his decision concerns an application for permission to appeal against a decision 1 of Senior Deputy President Richards handed down on 7 May 2015 (Decision). The Decision concerned an unfair dismissal application made by Ms Elizabeth Atkinson on 12 January 2015 under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by L.R.G catering Pty. Ltd T/A Marine Provisioning Australia (Respondent). [2] At the hearing of the appeal matter on 14 July 2015 the Applicant represented herself and Mr Lorenzen appeared via telephone for the Respondent. Background [3] The Respondent provides catering services to day cruises in the Whitsundays and a bowls club. The Applicant began performing duties in the cleaning/kitchen duties role since approximately July or August 2013. [4] In the matter at first instance, there was a host of conflicting facts. The …show more content…
Applicant claimed that she was dismissed from her employment following a particular set of circumstances that occurred on 31 December 2014 and 2 January 2015 in which she alleges her manager, Mr Lorenzen yelled at her abusively following an altercation and dismissed her from the premises. The Respondent contended that the Applicant abandoned her employment on 31 December 2014 and was not dismissed. The detailed facts are set out extensively at paragraphs [4]-[46] of the Decision and are not necessary to reproduce here. [5] Section 386(1) of the Act requires that to be eligible for an unfair dismissal remedy, an employee must have been dismissed at the initiative of the employer or else resigned because he or she was forced to do so because of conduct or a course of conduct, engaged in by his or her employer. In the matter before him, the Senior Deputy President was required to determine whether or not the Applicant was dismissed within the meaning of s.386(1) of the Act or whether she abandoned her employment. [6] The Decision sets out a number of irregularities in the Applicant’s evidence when compared to the Respondent’s evidence at paragraphs [47] - [65] of the Decision. In particular, two witnesses of the Respondent, Mr King and Mr Morley, gave evidence that was completely at odds with the Applicant’s version of events. [7] The Senior Deputy President’s conclusions in relation to the issue of dismissal are expressed in the following passage from his decision: “[65] Whilst I am not in a position to be able to identify every exchange that occurred between the parties on 2 January 2015, on the balance of probabilities I prefer Mr Lorenzen’s construction of events. I do so for the reasons given above. I also found that Mr Lorenzen did not seek to be dogmatic about his evidence. He offered evidence that was not directly in his interests - by volunteering that he had indeed “yelled” at Ms Atkinson on 31 December 2014 when he asked her to “Go”, and conceded he called Ms Atkinson a “silly old cow” on 2 January 2015 (as set out above). [66] Having had the benefit of hearing the witnesses in this matter, and comparing Ms Atkinson’s evidence to that of Mr King and Mr Morley, and considering the inconsistencies in Ms Atkinson’s evidence, I am of the view that Ms Atkinson has greatly exaggerated her claims in respect of Mr Lorenzen’s conduct. [67] Whilst Ms Atkinson portrayed herself as a victim in the face of Mr Lorenzen's relentlessly abusive conduct, Mr Morley and Mr King gave no such evidence in support of her claims in this regard, even though they were well-placed to observe a range of the relevant interactions on 31 December 2014 and 2 January 2015. [68] On the balance of probability I have reached the view that Ms Atkinson’s conduct on 31 December 2014 had reached an intolerable point and that Mr Lorenzen dismissed Ms Atkinson when he ordered her to leave the premises. Mr Lorenzen conceded he yelled “Go” to Ms Atkinson. [69] But with the employment relationship re-established on 2 January 2015, it was Ms Atkinson herself who initiated her departure from the workplace that day by her conduct in refusing to perform prescribed duties, speaking in coarse terms to Mr Lorenzen and leaving the workplace. Mr Lorenzen’s comment to Ms Atkinson that she was a “silly old cow” only came after Ms Atkinson returned to the workplace on 2 January 2015 (after already leaving once on that day) and does not constitute words or conduct relevant to the Applicant’s decision to repudiate her employment. After all, Ms Atkinson had not returned for any purpose relating to her employment or for purposes of re-establishing the employment relationship. [70] When the evidence is considered as a whole - and particularly so on the basis that it has been heard directly - I consider that Ms Atkinson was not dismissed from her employment at the initiative of her employer - Mr Lorenzen - but rather resigned (or otherwise repudiated) her employment herself on 2 January 2015. Ms Atkinson did not perform the duties she was directed to perform, personally abused Mr Lorenzen and left the workplace at her own initiative. Ms Atkinson had come close to taking this course of action on 31 December 2014, and on 2 January 2015, she gave effect to that impulse. [71] Further, it seems to me on the balance of probability that Ms Atkinson did so not in circumstances where she was forced to do so because of the conduct of her employer, but rather did so in circumstances where other options were available to her. One of these options was to engage constructively with Mr Lorenzen, but her impulses (as observed by Mr King and Mr Morley) were to a more negative effect altogether.” [8] After considering the requirements of s.385 and 386 of the Act, the Senior Deputy President concluded: “[74] Because of my findings as made above, Ms Atkinson’s application is not competent for reason she was not dismissed at the initiative of her employer, nor was she forced to resign because of Mr Lorenzen’s conduct or course of conduct. Reasonably, in the context of the overall conduct, Mr Lorenzen accepted service of Ms Atkinson’s effective resignation after she exited the premises on 2 January 2015. Ms Atkinson made no subsequent effort to rescind her effective resignation or to seek clarity as to her employment status thereafter, which is an indicator of the definitive nature of the intended result of her conduct that day. [75] In light of these findings, I must dismiss Ms Atkinson’s application as made under s.394 of the Act.” Grounds of Appeal [9] The grounds of appeal advanced in the Applicant’s Notice of Appeal in relation to errors of fact can be summarised as follows: the statements that were submitted by the Respondent at first instance in relation to the incidents on 31 December 2014 and 2 January 2015 were not true and false allegations were made against the Applicant; the Witnesses were not on the premises for most of the time that the alleged abusive incidents occurred; and the Applicant did not resign as she would not have walked off a job that she needed to survive and was enjoying. The reason she left the workplace on 2 January 2015, was that she was frightened that Mr Lorenzen was going to hit her and was told to “get out” and called “an old cow”. [10] At the hearing, the Applicant made further oral submissions.
