have to wait for decisions of more superior courts before we
can appropriately assess the impact of Senior Judge Skoien’s decision, there is
little doubt that concerns of privacy will continue to be a pressing issue amongst
employers and employees.
CONCLUSION
In summary, the decisions reviewed by us reflect the expansion of the jurisdiction
of labour law. Current economic and social norms are resulting in an increasing
number of decisions that may be justifiably considered as novel. It is interesting
however, to observe that these decisions had a limited or tangential connection,
if any at all, to collective rights. In our view, it is becoming increasingly
apparent that under the present social and regulatory climate employers and
employees are more concerned with individual rights and obligations than
collective ones. This suggests that there is an ever increasing cultural challenge
ahead for collective organisations, which are no strangers to struggle of this type.
Indeed, the next 12 months may be significant for collective organisations with
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various test cases relating to redundancy standards, labour hire and transmission
of business expected to be decided.
REFERENCES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
See generally the objects as provided in section 3 of the Workplace Relations Act 1996 (Cwlth).
[2003] QDC 151 (Unreported).
(2003) 198 ALR 100.
(1991) 29 FCR 104; 99 ALR 735.
Fenwick-Colin (1992) Shooting for trouble? Contract labour hire in the Victorian building
industry. Australian Journal of Labour Law 5 (3), 237.
See also Cullen (2003) A servant and Two Masters? - The Doctrine of Joint Employment in
Australia. Australian Journal of Labour Law 16, 359.
Matthews v. Cool or Cosy Pty Limited; Ceil Comfort Home Insulation Pty Limited (2003) WAIRC
10399 (Unreported judgement of Sharkey P, Coleman CC, Gregor C, 24 December 2003).
[2003] NSWIRComm 1006 (Unreported, McKenna C, 3 March 2003)
ibid at p. 1.
ibid.
ibid at p. 2.
ibid at p. 2.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid at p. 1.
ibid at p. 2.
ibid at p. 4.
ibid at p. 12.
ibid at p. 10.
(2002) 117 IR 152.
ibid paras 73–74.
ibid para. 75.
Oanh Nguyen and A-N-T Contract Packers Pty Ltd trading as A-N-T Personnel and Thiess Services
Pty Ltd trading as Thiess Services [2003] NSWIRComm 1006 (Unreported judgement of
McKenna C, 3 March 2003) at p. 13.
ibid.
ibid.
(Unreported judgement of Lewin C, 12 September 2003, PR937820).
ibid at para. 16.
ibid at para. 50.
ibid at para. 21.
ibid at para. 2.
ibid.
(23 May 2000, Munro J, Duncan SDP and Jones C, PRS6212).
(1986) 160 CLR 16.
Josie Bianchi v Staff Aid Services (Unreported judgement, Lewin C, 12 September 2003,
PR937820) at para. 73.
Matthews v. Cool or Cosy Pty Limited; Ceil Comfort Home Insulation Pty Limited (2003) WAIRC
10399 (unreported judgement of Sharkey P, Coleman CC, Gregor C, 24 December 2003).
MAJOR TRIBUNAL DECISIONS
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
IN
2003
211
ibid at p.2.
ibid.
ibid at p. 35.
ibid at p. 25.
ibid at p. 34.
ibid.
ibid at p. 39.
ibid at p. 44
ibid at p. 35
ibid.
ibid.
ibid.
ibid.
ibid at p. 44.
ibid.
ibid.
(2003) 198 ALR 100.
ibid at p. 101.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid at pp. 101–02.
ibid at p. 102.
(2002) 191 ALR 449.
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100 at p. 114.
ibid at p. 122.
ibid.
ibid.
ibid.
ibid.
ibid at p. 103.
ibid at p. 123–4.
[1932] AC 562.
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100 at p. 114.
ibid.
ibid at p. 130.
ibid.
ibid at p. 127.
ibid at p. 124.
See O’Neill v Medical Benefits Fund of Australia (2002) 122 FCR 455; Stoelwinder v Southern
Health Care Network (2000) 177 ALR 501; McCormick v Riverwood International (Australia)
Pty Ltd (1999) 167 ALR 689; Martin v Tasmania Development & Resources (1999) 163 ALR 79.
See generally Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389.
[2003] FCA 1099 (unreported) (10 October 2003)
ibid at para. 5.
ibid at para. 12.
ibid at para. 28.
212
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
99.
100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
112.
113.
114.
115.
116.
117.
118.
119.
120.
121.
122.
123.
124.
125.
126.
127.
128.
129.
130.
131.
132.
133.
134.
135.
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ibid at para. 95.
ibid at para. 171.
ibid at paras 17 and 58.
ibid at para. 64.
ibid.
ibid at para. 78.
ibid at para. 81.
ibid at paras 120–35.
ibid at para. 213–15
ibid paras 180–5.
ibid at para. 185.
ibid at para. 178.
ibid at para. 189.
ibid at para. 190.
ibid.
ibid at para. 191.
ibid at para. 192.
ibid at para. 193.
ibid at para. 195.
ibid at
JOSEPH CATANZARITI* AND YASEEN SHARIFF**
T
he authors review the major decisions of the previous year. The review is focussed
upon decisions that in some way affected or are likely to affect individual rights
and obligations more so than collective ones. First, the article offers an analysis of
the concept of joint employment and its potential application in Australian courts and
tribunals. Second, the High Court’s ruling in respect of the duty owed by employers
to their employees’ children is considered. The authors comment that the decision is indicative of the ever expanding duty of care owed by employers. Third, the authors analyse
a decision that considers the application of the Trade Practices Act 1974 to employment
matters. Fourth, a decision of the Queensland District Court is reviewed because it is the
first decision of an Australian court recognising an actionable right to privacy. The authors
note that this decision is subject to appeal and therefore is likely to be scrutinised by
superior courts. Finally, the authors comment that the growth in the assertion of individual rights raises important cultural challenges for collective organisations, which are
likely to be ventilated in the next 12 months through some important test cases.
