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UNFAIR DISMISSAL CASE SETTLED AGAINST

PATENT AND TRADE MARK ATTORNEYS

Berrigan Doube Lawyers were successful in obtaining damages for a client in February 2007 against a large firm of Patent and Trade Mark Attorneys (“the Defendant”). The client had been employed with the Defendant for a period of nine months. The client’s employment was terminated after it was alleged the client was involved in a security breach.

After seeking our advice, an Application was filed on behalf of the client in the Australian Industrial Relations Commission (“the Commission”) for Relief in Relation to Termination of Employment on the grounds that the client’s termination of employment was harsh, unjust or unreasonable pursuant to section 643(1) of the Workplace Relations Act 1996 (“the Act”).

The Defendant raised a jurisdictional objection to the Application on the grounds that it did not employ 100 or more employees at the time of the client’s termination of employment, as required by the Act. The Defendant raised the objection on the basis that the Defendant comprised of a number of trustees of a trust who were the employer of the client. It further argued that as they were trustees, they could not be employees of the Defendant. By not including the trustees of the trust as employees, the client could not satisfy the 100 employee threshold imposed by the Act. We argued that simply because a trustee had several duties, it did not render them immune from their duty to the trust as an employee.

The issue of whether a trustee could also be an employee had never been determined by the Commission and accordingly, the matter was set down for a jurisdiction hearing to be determined before the Commission. As directed by the Commission, submissions were filed by both parties along with affidavits and supporting material.

During a short witness summons hearing in the matter, it was recommended to the parties by the Commission that they attend a conciliation conference before the jurisdiction hearing in order to allow the parties to mediate the dispute.

At the conciliation conference, discussions were entered into between parties, and we were successful in convincing the Defendant to settle the matter with a favourable payout to our client. We were also successful in preventing our client from incurring further significant legal costs associated with running a jurisdiction hearing and a possible subsequent arbitration hearing.

If you have an unfair dismissal or unlawful dismissal matter, please do not hesitate to contact us for more information.