Concut Pty Ltd v Worrell and Another
[2000] HCA 64(2000) 176 ALR 693
(Judgment by: McHugh J)
Concut Pty Ltd
vWorrell and Another
Judges:
Gleeson CJ
Gaudron J
McHugh J
Gummow J
Kirby J
Subject References:
Employment
Contract
Oral contract of employment and subsequent written contract
Whether second contract terminated and replaced first contract
Whether second contract removed or compromised employer's right to dismiss employee
Whether duty on employee to disclose past faults.
Employment
Unfair dismissal
Employer not aware of misconduct at time of summary dismissal
Whether misconduct available to employer to resist action for damages for wrongful dismissal.
Contract
Agreement
Oral contract of employment and subsequent written contract
Whether second contract terminated and replaced first contract.
Legislative References:
Trade Practices Act 1974 (Cth) - 52
Industrial Relations Act 1971 (UK) - The Act
Case References:
Coulton v Holcombe (1986) - 162 CLR 1; 65 ALR 656
Griffin v London Bank of Australia Ltd - (1919) 19 SR (NSW) 154
Gordon & Gotch (Australasia) Ltd v Cox (1923) - 31 CLR 370
Byrne v Australian Airlines Ltd (1995) - 185 CLR 410; 131 ALR 422
Stratton v Illawarra County Council - [1979] 2 NSWLR 701
Meek v Port of London Authority - [1918] 2 Ch 96
Stocznia Gdanska SA v Latvian Shipping Co - 1 WLR 574; [1998] 1 AllER 883
Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd - [1974] AC 689
Holland v Wiltshire (1954) - 90 CLR 409
Taylor v Raglan Developments Pty Ltd - [1981] 2 NSWLR 117
Sterling Engineering Co Ltd v Patchett - [1955] AC 534
Scally v Southern Health and Social Services Board - [1992] 1 AC 294
Malik v Bank of Credit and Commerce International SA (in liq ) - [1998] AC 20
Lever Brothers Ltd v Bell - [1931] 1 KB 557
Demagogue Pty Ltd v Ramensky (1992) - 39 FCR 31
Blyth Chemicals Ltd v Bushnell (1933) - 49 CLR 66
Adami v Maison de Luxe Ltd (1924) - 35 CLR 143
Shepherd v Felt and Textiles of Australia Ltd (1931) - 45 CLR 359
Official Trustee in Bankruptcy v Concut Pty Ltd - [1999] QCA 3
Employment Secretary v Associated Society of Locomotive Engineers and Firemen (No 2) - [1972] 2 QB 455
Vine v National Dock Labour Board - [1957] AC 488
Hill v C A Parsons Ltd - [1972] Ch 305
Automatic Fire Sprinklers Pty Ltd v Watson (1946) - 72 CLR 435
Qantas Airways Ltd v Christie (1998) - 193 CLR 280; 152 ALR 365
Ryder v Foley (1906) - 4 CLR 422
Fletcher v Nott (1938) - 60 CLR 55
Kaye v Attorney-General (Tas ) (1956) - 94 CLR 193
Reedman v Hoare (1959) - 102 CLR 177
Coutts v Commonwealth (1985) - 157 CLR 91; 59 ALR 699
English and Australian Copper Co Ltd v Johnson (1911) - 13 CLR 490
Independent Management Resources Pty Ltd v Brown - [1987] VR 605
Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) - 132 CLR 373
Timber Engineering Co Pty Ltd v Anderson - [1980] 2 NSWLR 488
Printing Industry Employees Union of Australia v Jackson & O'Sullivan Pty Ltd (1957) - 1 FLR 175
Boston Deep Sea Fishing and Ice Co v Ansell - (1888) 39 Ch D 339
Clouston & Co Ltd v Corry - [1906] AC 122
Re Rubel Bronze and Metal Co Ltd and Vos - [1918] 1 KB 315
Orr v University of Tasmania (1957) - 100 CLR 526
Lucy v Commonwealth (1923) - 33 CLR 229
Automatic Fire Sprinklers Pty Ltd v Watson (1946) - 72 CLR 435
Pan Foods Co Importers & Distributors Pty Ltd v Australian and New Zealand Banking Group Ltd (2000) - 170 ALR 579; 74 ALJR 791
Colquhoun v Brooks - (1888) 21 QBD 52
Gill v Colonial Mutual Life Assurance Society Ltd - [1912] VLR 146
Bell v Lever Brothers Ltd - [1932] AC 161
Sybron Corp v Rochem Ltd - [1984] Ch 112
Suggested reading:
Hearing date: 20 June 2000
Judgment date: 14 December 2000
Canberra
Judgment by:
McHugh J
[40] I agree that this appeal should be allowed.
[41] The judgments of other justices establish that there was only one contract of employment between the employer and employee. It follows that the Queensland Court of Appeal erred when it held otherwise. Because that is so, the case is one for the straightforward application of well-accepted principles.
[42] The learned trial judge found that the employee's use of his employer's resources to build a private dwelling was "significant misconduct". [43] That misconduct entitled the employer to terminate the employment contract, [44] the terms of which at that time were only partly recorded in the service agreement executed on 1 December 1986. The fact that the employer was not aware of, and was not acting upon, the employee's serious misconduct when it purported to terminate the employment contract on 1 February 1988 is irrelevant. [45] Accordingly, the termination of the employee's employment was not "wrongful", and the employee's claim for damages for breach of the employment contract must fail.
[43] In light of this conclusion, it is unnecessary to consider the employer's submission that the employee was in breach of the express obligation of faithful service under the service agreement executed on 1 December 1986 for as long as he failed to make good "his past breaches of fiduciary duty by accounting for the benefits wrongly appropriated by him". This submission accepted, but was made to overcome, the erroneous holding by the majority of the Court of Appeal that there were two distinct contracts between the employer and employee. The majority held that the first contract was made prior to, but had been discharged on, 1 December 1986 and that the second contract was contained in the service agreement executed on that date.
[44] Once it is accepted that there was only one employment contract, it is also unnecessary to determine for what proposition, if any, Bell v Lever Brothers Ltd [46] is authority and whether it had any application to the facts of this case.
[45] The appeal must be allowed with costs.