INTRODUCTION
In previous contributions to this journal we have reviewed a number of decisions
with some connection to collective rights and obligations. In the present
contribution we have focussed the greater part of our review to decisions
that either affect individual rights or decisions that in our view extended the
scope of labour law.
Our emphasis on decisions relating to individual rather than collective matters
reflects the increased number of decisions made by industrial courts and tribunals
relating to individual grievances. At a Federal level the emphasis on individual
rights and obligations is evident in the terms and underpinning philosophy
of the Workplace Relations Act 1996 (Cwlth)1. That does not however explain
the occurrence of similar phenomenon at a state level. As trite an observation as
it may be, it is our view that the increased ventilation of individual grievances is
perhaps indicative of contemporary legal, social and economic norms. To put it
another way, it is our view that the matters of most concern to employers and
employees (whether rightly or wrongly) are those affecting the individual rights
between them.
An apposite example of the assertion of individual rights was the decision in
Grosse v Purvis.2 In that case a senior judge of the Queensland District Court
found that there was an actionable right at common law of a tort of invasion of
privacy. While the decision was not strictly employment related, its implications
* Joseph Catanzariti, BA LLB, is a partner of national law firm Clayton Utz. Email: jcatanzariti@
claytonutz.com ** Yaseen Shariff, BEc (Social Sciences) LLB (Hons), is a solicitor of national law
firm Clayton Utz. Email: yshariff@claytonutz.com
THE JOURNAL OF INDUSTRIAL RELATIONS, VOL. 46, NO. 2, JUNE 2004, 195–212
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for the employment relationship could be significant. Another novel decision was
the High Court’s recognition in Gifford v Strang Patrick Stevedoring Pty Ltd 3
that an employer owed a duty to prevent psychiatric injury being suffered by the
children of a fatally injured employee. These decisions are worthy of review not
simply because they are novel, but because they exemplify a trend toward the
assertion of individual rights.
We have also considered recent decisions by tribunals relating to the notion
of joint employment. In our view, consideration of this notion seems timely given
the growth of various forms of arrangements for the hire and supply of labour.
While the concept of joint employment as a principle of law has not displaced
traditional legal doctrines, we are of the view that the concept may have further
application in the future.
Recently there have been a few employment related matters litigated under
the provisions of the Trade Practices Act 1974 (Cwlth). We have reviewed one such
decision of the last 12 months that reflects the scope and limitations of these types
of cases.
All of these decisions are indicative of the ongoing expansion of the reach of
labour law. The jurisdiction is by no means static and will continue to evolve in
the years to come.
TOWARD
A JOINT EMPLOYMENT PRINCIPLE?
Courts and tribunals have previously dealt with issues arising from labour hire
arrangements, most notably in the decision of BWIU v Odco Pty Ltd.4 The legal
concerns arising from that decision were addressed by Fenwick in Shooting for
trouble?: Contract labour hire in the Victorian building industry.5 Since that time,
the perennial issue for determination in most cases involving labour hire
arrangements remains the question of which entity, supplier or host, is the
relevant employer.6
As demonstrated in one case in the past 12 months, these questions may also
arise in the context of arrangements for the supply of labour within or amongst
related entities operating as a group of companies.7
In at least three decisions of the last 12 months, undercurrents of a shift in
judicial approach in determining these issues may be detected. Specifically,
the notion of joint employment has been canvassed as a more realistic
means by which to resolve issues arising from the hire and supply of labour.
While the notion of joint employment has not yet obtained the status of an
authoritative or applicable rule of law, there may be scope for such a status
in the future.
Thiess Services case
The first decision of note was that of Oanh Nguyen and A-N-T Contract
Packers Pty Ltd trading as A-N-T Personnel and Thiess Services Pty Ltd
trading as Thiess Services (the Thiess Services Case).8 The decision related
to A-N-T Personnel Contract Packers Pty Ltd (A-N-T), a labour hire agency,
which supplied the services of Ms Nguyen to Thiess Services Pty Limited
(Thiess).
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197
For a short period, Ms Nguyen was actually employed by Thiess.9 However,
after a shift or so she became an employee of A-N-T.10
During her engagement, Ms Nguyen became pregnant, but concealed her
pregnancy for as long as she could before informing her supervisor.11After this,
a dispute arose as to the work performed by Ms Nguyen, which she claimed
was more difficult and heavier than usual, and therefore inappropriate due to
her pregnancy.12 Thiess arranged a medical examination to be undertaken in
order to assess Ms Nguyen’s fitness for duty.13 The consequent medical report
identified Ms Nguyen as fit for duties until confinement, but with restrictions
as to lifting, pushing, pulling, bending and standing.14
Following the medical report, Ms Nguyen was stood down with pay. The
next day she was informed by a Thiess manager that she could not return to work
for Thiess.15 Thiess then notified A-N-T that Ms Nguyen’s services were no
longer required as she was not fit for duty. Ms Nguyen never worked for Thiess
again.16
Ms Nguyen appears not to have provided any further services on behalf of
A-N-T.17 A-N-T did offer her some work within their own business in a
quasi-clerical role after proceedings were commenced.18 At some later time,
Ms Nguyen requested a separation certificate from A-N-T in order to enable
her to obtain social security benefits.19
Ms Nguyen commenced unfair dismissal proceedings against both A-N-T and
Thiess pursuant to section 84 of the Industrial Relations Act 1996 (NSW).20
A-N-T and Thiess made similar contentions. The first being that Thiess was
not the employer and the second being that there had been no termination by
either A-N-T or Thiess.21
Commissioner McKenna of the Industrial Relations Commission of New South
Wales (the NSW Commission) found there had been a termination of the relationship and that this termination had been initiated by Thiess. Commissioner
McKenna found as follows:
The applicant was moved from her usual duties at Chullora by Thiess; the applicant
was directed by Thiess to attend a medical examination with a doctor specified
by Thiess, the applicant was stood-down from a shift by Thiess, with pay;
thereafter, the applicant was not permitted to work again for Thiess at Chullora
on the grounds of unfitness, contrary to her stated wishes to continue working.
