0408 802212 david@kiddslaw.com

Kidd's Law Publications Blog

The latest news and updates from Kidd Legal Research Services Pty Ltd

Commissions and mistake re dismissal

Commissions [2014] FCCA 2822 Tiago v John Hopkins Property Pty Ltd (the A claimed for commission she claimed was owing – cl. 17 of the Real Estate Industry Award deals with payment of commission after termination of employment – no commission found to be payable as the employment contract specified otherwise) Dismissal – Mistake by employer [2014] FWC 8877 NSW Yap v Tata Consultancy Services (“Having failed to locate domestic work within Mr Yap’s skill set Mr Yap was dismissed. TCS’s understanding of Mr Yap’s preference for domestic work was a mistake. It was careless. Mr Yap had a preference for domestic work but it was never the case that he would have refused overseas work if that was all that was available. As a result of that misunderstanding no overseas search was properly and appropriately conducted and Mr Yap’s employment was terminated” @10 – no valid reason for dismissal – dismissal harsh...

Dust disease cases – Windfall concerns

See Arentz v Workers' Compensation (Dust Diseases) Board15/8/14 [2014] NSWDC 205 where Neilson DCJ stated that “the recovery of damages at common law does no (sic) affect a worker's right to recover statutory benefits under the Dust Act and, therefore, a worker's common law damages are to be reduced to reflect that entitlement” @30. “In the current case I do not know if any deduction was made by Amaca from its assessment of the plaintiff's damages which led to its offer of compromise. If a deduction were made I do not know how it was calculated. The evidence is silent on those issues. As I have already stated, I can not find that no such deduction was made. Clearly, Amaca ought to have made a deduction. It runs the risk of paying twice” @31. P’s “right to statutory entitlements is not defeated by his common law settlement or by any default of Amaca in doing what the law required it to do”...

Motor and Traffic Law cases

Illegal enterprise In Quine v Keerasawat 27/10/14 [2014] WADC 150 per Herron DCJ, P was rendered a quadriplegic when the vehicle in which he was a passenger left the road and hit a tree. He had no recollection of the circumstances leading up to the accident. D, who was driving, denied owing P a duty of care alleging both were engaged in a joint illegal enterprise at the time of the crash and no duty was therefore owed to P. The defence pursuant to the Offenders (Legal Action) Act 2000 (WA) was also considered. His Honour found that P was so engaged and dismissed his claim on both grounds. D had stolen the car that day, although P was not involved in the theft. By reason of a series of inferences His Honour rejected P’s argument that he was unaware the vehicle was stolen. P had a record for car stealing and mixed with a crowd that stole cars. D left a gathering to “get a car” and returned with a vehicle no one had seen before. P and D had known each other for years. After the crash P was wearing latex gloves consistent with a desire not to leave fingerprints in the stolen car. The test in Miller v Miller (2011) CLR 446 was applied – P was complicit in the theft and was therefore not owed a duty of care. Unlike the P in  Miller v Miller he did not attempt to withdraw from the illegal enterprise prior to the...
Page 11 of 11« First...7891011