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Unfair Dismissal: Susanna Ma v Expeditors Pty Limited [2014] NSWSC 859

Compensation was awarded to Ms Susanna Ma, a former employee of Expeditors Pty Ltd because she was not given reasonable notice of the termination of her employment contract. 


Susanne Ma v Expeditors Pty Ltd [2014] NSWSC 859

Decision

Compensation has been awarded to Ms Susanna Ma, a former employee of Expeditors Pty Ltd (Expeditors) after she was not given reasonable notice of the termination of her employment contract by her employer Expeditors Pty Ltd (Expeditors).

Accusation of Misconduct

Expeditors argued that the employee was involved in misconduct that justified immediate termination. This allegation of misconduct was the Ms Ma’s failure to disclose a conflict of interest or related party transaction when she executed financial and corporate certificates and authorised invoices for payment of services to a cleaning company in which her brother had a financial interest.

The Court found that any potential conflict of interest was removed by the Expeditors conduct in engaging with the Ms Ma’s brother during negotiations for the cleaning contract, and in having the employee authorise invoices.

As misconduct was not found, the employer was required to give reasonable notice on termination of employment. As there was no express term in the contract of employment regarding notice of termination and this meant Expeditors was required to provide reasonable notice of termination.

Ms Ma had argued that reasonable notice of termination was 12 months. The Court determined reasonable notice of termination to be ten months. The key factors relevant to this determination were the following:

  • Ms Ma had 24 years ‘service.
  • Ms Ma was 49 years old at the date of termination.
  • Ms Ma had significant responsibility (as reflected in her remuneration); and
  • It was likely to take Ms Ma an extensive period of time to obtain equivalent alternative employment.

There was substantial evidence to show that Ms Ma took reasonable steps to search for alternative employment so there had been no failure to mitigate loss. 

Long Service Leave

Ms Ma also claimed that the accrued long service leave paid to her should have included amounts for substantial bonuses she had received. Expeditors argued that Ms Ma was not entitled to bonuses as she earned over the threshold amount of $144,000 when superannuation contributions were taken into account. The Court found in favour of Ms Ma. The employment contract did not fix an ordinary time rate of pay and so the employee’s ordinary pay is considered to be the average weekly wage earned by the worker. The Court held, as a matter of statutory interpretation that weekly wage does not include superannuation.

 * PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.