I am satisfied that the cessation of ongoing work for the applicant at Chullora
amounted to a “dismissal” within its ordinary meaning . . . After the applicant’s work
at Chullora ceased at Thiess’s initiative, all that was left was the empty husk of a
relationship with ANT . . .22
Turning to the question of which one of A-N-T or Thiess was the employer
of Ms Nguyen, Commissioner McKenna noted that in the ordinary case, the
labour hire company would be regarded as the employer. However, the
Commissioner was of the view that the arrangement in the present instance was
atypical.23
Ms Nguyen’s representatives argued that A-N-T and Thiess were joint
employers and that both ought to be liable for the termination with the
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quantum of the liability apportioned in accordance with their level of
culpability.24 Commissioner McKenna had regard to authorities dealing with
the issue of joint employment including Morgan v Kittochside (Kittochside)25
wherein a Full Bench of the Australian Industrial Relations Commission
(AIRC) explained the applicability and notion of joint employment in the
ollowing way:
So far as we are aware, the notion of joint employment has thus far not been
the subject of rulings or dicta by any Australian Court. The compatibility of the
notion with the common law concept of employment based on the master servant
relationship is therefore moot.
The doctrine of joint employment or joint employers, is well established in labour
law in the United States. It appears to have been a response to the use of labour hire
arrangements by employers in circumstances that conduced to an avoidance of labour
regulation and employee protections.26
In concluding, the Full Bench stated:
It is not necessary for us to further explore the compatibility of a joint employer
principle with, or its applicability to, the employment relationship that exists between
Ms Morgan, Kittochside and Mr Reid trading as Northam Pharmacy. Were it
necessary to do so, we would incline to the view that no substantial barrier should
exist to accepting that a joint employment relationship might be found to exist and
given effect for certain purposes under the Act.27
Similarly, Commissioner McKenna in the Thiess Services Case held:
I have not, however, been persuaded that there is presently substantial or clear
authority for reaching a conclusion as to joint employment. 28
However, Commissioner McKenna stated that if a concept of joint employment
was applicable, then, in her view, this was a case in which A-N-T and Thiess
would be held to be joint employers.29
Commissioner McKenna proceeded to find that Thiess was nevertheless the
relevant employer of Ms Nguyen:
. . . it was Thiess which was the actual, or real and effective, employer of the applicant
and Thiess which harshly, unreasonably and unjustly dismissed the applicant. While
there was evidence of some interaction between the Applicant and ANT of the type
associated with a labour hire company and one of its employees, I accept Mr Penning’s
submission that the relationship between the applicant and ANT was minimal.
ANT had no real or effective involvement or control in any aspect of the applicant’s
recruitment, day-to-day employment and dismissal . . .30
Staff Aid case
The second noteworthy decision was that of Commissioner Lewin in Josie Bianchi
v Staff Aid Services31 (the Staff Aid Case). Staff Aid provided the services of the
applicant, Ms Bianchi, to Coles Myer (Coles). Ms Bianchi signed a contract with
Staff Aid on 12 February 2002, which stated that the company offered to engage
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199
her to provide ‘independent contractor services’ for Coles.32 The agreement
further provided that Staff Aid could terminate her services if she was no longer
required by Coles.33
According to evidence before the AIRC, Coles apparently became dissatisfied
with Ms Bianchi’s work performance, and on 5 December 2002, informed Staff
Aid that it would be terminating its relationship with Ms Bianchi.34
Ms Bianchi brought an action for unfair dismissal under section 170CE of the
Workplace Relations Act 1996 (Cwlth) against Staff Aid. Staff Aid argued that the
applicant was prevented from bringing the action since she was not employed
by Staff Aid.35 Staff Aid argued that it acted as a recruitment consultant, which
facilitated the engagement of Ms Bianchi as an independent contractor providing
services to Coles.36
Commissioner Lewin determined that Staff Aid was the employer by reference
to the test established in Sammartino v Mayne Nickless Express t/a Wards Skyroad,37
which in turn had been guided by the seminal decision in Stevens v Brodribb
Sawmilling Co Pty Ltd.38 The Commissioner however made an important
observation:
Had I not arrived at the conclusion above, in accordance with the decision in
Morgan v Kittochside, I would have been compelled to find that there was a shared
responsibility for an employment relationship as been Staff Aid Services and Coles
Myer. If that be correct the application would not be excluded from the jurisdiction
if only one of the parties were named as respondent.39
Joint employment in Cool or Cosy group arrangements
The third in the trilogy of cases in the past 12 months dealing with the
notion of joint employment arose in a different context to that of labour
hire arrangements. In the decision of Matthews v. Cool or Cosy Pty Limited; Ceil
Comfort Home Insulation Pty Limited40 an unfair dismissal action was commenced
by Mr Matthews under section 29(1)(b)(i) of the Industrial Relations Act
(1979) (WA). The action was commenced against a number of related
entities, namely Cool or Cosy Pty Limited (Cool or Cosy), Ceil Comfort
Home Insulation Pty Limited (Ceil) and Citigroup Pty Limited (Citigroup).41
The action against Citigroup was subsequently withdrawn (this company had
gone into liquidation).42
One of the main issues in the proceedings was whether Mr Matthews was
employed by Cool or Cosy, Ceil, Citigroup or some other related entity.43
At first instance, Mr Matthews’ application was dismissed on a number of
grounds including that neither Cool or Cosy nor Ceil employed Mr Matthews.44
This decision was then appealed to the Full Bench of the Western Australian
Industrial Relations Commission (WAIRC).
