Zafiriou v Saint-Gobain Administration Pty Ltd

[2014] VSCA 331

Victorian Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Fresh evidence on appeal
3. › Application to adduce fresh evidence
4. › Failure to provide proper discovery at trial
5. › Whether documents discovered after trial raised real possibility of producing opposite result
6. › Standard where successful party failed to give proper discovery
1. Employment Law
2. › Contract of employment
3. › Termination
4. › Whether termination was for redundancy or on performance grounds
5. › Redundancy defined as position surplus to requirements by reason of reorganisation
1. Employment Law
2. › Contract of employment
3. › Incorporated policies and procedures
4. › Whether termination policy and disciplinary procedure had contractual effect
5. › Whether aspirational policy statements create enforceable contractual obligations
6. › Whether disciplinary procedures applied to senior executive outside unfair dismissal regime
1. Contract
2. › Construction
3. › Incorporated documents
4. › Whether incorporated policy documents impose contractual obligations
5. › Distinction between aspirational policy statements and contractual obligations
6. › Inconsistency between express contract terms and incorporated documents

Quick Take

Incorporated employment policies that state their purpose as ensuring compliance with the unfair dismissal regime will not be construed as imposing contractual obligations on the employer with respect to employees whose remuneration places them outside that regime. Policy statements expressed in aspirational language (commitment to natural justice, treating employees with respect) do not create enforceable contractual obligations. The word 'guidelines' in a policy document indicates non-prescriptive intent. Where discovery failures result in fresh evidence emerging after trial, the test for a new trial is whether there is a real possibility of a different result, not whether it is almost certain.