In Hill v Compass Ten Pty Ltd (No. 2)  FCA 815 (3
August 2012), the Federal Court rejected an employee's breach
of contract claim, ruling that the employer was justified in
summarily dismissing him due to a 'persistent
unwillingness' to follow company instructions and procedures,
which constituted a well-founded reason for dismissal.
In August 2011, Paul Hill was engaged as the facilities manager
at Sunshine Lodge and Cottages (operated by Compass Ten Pty Ltd).
The lodge is a residential centre for persons with intellectual
disabilities, many of whom require frequent medical attention.
After two months of service, Mr Hill was summarily dismissed for
serious misconduct, in failing to supervise the administration of
medication, make medical appointments for residents and follow up
police checks for new staff. It was later discovered that Mr Hill
had lied about his first-aid qualifications, by attaching his
son's first aid certificate to his job application.
After his employment was terminated, Mr Hill alleged that
Compass Ten had breached his employment contract, while Compass Ten
maintained that the employee was validly terminated for serious
misconduct, pursuant to the contract.
The advertisement for the position of manager at Sunshine Lodge
stated that a first aid certificate was a requirement for the job.
Mr Hill attached his son's first aid certificate to his
application, later claiming he did this by mistake. He also argued
that he believed he was "entitled" to a first aid
certificate because he had helped his son complete a first aid
course. Justice Cowdroy described these claims as
"inconceivable" and noted that in his application he had
incorrectly written his name as "PAUL (Peter Simon
Christopher) HILL, to more closely reflect the name on the first
aid certificate (Simon Peter Christopher Hill). This was accepted
as a deliberate attempt to deceive Compass Ten, as no legal
documents belonging to Mr Hill include the name 'Peter' and
nobody at Sunshine Lodge ever referred to him as Peter. Given the
importance of holding a valid first aid certificate for the Manager
position and the statutory requirements concerning first aid
trained staff, the court considered that Compass Ten was justified
in summarily terminating Mr Hill's employment.
Despite the fact that concerns regarding Mr Hill's first aid
certificate did not arise until after he was terminated, Compass
Ten was able to subsequently raise this misconduct in support of
the decision to terminate Mr Hill (Concut Pty Ltd v
Worrell  HCA 64; Shepherd v Felt and Textiles of
Australia Ltd  HCA 21).
In relation to duties concerning the medical care of residents,
administration of financial records and attending training
seminars, the court found that Mr Hill had engaged in serious
misconduct. Justice Cowdroy stated that, in isolation, the
employee's failures "may not have reasonably formed a
basis for his dismissal," however the totality of the
employee's conduct was sufficient to constitute a well-founded
reason. The application was, accordingly, dismissed.
In a subsequent judgment of the Federal Court in relation to
costs, the Court awarded costs against the employee on the basis
that he had pursued his breach of contract claim that he knew was
"doomed to fail". In ordering Mr Hill to pay Compass
Hill's costs under section 570(2) of the Fair Work Act
2009 (Cth), the Court held that Mr Hill knew prior to the
proceedings being commenced that he had committed an act which
constituted a ground for summary dismissal and which would
inevitability provide the Company with a complete defence to a
claim for breach of contract as soon as it was discovered.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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