President Sharkey (with whom Chief Commissioner Coleman and
Commissioner Gregor concurred) found that there was a large degree of
interconnectedness between the entities and other related bodies.45 For
example, every company within the group of companies had the same four
directors, except for Citigroup.46
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It was argued by the respondents that Citigroup employed Mr Matthews.47
Ultimately, President Sharkey found that Ceil was the relevant employer.48
Amongst other things, his Honour took into account the following factors:
(a) Mr Matthews was initially engaged on 14 August 1995 as a State Manager
on the letterhead of COC Pty Ltd (another related entity).49
(b) On 13 March 1996, Mr Matthews’ appointment as General Manager/Sales
Manager was reported on the Ceil letterhead.50
(c) A prize for performance of $4000 was awarded to Mr Matthews in 1997 and
the cheque was drawn by COC Pty Ltd (COC).51
(d) In 1998, COC purchased a motor vehicle for Mr Matthews’ use and the hire
purchase and lease payments were made by COC.52
(e) The AMP Superannuation Trust Statement named Cool or Cosy as the
employer.53
(f) On 19 October 1999, an announcement was made on Ciel letterhead that
Mr Matthews was appointed as the General Manager for New South Wales,
Western Australia and Tasmania.
(g) Mr Matthews’ Group Certificate for 2000/2001 named the employer as Cool
or Cosy Natural Insulation. It was found that no proof that such a company
existed at that time or at all. A further Group Certificated for 2000/2001
named COC as the employer.
(h) Ceil paid Mr Matthews consultancy fees, but his salary was paid by COC.
(i) In early October 2000, Mr Matthews received a taxation employment
declaration indicating that the employer was Citigroup. However, there
was evidence that this was done to use Citigroup as the corporate vehicle
to distribute costs through the group of companies.
(j) Shortly after October 2000, contracts of employment were drafted, but never
executed. These contracts identified Ceil as the employer.
(k) An accident and sickness insurance policy was also procured for Mr Matthews
by Ceil. There was an admission made that Ceil was paying the premiums
on this policy as he was a ‘key employee’ of Ceil.
(l) Mr Matthews’ final pay summary was issued by Citigroup as was the final
Group Certificate.
(m)The letter of dismissal given to Mr Matthews was written on Cool or Cosy
letterhead.
Importantly, President Sharkey also gave weight to the fact that when some
directors held an unofficial meeting to inter alia discuss Mr Matthews’ position,
they could not have done so on behalf of Citigroup; they were not directors of
Citigroup and would have had no authority to make a decision on behalf of
Citigroup.
Having regard to these matters, and reference to the sources of control exerted
over Mr Matthews and the actual work he performed within the various related
organisations, President Sharkey concluded that Mr Mathews’ employer was Ceil
not Citigroup.54
His Honour proceeded to state that if he was incorrect in finding Ceil to be
the employer, he would have found that Mr Matthews was in fact an employee
of the group and no one particular entity:
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Unquestionably, on the evidence, after October 2000, Mr Matthews was employed
as the national general manager of the domestic operations of the Cool or Cosy
Group. That is, he had responsibility for the operations of each Cool or Cosy Group
company in each State . . .
It is trite to observe that Mr Matthews did not act and could not act as
national general manager of one company, be it Ceil or COC Pty Ltd. In fact,
he did not. There was ample evidence that Mr Matthews, as national general
manager, was an integral part of the group and was controlled by the CEO and
the other directors. There was evidence of his being remunerated throughout
by various companies in the group, the employees of which he indubitably
was. The group itself, in reality, was a firm or partnership of companies each
controlled by the same directors and acting as one. Mr Matthews was, in fact, a
group employee. That means that he served every company, as members of the
group, in the domestic operations. This means that every company in the
group employed Mr Matthews and that he was directed by the CEO, who was
also the managing director of each company in the group, on behalf of the
companies in the group and that the directors, when they dismissed Mr Matthews,
acted for an on behalf of the group, as, on the evidence, they plainly did. He
was therefore dismissed by or on behalf of every company in the domestic
operations if the group, it is open to find, if it is wrong to have found that he was
employed by Ceil.55
His Honour further stated that these facts could have warranted a piercing of
the corporate veil.56To that end, the decision in the Cool or Cosy case opens
some scope to argue, at least in the context of group entities, that the notion
of joint employment can in fact be reconcilable with existing legal notions of
piercing the corporate veil.
At the time of writing, an appeal had been lodged in relation to this decision.
Implications
In each of the cases discussed above, the relevant tribunal was able to determine
the issue by reference to traditional legal tests. However, in each case, the concept
of joint employment was applied and found to be of merit even though it was
not decisive.
The application of the joint employment concept on a case-by-case basis may
lead to a far more realistic assessment of the commercial and legal risks shared
between organisations trading in the supply of labour. This may arguably be a
more cogent approach to present legal doctrines. Currently, there appears to be
no authoritative basis for the application and extension of the joint employment
concept. Despite this, it is our view that through a natural progression of
judicial deliberation, the concept of joint employment may be applied in a
decisive manner in the future.
In any event we are of the opinion that statutory intervention into
these matters would be highly desirable to clarify the position for practitioners,
and more importantly for employers and employees.
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EVER EXPANDING DUTY OF CARE
The duty of care owed by employers is ever expanding. The High Court’s
decision in Gifford v Strang Patrick Stevedoring Pty Ltd57 (Gifford’s Case) provides
another example of the increased duties imposed by the law upon employers. In
that decision, the judges of the High Court found that an employer owed a duty
of care to the children of a fatally injured employee.
Mr Gifford was employed as a wharf labourer and wharf clerk by Strang Patrick
Stevedoring Pty Ltd (Strang).58 He was fatally crushed in a forklift accident.59
Strang admitted that they had been negligent in not providing a safe place of
work for Mr Gifford.60 Mr Gifford’s three children were aged 19, 17 and 14.61
The children claimed they suffered psychiatric injury in consequence of finding
out their father’s fate.62 They sought damages for the alleged psychiatric injury
they had suffered as a result of Strang’s alleged negligence.63
The primary issue at dispute was whether Strang owed a duty of care to
Mr Gifford’s children to avoid their suffering psychiatric harm.64
In the past courts have held that the duty owed by one party to avoid psychiatric
injury to another party could only arise if the other party had a direct perception
of an incident negligently caused by the first party or its immediate aftermath.
