Cook v CFP Management Pty Ltd [2006] QCA 215
Termination by or at instance of employee – February 2007
The Queensland Court of Appeal recently heard a case, relating to the rights and duties of both employers and employees and termination by or at instance of the employee. In the case of Cook v CFP Management Pty Ltd, Mr Cook terminated his own employment and expected to have all outstanding payments, paid to him, including payments in lieu of long service leave.
Background to the case
Mr Cook had a contract of service with Challenger Group. He had been employed by this Group since the 14 April 1994. In October 2002, Mr Cook became aware that Challenger Group was considering a sale of its stockbroking business.
Around the time of November/December 2006 the CEO of Challenger International notified Mr Cook that Challenger First Pacific Ltd had been sold to Bell Potter Securities Ltd. Mr Cook and two other employees (the ‘options team’), were informed that Bell Potter was intending on gradually winding down the stockbroking operations of Challenger First Pacific. However they were told that their employment would continue in accordance with their existing arrangements.
Mr Cook and the options team pursued employment with alternative broking firms. By January 2003 the team had arranged to work for ABN Amro Morgans, another stockbroking firm. On the 5th February Mr Cook submitted a letter terminating his employment with Bell Potter. He made it clear he expected all payments due to be paid to him, including payments in lieu of long service leave.
Trial at First Instance
Mr Cook believed he was entitled to long service leave payments as stated in s 43(3) of the Industrial Relations Act 1999 (QLD). This act states that an employee, who has worked for 7 years continuously, is entitled to a proportionate payment for long service upon termination of services.
The matter was originally heard before the District Court and the Court found in favour of Mr Cook. CPF Management was made to pay $92 168.93, $62 328.82 of this sum was for long service leave and $11 518.06 for payment in lieu of notice.
Appeal
On appeal, CPF Management argued that the trial judge should not have awarded in favour of Mr Cook. They stated that based on the terms of his employment contract and the Industrial Relations legislation in Queensland, he was not entitled to receive any money.
CPF Management relied upon s 43(4)(c)(i) of the Industrial Relations Act 1999 (QLD). This section states that proportionate payment is only payable if the termination is because the employer dismissed the employee for a reason apart from conduct, capacity, performance or in s 43 (4)(c)(ii), because the employer unfairly dismissed the employee. Justice Williams promptly concluded that there was no suggestion of this case being one of unfair dismissal.