Automatic Fire Sprinklers Pty Ltd v Watson

[1946] ALR 390

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(Judgment by: McTiernan J)

Automatic Fire Sprinklers Pty Ltd
vWatson

Court:

Judges: Latham CJ
Rich J
Starke J
Dixon J

McTiernan JWilliams J

Legislative References:
Arbitration Act 1902 (NSW) - s 9(a); The Act
National Security Act 1939-1943 - s 10

Hearing date: 25 July 1946, 26 July 1946, 29 July 1946
Judgment date: 23 August 1946

Sydney

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Judgment by:
McTiernan J

This appeal arises out of an award, stated in the form of a special case for the opinion of the Court, in pursuance of s. 9 (a) of the Arbitration Act 1902 (N.S.W.), upon questions of law. I do not repeat the facts found by the arbitrator and the question of law submitted by him.

As regard Question 1 (a), it is clear that the intention of reg. 14 (1) (a) is to prohibit the termination of the employment in a protected undertaking of any person employed therein, save with the prescribed permission. The violation of this prohibition is punishable as an offence against the National Security Act 1939-1943, s. 10. A court will not lend its aid to give any effect to an act done in breach of the regulation. Such an act can have no effect upon the contractual relationship between the employer guilty of the breach and the employee in respect of whose employment the breach is committed: See Whiteman v. Sadler(1); Cope v. Rowlands(2). By the letter dated 29th September 1944, the appellants purported to terminate the respondent's existing employment in their undertaking. The sending of that letter was a contravention of the regulation. The answer to the question, whether this purported dismissal was "ineffectual in law" to terminate the respondent's employment as general manager, should in my opinion be: Yes. The arbitrator states in the special case what his award is if Question 1 (a) is answered in the affirmative. The question whether, if Question 1 (a) is thus answered, the award is right, is not submitted by the arbitrator. This award decides that the respondent ceased to be general manager on 19th September 1945 and that certain amounts are due to the respondent for salary and other remuneration respectively from 29th September 1944 to 19th September 1945; also a sum by way of damages for the wrongful dismissal of the respondent on 19th September 1945. The regulation having ceased to apply to the appellants' undertaking, he was excluded from it on that date. If the regulation had not been in force on 29th September 1944, the dismissal of the respondent from the employment of general manager, although made in breach of the contract of employment, would have been effective at common law to terminate the respondent's service as general manager and the remedies of a servant for wrongful dismissal would have been available to the respondent.

It was a term of the agreement that the respondent was to receive payment as consideration for his services and the performance of his part of the agreement. The facts of the present case are peculiar. It appears that although the appellants purported to terminate the respondent's employment as general manager, he attended their office from 29th September 1944 down to 15th September 1945 and performed work previously done by him as general manager; the respondent did not acquiesce in his dismissal; and after 29th September 1944 he did not receive any payment from the appellants.

If the appellants had not purported to dismiss the respondent he would have been entitled to be paid for such attendance and work the consideration which the appellants agreed to pay him for his work as general manager. The termination of his employment as general manager being illegal and void, the appellants cannot rely upon it to relieve themselves from liability to pay the respondent the salary and remuneration which the arbitrator says he awards if Question 1 (a) is answered yes.

If the respondent had not attended the undertaking after the illegal termination of his employment on 29th September 1944, I should doubt whether the cases of George v. Mitchell & King Ltd.(1) and Adrema Ltd. v. Jenkinson (2) would establish that the appellants' liability to pay salary or other remuneration continued after 29th September 1944.

In regard to Questions 1 (b) and 2, it is apparent from the terms of the special case that if Question 1 (a) is answered: Yes, these questions do not arise.

In my opinion the appeal should be dismissed.