These were known as nervous shock cases.
In accord with those cases, the New South Wales District Court at first
instance, and then the New South Wales Court of Appeal, dismissed the
claims made by Mr Gifford’s children on grounds that they did not directly
perceive the event that resulted in the death of their father or its immediate
aftermath.65 It was therefore held that Strang did not owe Mr Gifford’s
children a duty of care at common law for any psychiatric injury they had
suffered.66
Both the District Court and the Court of Appeal made their decisions prior
to the High Court’s decisions in Tame v New South Wales and Annetts v Australian
Stations Pty Ltd.67 In those cases, the High Court effectively overturned previous
authority and found that direct perception or attendance at the immediate aftermath of an incident is not always a necessary aspect of a claim for damages for
negligently inflicted psychiatric injury.
Applying this same reasoning the judges of the High Court in Gifford’s
Case found that it was reasonable for Strang to foresee that Mr Gifford’s
children could suffer psychiatric injury as a result of its negligent acts or
omissions.68 In arriving at the conclusion that the employer, Strang, owed this
duty to the children, Justices Gummow and Kirby had regard to what they
described as the ‘general public sentiment’,69 which was influenced by the
following factors:
(a) the work of the employee, Mr Gifford, advanced the business of the
employer;70
(b) the employee could be exposed to the risk of death in consequence of the
employer’s carelessness;71 and
(c) therefore, it was reasonably foreseeable that psychiatric injury could be
suffered on the part of the employee’s children in the event of the employee’s
death. 72
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That is, their Honours reasoned that since the employer, Strang, had exposed
Mr Gifford to the risk of serious injury, then, Strang ought to have also contemplated that Mr Gifford’s children could suffer psychiatric injury if a serious
injury did occur to the employee.73
Chief Justice Gleeson found that children were a class of persons that were
in a relationship of ‘natural love and affection’ to another class of persons, their
parents.74 Similarly, Justices Gummow and Kirby held that given employers
could expose employees (who are parents) to risk of injury, then, it was not
unreasonable for employers to have in contemplation the risk of consequent
psychiatric injury to the children of those employees.75
The most expansive judgment of the High Court was that of Justice McHugh.
Relying on the iconic neighbourhood principle enunciated by Lord Atkin in
Donoghue v Stevenson,76 Justice McHugh found that there was no policy reason
why the duty of an employer who was negligent toward an employee could not
extend to a duty to all those people who have a ‘close and loving’ relationship with
the employee.77 Under this broader approach, the practical result could be
that an employer’s duty could be extended to close relatives or friends of their
employees. In the present instance, Justice McHugh found:
. . . a reasonable employer in the position of Strang was bound to have in mind that
any harm cause to its employees carried the risk that it would caused psychiatric
harm to any children that he might have when they learned of his death.78
Although Justice Callinan agreed that Strang owed a duty to Mr Gifford’s
children, his Honour expressed some limits to the scope of the duty. His
Honour was of the view that the relevant event, in this case Mr Gifford’s
fatality, must be such as to likely cause psychiatric injury to a person of normal
fortitude.79 The notion of a ‘person of normal fortitude’ is a more limiting
formulation and would invariably discount the subjective reactions of each
individual child to a traumatic event.80
Implications
Despite Justice Callinan’s approach, it is evident that the High Court has
established that employers in certain circumstances will owe a duty of care to
avoid psychiatric injury being suffered by the children of their employers. In
our view, the duty owed to children is most likely to arise where the employer
is negligent in its separate duty to the employee. In that regard it is worth
noting that Justice Hayne expressed the view that Strang’s admission that it
had breached its duty of care to Mr Gifford had an important bearing as to
whether Strang breached its duty to Mr Strang’s children.81 Justices Gummow
and Kirby also added that it was arguable that as Strang had admitted negligence
toward Mr Gifford it had also breached the separate duties to his children.82
However, it is important to note that the High Court did not determine
if Strang was liable. This matter was remitted to the District Court for
determination.
If anything, Gifford’s case underscores the absolute necessity for employers to
provide a safe place of work, the absence of which will no doubt lead to an ever
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increasing scope of liability. In that sense, while the extension of an employer’s
duty of care to employees’ children may be considered novel, it is in our view an
expression of contemporary concerns of workplace safety.
A
DEVELOPING PROVINCE FOR LABOUR LAW
In recent times, there has been an increased use of the provisions of the Trade
Practices Act 1974 (Cwlth) (the TPA) to litigate employment and related matters.83
However, these types of applications have been relatively rare when considered
in context of all other employment and related litigation.
Aside from the secondary boycott provisions, there are two sections of the TPA
that may be applied to employment related matters. The most directly relevant
provision is section 53B, which provides that a corporation must not engage in
conduct that is liable to mislead persons seeking employment as to the availability,
nature, terms or conditions of, or any other matter relating to, the employment.
The other relevant provision, section 52, provides that corporations must not
engage in misleading and deceptive conduct in the course of trade and commerce.
