His Honour found the settlement to be reasonable. Advice by insurer’s solicitors had been that Gordon was likely to succeed in his claim. His Honour was persuaded that it was open to a Court to find that Gordon was entitled to 12 months’ notice of his termination. His Honour also found that the insurer’s solicitors had underestimated the value of Gordon’s unpaid sales claim. Whilst it was unlikely anyone could have predicted that Gordon’s assessed costs would exceed $300,000 (being triple the insurer’s solicitors’ estimate), His Honour considered settlement on a “plus costs” basis to be reasonable.
Was there a loss under the Policy?
The insuring clause in the policy provided that the insurer would pay on behalf of Southern Classic: “All loss on account of any claim against the company for an employment practice breach”. “Loss” was relevantly defined as: “Damages, compensation, settlements to which we have consented, claimant costs and defence costs which a person or entity becomes legally obliged to pay on account of a claim”. “Employment Practice Breach” was relevantly defined as: “Unfair or wrongful dismissal from or termination or discharge of employment (either actual or constructive, including breach of an implied contract)…”.
It was argued on behalf of the insurer that it did not consent to the settlement achieved at the mediation and as such, Southern Classic had not suffered any “loss” for the purposes of the Policy. His Honour did not agree. In circumstances where His Honour considered the settlement was reasonable, he considered it should be treated as a release from an asserted liability for the purposes of the insuring clause and that it was a “loss” for the purposes of the policy.
Did any exclusions apply?
It was submitted on behalf of the insurer that the claim was excluded on a number of bases. His Honour’s views on the application of these exclusions are briefly summarised as follows:
- Non-monetary benefit: Non-monetary benefits such as mobile telephone costs and travel allowances are excluded under the policy. The policy does not respond to a small part of Gordon’s claim which were for these amounts.
- Severance or redundancy payment: His Honour disagreed with the insurer’s argument that Gordon’s claim should be characterised as “severance or redundancy payments or entitlements”. His Honour considered Gordon’s claim to be for “damages for dismissal without due notice” and that the effect of the construction of the exclusion being contended by the insurer would remove from the ambit of the policy a very obvious, and perhaps the most commonly encountered, form of “Employment Practice Breach”.
- Bonus or incentive payments: The policy does not respond to the part of Gordon’s claim for loss of bonuses but the exclusion will not apply to exclude Gordon’s claim for commissions on car sales. Noting that Gordon’s remuneration comprised a relatively modest base salary plus commissions, His Honour did not believe that commission payments could be characterised as being an “incentive payment” under the exclusion (which His Honour opined was intended to exclude liability for one-off or occasional payments, not the major component of a person’s remuneration).
- Contractual liability: It was accepted that the policy did not respond to payments to which an insured was contractually entitled, including superannuation payments.
Applying the above findings to the calculations contained in the Ivey Report, His Honour found that this hypothesis would result in the policy responding to some 46% of Gordon’s claim. Adopting an admittedly broad brush approach, His Honour concluded that 46% of the claim by Gordon should be treated as loss to which the policy responds and therefore, that same proportion of the settlement sum (i.e. 46% of $375,000) should be adopted as representing that part of the settlement to which the policy responds.
It followed that the $306,000 costs component of the settlement must be similarly confined, with His Honour finding that Southern Classic was entitled to indemnity for 46% of the costs that it agreed to pay Gordon.
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