The Applicant submitted that the Respondent was “controlling and bulling and being very assertive with his nature” at the first instance hearing and that the Senior Deputy President should have taken this into account. 2 She also reemphasise that she did not resign from her employment and only left the workplace because she feared for her life and was told to get out. In short, the Applicant was challenging the factual findings made at first instance and in particular the finding that she was not dismissed at the employer’s initiative and abandoned her employment. In the Applicant’s view, this finding could not have been made on the facts, particularly given that it would have been difficult for her to find another job in the area of Airlie Beach and as a result of losing the job, she has lost her house and lives in a shed. Further, she submitted that the Senior Deputy President’s acknowledgement that she was called “an old cow” and told to “get out” was inconsistent with the ultimate finding that she was not
dismissed. [11] The Respondent made some brief oral submissions in reply, noting that the Applicant only worked 8 hours a week for the Respondent and had other sources of income so it was unlikely that the termination of her employment with the Respondent had caused her to lose her house. He also noted that the Respondent had offered the Applicant additional work, which she turned down. He denied the allegations that he was controlling in the proceedings at first instance and said the proceedings speak for themselves. In the Respondent submissions, there was no appealable error in the Decision of the Senior Deputy President. Permission to Appeal [12] An appeal in relation to an unfair dismissal matter is governed by the provisions of sections 604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These requirements are modified with respect to unfair dismissal appeals by section 400 of the Act which provides:
They reasoned that since Barnett didn’t either argue against the dismissal of negligence claim at the time of its dismissal or include the claim in subsequent revisions, she had no support for her claim that the court had erred in dismissing her claim of negligence. The court also ruled that the language of section 3-108(b) of the Tort Immunity Act meant that complete, unconditional immunity was to be offered if supervision was present. As a result of this interpretation, the issue of if the lifeguards had committed willful and wanton misconduct was rendered irrelevant. Since the issues of material fact raised by the appellant weren’t actually issues of material fact, the Supreme Court affirmed the District and Appellate Court’s motion and subsequent affirmation of summary
There is one appellant and three respondents involved in these proceedings. Equuscorp Pty Ltd (referred to as “Equuscorp”) is the appellant. Ian Haxton, Robert Bassat and Cunningham’s Warehouse Sales Pty Ltd (referred to as “the respondents”) are the respondents. This matter was heard in the High Court of Australia in front of Chief Justice French and Judges Gummow, Heydon, Crennan, Kiefel and Bell.
MILLERSBURG — After deliberating for three hours, a jury of four women and eight men found a Holmesville man guilty of making and possessing methamphetamine, all within the vicinity of juveniles and a school.