However, there have been a number of limitations circumscribing the utility
of these provisions, especially in relation to section 52 of the TPA.84 These
matters were considered in David Walker v Salomon Smith Barney.85
The decision arose from negotiations between one broking firm, County
Natwest Securities Pty Limited (Natwest) and Mr Walker, who was employed
by another broking firm, ABN AMRO.86 Negotiations between Mr Walker and
Natwest were facilitated by a recruitment consultant, Ms Lancaster.87 The
negotiations commenced in or about November 1997 and extended over a
number of months. During this time Natwest announced that its business would
be sold.88 Initially there was no certainty as to the potential purchaser, but
eventually it was announced that the business would be sold to Salomon
Smith Barney Australia Pty Limited (SSB).89 Also during this time, Mr Walker’s
employer, ABN AMRO, announced that it would be offering voluntary
redundancies.90
During negotiations, Mr Walker had communicated to Natwest’s representatives, Mr Fulton and Mr Thomas, that he intended to remain employed with
ABN AMRO until he received a bonus that was due to him in early 1998, and
he further intended to remain employed by ABN AMRO until he could apply
for a voluntary redundancy and negotiate severance payments.91
After a number of discussions and two previous offers being made Mr Fulton
and Mr Thomas handed Mr Walker a third letter of offer during a meeting on
15 January 1998.92 The letter of offer to Mr Walker did not specify a commencement date.93 Justice Kenny however, found that during the meeting on 15 January
1998 an agreement was reached that Mr Walker would commence employment
by or on 15 March 1998.94
Mr Walker signed the letter of offer on 16 January 1998 and then forwarded
it to Ms Lancaster.95
Then, in a meeting on 20 February 1998, it was found that Mr Fulton advised
Mr Walker that the position offered to him was no longer available as he had
received adverse reports about Mr Walker’s capacity for the position.96 However,
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Mr Fulton advised that it was likely that Mr Walker would be offered a position
in the Corporate Finance Department.97
Mr Walker commenced proceedings claiming amongst other things that
Natwest made misleading and deceptive representations in breach of sections
52 and 53B of the TPA.
Justice Kenny considered Mr Walker’s claims under section 52. Her Honour
referred to previous authorities and found that statements made within the course
of employment negotiations were capable of falling within section 52 of the TPA.98
That is, employment negotiations were capable of being characterised as being
within trade and commerce.99
Justice Kenny then considered each of the matters that Mr Walker alleged
were misleading and deceptive. In doing so, her Honour noted that a
number of representations alleged to have been made by Natwest related to
future events. In relation to representations as to future matters her Honour
considered the interaction of sections 51A and 52 of the TPA and stated
as follows:
Where a corporation makes a representation with respect to a future matter without
reasonable grounds for making the representation, s 51A deems the representation
to be misleading for the purposes of s 52. As Hill J said in Ting v Blanche (1993)
118 ALR 543 (“Ting v Blanche”), at 552:
What s 51A does, in a practical sense, in cases where it applies, is to cast the burden
of proof upon the respondent corporation who has made a representation about a
future matter to show that in making that representation it had reasonable grounds
for so doing.100
In other words, where a representation is said to have related to a future
matter the employer must show that it had reasonable grounds for making the
representation.
Justice Kenny then applied these principles to the representations alleged to
have been made by Natwest. The first allegation was that on 5 November 1997,
Mr Fulton said to Mr Walker that the position offered to him would continue
despite the change in ownership of Natwest.101 As this was a representation as
to a future matter, Justice Kenny considered whether there was reasonable basis
for Mr Fulton to have made the statement.102 Her Honour found that ostensibly
there may have been no reasonable basis for Mr Fulton to make the representation because at that time, 5 November 1997, Mr Fulton did not have any
information about the nature of the sale and the identity of the potential
purchaser.103 However, Justice Kenny found that Mr Walker did not rely on this
statement to his detriment as this statement did not induce him to enter into a
contract or take other steps potentially to his detriment.104 Her Honour’s
views were that Mr Walker did not take these steps until after the meeting on
15 January 1998.105 Her Honour further held that Mr Walker, as an experienced
businessman, would have known that Mr Fulton could not have been certain about
future permutations of the sale of Natwest as a potential purchaser had not been
identified at that time.106
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The second representation alleged to have been made was that Mr Fulton and
Mr Thomas had said to Mr Walker that he could commence employment one
month after he gave notice of termination to ABN AMRO.107 Justice Kenny
rejected this claim because Mr Walker agreed in a meeting on 15 January 1998
that he would commence on 15 March 1998.108 Her Honour further found there
was nothing misleading in the representations made by Natwest because
Mr Fulton and Mr Thomas reasonably expected Mr Walker would receive his
bonus on 15 February 1998 and then give one month’s notice to ABN AMRO.109
Her Honour also found that in any case even if Mr Walker had relied on these
dates to his detriment, any such reliance ended on 17 February 1998 when
Mr Walker agreed with Mr Fulton to commence on 2 March 1998.110
The third representation alleged to have been made was that Mr Fulton
represented that Mr Walker’s salary would be $275 000 per annum with a
minimum bonus of $250 000 per annum.111 Justice Kenny found that the
representations were made as they were contained in the offer of employment
made to Mr Walker.112 However, her Honour found that promissory statements
of this kind cannot be held to be misleading under sections 52 or 53B of the TPA
merely because they were not performed.113 The promissory statements lacked
the fundamental ingredient of being inaccurate, misleading or deceptive as they
were in fact promises that were incorporated in the ultimate contract.114 The
appropriate remedy for those type of statements was breach of contract.
The fourth representation alleged to have been made was that on 13 February
1998, after SSB had been announced as the purchaser of Natwest, Mr Fulton
represented to Mr Walker that he would be employed after the sale on the same
terms and conditions that had been previously agreed.115 Justice Kenny found
Mr Walker had no reasonable basis for making this statement.116 Her Honour
said:
In the circumstances as they then existed, Natwest’s conduct at this meeting was,
however, extraordinary; and I doubt that Mr Fulton genuinely believed in much of
what he said to Mr Walker at the time. Further, in a subsequent letter to Mr Walker,
also dated 20 February 1998, Natwest referred to the sale as a “fundamental change”
that had occurred since early February 1998 and indicated that the sale was a
factor in the “withdrawal” of its offer of employment to Mr Walker. At trial, the
respondents gave no acceptable explanation for this reference to the sale in this
letter.117
Her Honour found that Mr Walker had relied on this statement to his
detriment because he pursued a severance package with ABN AMRO and took
other steps to leave his employment speedily. Her Honour concluded that it was
unnecessary to consider whether this was also a breach of section 53B of the TPA
as it was a breach of section 52.118
The fifth representation alleged to have been made was that on 20 February
1998 Mr Fulton represented that there were other positions available within
SSB and it was likely that Mr Walker would be offered a position in the
Corporate Finance Department.119 Her Honour found that there was no
evidence that any thought had been given to a specific position to be offered
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to Mr Walker and in fact at that time the Corporate Finance Department
was being restructured.120 Justice Kenny found that Mr Walker relied on
this representation to his detriment in that he had sought to secure a position
within the Corporate Finance Department between 20 February 1998 and
20 March 1998.121
Her Honour directed the parties to present further evidence as to the damages
suffered by Mr Walker as a result of the misleading and deceptive conduct. This
question has not yet been decided.
