Craig Keogh v P & R Mitchell Contractors (Vic) Pty Ltd

[2011] FWA 8031

[2011] FWA 8031

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Keogh
v
P & R Mitchell Contractors (Vic) Pty Ltd
(U2011/6574)

COMMISSIONER BISSETT MELBOURNE, 24 NOVEMBER 2011

Application for unfair dismissal remedy.

[1] Mr Craig Keogh (the Applicant) has made an application under s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal.

[2] Mr Keogh was employed by P & R Mitchell Contractors (Vic) Pty Ltd (the Respondent) from 9 February 2009 until 10 February 2011 when his dismissal took effect. He was employed as a Crane Operator which involved operating heavy machinery such as excavators and mobile cranes. 1

[3] Mr Keogh’s application for an unfair dismissal remedy was made on 31 March 2011. By decision of Fair Work Australia ([2011] FWA 5070) it was determined that Mr Keogh did not become aware of the termination of his employment until 30 March 2011. His application was therefore made within the time limit prescribed by the Act.

[4] This matter was first listed for hearing of the merits of the case on 7 and 8 November 2011. Prior to the hearing I was contacted by Mr Wainwright of the Construction, Forestry, Mining and Energy Union (CFMEU), representing Mr Keogh, advising that agreement had been reached between the parties and the proposed hearing dates should be vacated.

[5] On 10 November 2011 I received correspondence from Mr Wainwright requesting that the matter be re-listed urgently as the Respondent had failed to implement any elements of the settlement reached between the parties.

[6] The matter was therefore listed for hearing on 15 November 2011.

[7] At the hearing of the matter Mr Keogh was represented by Mr Wainwright. The Respondent failed to appear. Mr Wainwright advised me that he had, just prior to the commencement of proceedings, received an email form the Respondent advising that it had implemented those elements of the agreement that were outstanding. Mr Wainwright indicated that he wished that the hearing continue so that he could put submissions with respect to the matter.

[8] My chambers had not, at this time, received any indication from the Respondent that it would or would not be attending the hearing. The notice of listing of the hearing had been sent by email and mail to both parties so there was no reason to assume the Respondent was not aware of the hearing. That the Respondent emailed the Applicant an hour or so prior to the hearing indicating it had complied with the agreement leads me to conclude it was aware of the hearing but chose not to attend, assuming it had rectified the outstanding issues.

[9] I should make it clear that it is not to the Respondent to assume, on any grounds, that a hearing listed before Fair Work Australia will not proceed, regardless of any actions it may claim it has taken. A decision to cancel a hearing before me at Fair Work Australia will be made by me and conveyed to the parties by my associate. A decision that a hearing will not proceed is not a decision a party can make. In any event I should make it clear that there is no evidence that the Respondent attempted to contact my chambers to advise it would not be attending the hearing.

[10] The hearing proceeded on 15 November 2011.

Submissions

[11] Mr Wainwright put to me in submissions that I have broad powers under ss.591 and 593 of the Act to determine how a matter might be dealt with and power under s.600 to determine a matter in the absence of a person who is required to attend the hearing.

[12] On this basis Mr Wainwright submits that I exercise those powers available to me and, in the absence of the Respondent, proceed to deal with the application and grant orders in the form of the agreement previously reached between the parties as to the settlement of the matter.

[13] That agreement provided that the Respondent would pay to the Applicant an amount of $3515 (net) and would pay into the Applicant’s Incolink account an amount of $1932.

[14] Whilst Mr Wainwright was hopeful that the payments, as agreed, had been made to Mr Keogh as indicated in the email from the Respondent, he submitted that I consider the position he had put and, had the payments not been made, issue an order requiring payment as soon as possible.

[15] Whilst I indicated on transcript a predisposition to making the orders sought by Mr Wainwright, I also indicated that I would need to consider my powers under the Act to do as he sought.

Consideration

[16] Section 591 of the Act provides that Fair Work Australia is not bound by the rules of evidence in relation to a matter before it. This is undoubtedly true. Its relevance to the submissions of Mr Wainwright is not clear.

[17] Section 593 of the Act, as might be relevant to this matter, states that the Tribunal is not required to hold a hearing in performing functions or exercising powers except as provided for in the Act. Whilst this removes an implied obligation in some circumstances to not have to hold a hearing, the principles of natural justice must apply to however the proceedings may be conducted. 2

[18] Section 600 of the Act enables Fair Work Australia to determine a matter in the absence of a party required to attend before it. Again, however, any decision to do so must not dispense with the need to observe natural justice. 3

[19] Whilst it was not put by Mr Wainwright, s.590 does allow Fair Work Australia to inform itself in such a manner as it considers appropriate.

[20] Whilst the Act does give Fair Work Australia broad powers, it is clear that there are underlying obligations in the performance of those powers by the Tribunal.

Can I make the order sought?

[21] Chapter 3 Pt 2-3 Div 4 of the Act provides for remedies for unfair dismissal. Section 390 in particular states:

390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

[22] The available remedies for unfair dismissal are reinstatement 4 or compensation.5

[23] Fair Work Australia’s power to make such an order can clearly only be exercised if Fair Work Australia is satisfied that the person is protected from unfair dismissal and the person has been unfairly dismissed. This much is clear from s.390(1). Prior to me making an order as sought by Mr Wainwright I must satisfy myself on these two matters, regardless of what other powers I may have.

[24] There is a jurisdictional issue raised in the submissions of the Respondent and that is that this is a case of genuine redundancy. If that is the case (and I make no finding) s.385(d) of the Act would preclude a finding that the Applicant has been unfairly dismissed.

[25] Further, s.392 of the Act states in part:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

[26] This suggests that the only order I may make is that compensation be paid to the Applicant, not that some amount be paid into the Incolink fund.

Conclusion

[27] Whilst I appreciate the concerns of the Applicant in having this matter finalised and his frustration that payments undertaken to be made by the Respondent have not eventuated, I am not convinced that, considering the requirement to afford natural justice to the parties, I can make any orders against the employer without giving them a chance to be heard.

[28] Further, even if I decide to make orders without hearing from the Respondent I consider s.392 of the Act limits the orders I can make such that I cannot make the orders sought by the Applicant, particularly in respect of the payment into the Incolink fund. It may be that there is an argument that payment into Incolink is a payment to the Applicant but directed into a nominated account but I do not consider I have enough information before me to make such a ruling.

[29] In considering all of these issues I decline to make the orders as sought by the Applicant at this stage.

Further hearing

[30] On the basis of the conclusion I have reached above the matter will be listed for further hearing on 5 December 2011 at 11am. A separate notice of listing shall be issued.

[31] I would remind all parties, but in particular the Respondent, that it is required to attend that hearing. Should it fail to do so I shall have no option but to accept the submissions put to me by the Applicant with respect to the status of the redundancy and that the dismissal was unfair.

[32] Should it be the wish of the Respondent that I rely on its written material as filed it should advise my chambers and Mr Wainwright for the Applicant by 5.00pm Wednesday 30 November 2011.

COMMISSIONER

Appearances:

Mr Wainwright of the CFMEU for the Applicant

Hearing details:

2011.
Melbourne:
November 15.

 1   Exhibit K2, paragraph 3.

 2   Explanatory Memorandum, Fair Work Bill 2009 (Cth) paragraph 2281.

 3   Explanatory Memorandum, Fair Work Bill 2009 (Cth) paragraph 2308.

 4   Fair Work Act 2009 s.391.

 5  Fair Work Act 2009 s.392.

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