Garbett v Midland Brick Company Pty Ltd

(2003) 129 IR 270; [2003] WASCA 36

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Industrial Law
2. › Unfair dismissal
3. › Dismissal following redundancy
4. › Employer's obligation to inform and discuss
5. › Whether sufficient discussion held as to likely effects of redundancy
6. › Whether employer must initiate discussion or merely afford opportunity
7. › Minimum Conditions of Employment Act 1993 (WA), s 41
1. Industrial Law
2. › Unfair dismissal
3. › Remedies
4. › Breach of implied term of contract of employment
5. › Whether breach of implied term necessarily amounts to unfair dismissal
6. › Nature of further findings required
7. › Industrial Relations Act 1979 (WA), ss 23, 23A, 29
1. Contract
2. › Implied terms
3. › Terms implied by statute
4. › Minimum conditions of employment
5. › Nature of employer's obligation under statutorily implied term
6. › Whether employer must bring entitlement to employee's attention
7. › Minimum Conditions of Employment Act 1993 (WA), ss 5, 41
1. Industrial Law
2. › Unfair dismissal
3. › Waiver
4. › Whether employee can waive statutory minimum conditions of employment
5. › Minimum Conditions of Employment Act 1993 (WA), s 5(4)

Quick Take

Section 41 of the Minimum Conditions of Employment Act 1993 (WA) requires the employer to take positive steps to initiate and ensure a discussion with the employee about the likely effects of redundancy and measures to avoid or minimise those effects; it is not sufficient merely to afford the employee an opportunity to discuss. However, breach of this implied contractual term does not automatically establish unfair dismissal — the employee must demonstrate that the breach caused identifiable loss or injury by reason of the manner in which the termination was implemented. An employee cannot waive rights under the MCEA by reason of s 5(4).