Implications
The above case highlights that while there may still be some uncertainty in
the application of the TPA to employment matters, recent judgments tend to
display a more consistent sentiment amongst the judiciary that employment
negotiations are ‘trading or commercial ’ in character. However, the case also
demonstrates that proving a representation is false or misleading can be difficult.
If representations relate to future matters, evidence will need to be advanced
as to whether there was a reasonable basis for making the statement. Finally,
evidence will also be required as to whether the employee relied on the
representations to his or her detriment.
Notwithstanding these limitations, the decision demonstrates that corporations
involved in workplace negotiations may have to alter, or be more cautious, in
their negotiation strategies in order to avoid future liability under the TPA.
COMMON
LAW RIGHT TO PRIVACY?
Australian laws relating to the protection of privacy are at an embryonic
stage. In any case in so far as they apply to employment, they are fairly
limited as they mainly apply to the collection and handling of personal
information.
In a landmark decision, Senior Judge Skoien of the Queensland District Court
became the first Australian judge to recognise an actionable right of invasion of
privacy. Although the decision did not strictly arise in the context of an employment relationship, there may be some implications for employers and employees
alike.
In short, the facts were that Ms Grosse had known Mr Purvis from work they
had both undertaken for a non-profit organisation. Ms Grosse alleged that over
a number of years, Mr Purvis had loitered near her home and workplaces, spied
on her, trespassed on her property, engaged in unwelcome physical conduct, made
offensive phone calls to her, and engaged in generally offensive behaviour to her,
her friends and relatives.
On the evidence, Senior Judge Skoien found that Mr Purvis had engaged in
conduct that could be characterised as stalking.122 His Honour further found that
as a consequence of Mr Purvis’ conduct Ms Grosse had suffered from Post
Traumatic Stress Disorder (PTSD).123 While these matters were capable of
resolution on the evidence, the more difficult question was whether, aside from
criminal law, there was any basis at law to find that Mr Purvis could be held liable
for his conduct toward Ms Grosse.
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A tort of privacy?
It had been considered that the High Court decision in Victoria Park Racing
and Recreation Grounds Co Ltd v Taylor124 (Victoria Park) was authority for the
proposition that there was no common law right to privacy. However, Senior
Judge Skoien referred to the recent decision of the High Court in Australian
Broadcasting Corporation v Lenah Game Meat Pty Ltd125 (Lenah) in which the judges
of the High Court expressed the view that the Victoria Park decision had been
overstated in terms of its rejection of an actionable right to privacy. The judges
of the High Court suggested a reconsideration of a right to privacy at common
law may be necessary in the future. Senior Judge Skoien summarised the views
of the High Court judges in the Lenah decision as follows:
The Court made clear that the time was now right for consideration as to how and
to what extent privacy should be protected at common law in Australia. See the judgments of the Gleeson CJ at para 40 (“the law should be more astute than in the past
to identify and protect interests of a kind which fall within the concept of privacy”),
of Gummow and Hayne JJ (and Gaudron J) at para 132, and of Callinan J at
para 335.
At para 332 Callinan J said “. . . principles for an Australian tort of privacy . . . need
to be worked out on a case by case basis in a distinctly Australian context”. See also
Gummow and Hayne JJ at para 124.126
Having regard to the High Court decision in Lenah, Senior Judge Skoien
decided to take the ‘bold step’127 of formulating an actionable tort of privacy as
follows:
. . . In my view the essential elements would be:
a)
a willed act by the defendant,
b) which intrudes upon the privacy or seclusion of the plaintiff,
c)
in a manner which would be considered highly offensive to a reasonable person
of ordinary sensibilities,
d) and which causes the plaintiff detriment in the form of mental psychological or
emotional harm or distress or which prevents or hinders the plaintiff from doing
an act which she is lawfully entitled to do.128
Senior Judge Skoien did not find it necessary to consider whether any defences
ought to be formulated as in his opinion none would have been successful in the
present case.129 The Senior Judge proceeded to find that Mr Purvis breached the
tort of privacy and awarded Ms Gross an amount of $108 000 in compensation
for post-traumatic stress disorder, future economic loss, costs of treatment,
wounded feelings and vindicatory damages.130 Further amounts were ordered
to be paid for aggravated compensatory damages of $50 000131 and $20 000 as
exemplary damages as a punitive measure.132
A tort of harassment?
Senior Judge Skoien also considered whether there was an actionable tort of
harassment at common law. His Honour stated:
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All of what I have said in relation to the tort of invasion of privacy applies, I
consider, if the breach amounts to harassment (or stalking) as it has in this case.
Indeed, Gummow and Hayne JJ, (and Gaudron J) without dissent from the any other
member of the Court, recognised harassment as a possible developing tort, separate
and distinct from invasion of privacy. See para 123.
Gummow and Hayne JJ (and Gaudron JJ) saw as useful the discussion on this
separate and discreet cause of action for harassment by Todd in his chapter entitled
Protection of Privacy in Torts in the Nineties (1977) 174 at 200-204. Todd himself
expressly identifies stalking being “…an especially sinister activity” as conduct that
would be caught by this cause of action.
