Sinadinos v EDI Rail Pty Limited [2008] NSWIRComm 252 (18 December 2008)

Last Updated: 10 December 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Sinadinos v EDI Rail Pty Limited [2008] NSWIRComm 252



FILE NUMBER(S):
IRC 513

HEARING DATE(S):
18 December 2008


EX TEMPORE DATE:
18 December 2008

PARTIES:
APPELLANT:
Tas Sinadinos

RESPONDENT:
EDI Rail Pty Limited

CORAM:
Boland J President Walton J Vice-President Kavanagh J


CATCHWORDS: Appeal - unfair contract jurisdiction - costs - Notice of Contention - Sydney Water - serious misconduct - summary termination - no issues of law or principle attracting leave - proper basis to summarily dismiss - Contention made out - costs within discretion - leave refused

LEGAL REPRESENTATIVES
APPELLANT:
Mr P Coleman of counsel
Solicitors: Carroll and Associates
RESPONDENT:
Mr A Moses SC with Mr B Miles of counsel
Solicitors: Colin Biggers & Paisley

CASES CITED:
King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407
Knowles v Anglican Property Trust (No 2) (2000) 95 IR 380
Sydney Water Corporation v Industrial Relations Commission of New South Wales [2004] NSWCA 436; (2004) 61 NSWLR 661

LEGISLATION CITED:
Industrial Relations Act 1996


TEXTS CITED:
Industrial Relations Act 1996



JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

FULL BENCH

CORAM: BOLAND J, President

WALTON J, Vice-President

KAVANAGH J

Thursday 18 December 2008

Matter No IRC 513 of 2008

TAS SINADINOS v EDI RAIL PTY LIMITED

Application by Tas Sinadinos for leave to appeal and appeal against a judgment given by Justice Marks on 5.12.2007 and 28.3.2008 in Matter No IRC 6325 of 2005

JUDGMENT OF THE COURT

EX TEMPORE

[2008] NSWIRComm 252

1 Tas Sinadinos applies for leave to appeal from decisions of Marks J given on 5 December 2007 and 28 March 2008. The first of those decisions concerned the primary adjudication upon an application brought under s 106 of the Industrial Relations Act 1996 and the latter concerned the question of costs. The respondent has issued a Notice of Contention in relation to the appeal.

2 The issues raised are two-fold. The first issue concerns whether a decision of Marks J to refuse to make orders as to the payment of one month's salary (being an amount contended to be due as a payment in lieu of notice under the employment contract between the parties) based upon the decision of the Court of Appeal in Sydney Water Corporation v Industrial Relations Commission of New South Wales [2004] NSWCA 436; (2004) 61 NSWLR 661 was in error (as a matter of jurisdiction). The second issue was whether Marks J erred in determining the question of costs by requiring each party to pay its own costs. It should be noted that his Honour did make a finding of unfairness under s 106(1) at first instance, resulting in an order for compensation in favour of the appellant, but that decision is not subject to challenge.

3 The Notice of Contention is to the effect that there was an alternative basis upon which Marks J may have reached the same conclusion as to the question of payment for notice, namely, that the appellant had engaged in serious misconduct which warranted summary termination and that that step was not precluded by the terms of the contract.

4 We consider that leave to appeal should be refused in this matter.

5 Whilst the appellant made reference to a decision of the Australian Industrial Relations Commission as to leave principles, we would wish to confirm that the relevant principles are those laid down in the decision of a Full Bench in Knowles v Anglican Property Trust (No 2) (2000) 95 IR 380 at 381-382 and the successive decisions of Full Benches of this Court following that judgment.

6 Leave should be refused because the appeal raises no questions of law or principle that would properly attract the grant of leave. Whilst a jurisdictional question was raised concerning the true effect of Sydney Water and Marks J's reliance on it, we do not consider that that issue is central to the determination of the application for leave in that respect. We are of the view that the Contention is of some real merit and that there was an implied contractual right to dismiss the appellant for serious misconduct which was not precluded by the contract of employment. There are ample grounds upon which that right may have been exercised by the respondent in the present matter. In any event, we consider that the Court in the circumstances of this case may well have declined to exercise its discretion to make an order in favour of the appellant for payments due under the contract in relation to notice.

7 As to the question of costs, whilst we may have formed a different view as to his Honour on the proper apportioning of costs, this is an appeal from a discretionary decision. It is an appeal stricto sensu in which the principles in King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 apply. We consider that the order for costs made by Marks J was an exercise of discretion properly available to him in the circumstances of this matter.

8 We order that leave to appeal is refused.

_________________________

LAST UPDATED:
20 February 2009