Analysis / Ruling of the Court. The district court granted the employer’s motion for summary judgement on the sexual harassment claim due to the fact that Sherry Lynch treated both men and women equally in this case; that is, she behaved in the same vulgar and inappropriate way towards both genders. For this reason, Smith’s gender was not a contributing factor to the harassment, which is one of the conditions that would have to be met for the sexual harassment claim. The appellate court agreed and affirmed the district court’s judgement. The district court ended up excluding evidence pertaining to the sexual harassment claim because the sexual harassment claim had been dismissed on summary judgement, and because the court decided that the details of the harassment bore little relevance to the retaliation case whereas this evidence would be unfairly prejudicial to Hy-Vee. The appellate court affirmed the district court’s judgement. Smith did not offer any specifics on what evidence she would have wanted to present, which made it hard for the court to determine whether this evidence was material to the retaliation case or not. In her opposition to the motion in limine, she said she only wanted to discuss the harassment case in general, including mentioning that Lynch had harassed/touched her inappropriately. Hy-Vee had no objection to this, and Smith got to present this much evidence in the trial. Therefore, the appellate court found that she waived any objection to the
On the evening of January 5, 1993, Tracie Reeves and Molly Coffman, both twelve years of age and students at West Carroll Middle School, spoke on the telephone and decided to kill their homeroom teacher, Janice Geiger. They agreed that Coffman would bring rat poison to school the following days so that it could be placed in Geiger's drink. After that , they would steal Geiger's car and drive to the Smoky Mountains. On the morning of January 6, Coffman placed a packet of rat poison in her purse and board the school bus. Coffman told another student, Christy Hernandez, of the plan and show her the poison. Hernandez went and informed her homeroom teacher, Sherry Cockrill. Cockrill then informed the school principal, Claudia Argo. When Geiger entered her classroom that morning, she observed Reeves and Coffman leaning over her deck; and when the girls noticed her, they giggled and ran back to their seats. Geiger saw a purse lying next to her coffee cup on the top of the desk. Shortly after Argo called Coffman to the principal's office, rat poison was found in Coffman's purse. Both Reeves and Coffman gave written statement to the Sheriff investigator concerning their plan to poison Geiger and steal her car.
Wolford General Partnership (WGP) operates plumbing supply business which is also an exclusive supplier for certain stable construction firms. Because of its excellent reputations and services, WGP is able to an extremely profitable entity for the business. WGP uses an accrual method of accounting and has been using June 30 fiscal year for the tax report purpose after its election of §444 since its formation.
In R v Sheu, the leave to appeal made by applicant, Simon Sheu for the sentence imposed upon him in the District Court on 16th of September 2016 was refused at the 2nd of May 2018 hearing. The applicant was previously sentenced by Williams in the District Court for two counts of break, enter and steal (s 112(1) of the Crimes Act 1900 (NSW)), three counts of aggravated break, enter and steal (s 112(2)) and once for taking part in a criminal group (s 93T(1)). The sole ground of the proposed appeal made to the Court of Criminal Appeal was that the applicant seeks leave because he has
R v Secretary of State for Transport, ex parte Factortame Ltd and others [1999] All ER (D) 1173.
At the behest of Solicitor General John Les, an inquiry was launched in February o...
Facts: Alton Lemon took David Kurtzman to court with the support of a number of interest groups including the Pennsylvania Civil liberties union and the NAACP in hopes the court would find a law in Pennsylvania unconstitutional. This said law, the Nonpublic Elementary and secondary education act, had allowed Kurtzman to “purchase” educational services for private schools, and could use tax money to reimburse private school for the cost of salaries as well as books and supplies. The state agreed to provide funding as long as the money went towards secular expenses, meaning the books and supplies that were meant for teaching the same courses that were taught in public schools. In order to receive money, there had to be records of secular expenses and non secular expenses. This act began to be able to be put to use in July of 1968. Ultimately, “96% of the nonpublic school students attended religious schools, primarily roman catholic”(Epstein. Walker 147). In Rhode Island, there was a similar law, the Rhode Island Salary Supplement Act, where 15% of the teachers salaries were funded to contribute to private schools, as long as no religious classes were taught. It turned out though that 95% of the
Mr Justice Wilson, ‘Lectures on Advocacy and Ethics in the Supreme Court’ (1979) 15 Legal Research Foundation Inc.
The name of the parties are (appellant) commissioner of the police of the metropolis,(respondent) Mr. Michael Rottman . The judgment has been held in the house of lords. The judges on this were- Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton and Lord Roger of Earlsferry. The barristers and solicitors in this case were, Mr. Perry, on behalf of the appellant and Miss Montgomery, for the respondent. The date of the judgment was 16th may 2002.
This essay will examine the main cause of the demise of the derivative claim which is the possibility of pursuing a corporate relief and even costs via an unfair prejudice petition, a relief and order that was initially only available via derivative action. Further this essay will discuss as to how the boundaries between the statutory derivative action and the unfair prejudice should be drawn and what restrictions should be added to the unfair prejudice remedy under section 994 of the Companies Act 2006 so that the significance of the statutory derivative action can be reinstated.
This legislation does not prevent dismissals from occurring but only allows the employee to challenge their dismissal. The Unfair Dismissals Act 1977-2007 is the legislation that covers the basis for Alfie’s case. In his case, he seeks to prove that his dismissal was unfair and unwarranted. Thereby seeking redress from his employee. Many aspects of his case are pertinent to the Acts as the facts indicate.
Secretary of State for the Home Department (Respondent) v. K (FC) (Appellant) Fornah (FC) (Appellant) v. Secretary of State for the Home Department (Respondent) [2006] UKHL 46