Todd formulated the possible cause of action thus:The courts will require evidence of unwanted harassing and annoying
conduct which the defendant knows or ought to know will cause fear or
distress to the victim and which is of such degree of seriousness that an
ordinary person should not reasonably be expected to endure it.133
Senior Judge Skoien found that the essential elements suggested by Todd were
made out in the present case, but that he did not need to decide whether such a
tort was a separate cause of action.134 In his Honour’s view the tort of harassment
was ‘merely an aggravated form of invasion of privacy’.135
Implications
At the time of writing, the decision had been appealed. It is therefore uncertain
whether Senior Judge Skoien’s reasoning will withstand scrutiny by superior
courts. Nevertheless, it is worth noting that the tort of invasion of privacy as
formulated by Senior Judge Skoien covers a much broader range of conduct
than is covered under current privacy legislation. To date, regulation of the
employment aspects of privacy legislation has centred upon the collection and
handling of personal information and workplace surveillance.
While we will have to wait for decisions of more superior courts before we
can appropriately assess the impact of Senior Judge Skoien’s decision, there is
little doubt that concerns of privacy will continue to be a pressing issue amongst
employers and employees.
CONCLUSION
In summary, the decisions reviewed by us reflect the expansion of the jurisdiction
of labour law. Current economic and social norms are resulting in an increasing
number of decisions that may be justifiably considered as novel. It is interesting
however, to observe that these decisions had a limited or tangential connection,
if any at all, to collective rights. In our view, it is becoming increasingly
apparent that under the present social and regulatory climate employers and
employees are more concerned with individual rights and obligations than
collective ones. This suggests that there is an ever increasing cultural challenge
ahead for collective organisations, which are no strangers to struggle of this type.
Indeed, the next 12 months may be significant for collective organisations with
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various test cases relating to redundancy standards, labour hire and transmission
of business expected to be decided.
REFERENCES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
See generally the objects as provided in section 3 of the Workplace Relations Act 1996 (Cwlth).
[2003] QDC 151 (Unreported).
(2003) 198 ALR 100.
(1991) 29 FCR 104; 99 ALR 735.
Fenwick-Colin (1992) Shooting for trouble? Contract labour hire in the Victorian building
industry. Australian Journal of Labour Law 5 (3), 237.
See also Cullen (2003) A servant and Two Masters? - The Doctrine of Joint Employment in
Australia. Australian Journal of Labour Law 16, 359.
Matthews v. Cool or Cosy Pty Limited; Ceil Comfort Home Insulation Pty Limited (2003) WAIRC
10399 (Unreported judgement of Sharkey P, Coleman CC, Gregor C, 24 December 2003).
[2003] NSWIRComm 1006 (Unreported, McKenna C, 3 March 2003)
ibid at p. 1.
ibid.
ibid at p. 2.
ibid at p. 2.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid at p. 1.
ibid at p. 2.
ibid at p. 4.
ibid at p. 12.
ibid at p. 10.
(2002) 117 IR 152.
ibid paras 73–74.
ibid para. 75.
Oanh Nguyen and A-N-T Contract Packers Pty Ltd trading as A-N-T Personnel and Thiess Services
Pty Ltd trading as Thiess Services [2003] NSWIRComm 1006 (Unreported judgement of
McKenna C, 3 March 2003) at p. 13.
ibid.
ibid.
(Unreported judgement of Lewin C, 12 September 2003, PR937820).
ibid at para. 16.
ibid at para. 50.
ibid at para. 21.
ibid at para. 2.
ibid.
(23 May 2000, Munro J, Duncan SDP and Jones C, PRS6212).
(1986) 160 CLR 16.
Josie Bianchi v Staff Aid Services (Unreported judgement, Lewin C, 12 September 2003,
PR937820) at para. 73.
Matthews v. Cool or Cosy Pty Limited; Ceil Comfort Home Insulation Pty Limited (2003) WAIRC
10399 (unreported judgement of Sharkey P, Coleman CC, Gregor C, 24 December 2003).
MAJOR TRIBUNAL DECISIONS
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
IN
2003
211
ibid at p.2.
ibid.
ibid at p. 35.
ibid at p. 25.
ibid at p. 34.
ibid.
ibid at p. 39.
ibid at p. 44
ibid at p. 35
ibid.
ibid.
ibid.
ibid.
ibid at p. 44.
ibid.
ibid.
(2003) 198 ALR 100.
ibid at p. 101.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid at pp. 101–02.
ibid at p. 102.
(2002) 191 ALR 449.
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100 at p. 114.
ibid at p. 122.
ibid.
ibid.
ibid.
ibid.
ibid at p. 103.
ibid at p. 123–4.
[1932] AC 562.
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100 at p. 114.
ibid.
ibid at p. 130.
ibid.
ibid at p. 127.
ibid at p. 124.
See O’Neill v Medical Benefits Fund of Australia (2002) 122 FCR 455; Stoelwinder v Southern
Health Care Network (2000) 177 ALR 501; McCormick v Riverwood International (Australia)
Pty Ltd (1999) 167 ALR 689; Martin v Tasmania Development & Resources (1999) 163 ALR 79.
See generally Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389.
[2003] FCA 1099 (unreported) (10 October 2003)
ibid at para. 5.
ibid at para. 12.
ibid at para. 28.
212
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
99.
100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
112.
113.
114.
115.
116.
117.
118.
119.
120.
121.
122.
123.
124.
125.
126.
127.
128.
129.
130.
131.
132.
133.
134.
135.
THE JOURNAL
OF
I N D U S T R I A L R E L AT I O N S
ibid at para. 95.
ibid at para. 171.
ibid at paras 17 and 58.
ibid at para. 64.
ibid.
ibid at para. 78.
ibid at para. 81.
ibid at paras 120–35.
ibid at para. 213–15
ibid paras 180–5.
ibid at para. 185.
ibid at para. 178.
ibid at para. 189.
ibid at para. 190.
ibid.
ibid at para. 191.
ibid at para. 192.
ibid at para. 193.
ibid at para. 195.
ibid at