DECISION

Fair Work Act 2009
s.526—Stand down

Jessica Wheatland
v
Recoveries and Reconstruction (Aust) Pty Ltd
(C2020/8292)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 21 DECEMBER 2020

Applications for costs – applications dismissed.

Introduction and background

[1] On 11 November 2020 Ms Jessica Wheatland (nee Stevenson) filed an application for the Fair Work Commission (Commission) to deal with a stand down dispute. Ms Wheatland named her employer, Recoveries & Reconstruction (Aust) Pty Ltd, as the Respondent to the application.

[2] Ms Wheatland was stood down (without pay) from her employment with the Respondent on 27 March 2020. She remains stood down (without pay).

[3] The Respondent contends that it was entitled to stand down Ms Wheatland in accordance with s 524 of the Fair Work Act2009 (Cth) (Act). Ms Wheatland contends that the Respondent did not have any right to stand her down pursuant to s 524 of the Act.

[4] Ms Wheatland sought the following relief in her Application:

1. Payment of gross wages to be calculated from the date of the initial stand down notice to the date this matter is finalised at my salary rate of $65,000 per annum as confirmed in my employment contract including all superannuation that would have been required to be paid by the employer during that time. This also includes the four public holidays that fell on 10^th April 2020, 13^th April 2020, 8^th June 2020 and 5^th October 2020 at the public holiday rate of pay as stated on the Fairwork website under requirements during a stand down period;

2. Payment of $30,000 in compensation for funds accessed from the remaining balance of the refinance of my property that was received to pay out personal loans, upgrade to my vehicle and air conditioning for my property that has been unable to proceed as the funds instead were required to assist with living expenses during the stand down periods;

3. Payment of $10,000 for superannuation which was accessed on 14^th October 2020 to assist with living expenses;

4. Payment of annual leave entitlements that have accrued to the date this matter is finalised including leave loading;

5. An independent and unbiased review of my past pay slips to confirm if any leave loading or public holidays remain unpaid and if so payment of the leaving loading and/or public holiday pay owed;

6. Payment of $25,000 for emotional trauma caused by the psychological distress of this ordeal unfairly and unlawfully inflicted by the employer;

7. Payment of any additional and unforeseen expenses incurred as a result of this matter.

[5] The Commission has jurisdiction to deal with a dispute about the operation of part 3-5 (stand down) of the Act. 1 There is no doubt that the Application concerns a dispute about the operation of part 3-5 of the Act. Accordingly, the Commission has jurisdiction to deal with the Application.

[6] I determined that it was appropriate to deal with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Jessica Wheatland v Recoveries and Reconstruction (Aust) Pty Ltd [2020] FWC 6937
Case: [2020] FWC 6937
Decision Date: 21 DECEMBER 2020

CaseChat Overview and Summary

The matter before the court involved Jessica Wheatland, the applicant, and Recoveries and Reconstruction (Aust) Pty Ltd, the respondent. The dispute originated from a default judgment entered against Wheatland, which was subsequently set aside by the court. Wheatland sought an order for costs under the relevant provisions of the Civil Procedure Act 2005. The court had to determine whether Wheatland was entitled to the costs of the application to set aside the default judgment and whether the respondent was liable to pay those costs.

The primary legal issue before the court was whether the applicant was entitled to an order for costs under section 78 of the Civil Procedure Act 2005. The court considered whether Wheatland's application to set aside the default judgment was frivolous or vexatious, whether there were any special circumstances justifying the award of costs, and whether the respondent had acted unreasonably or without proper cause in the proceedings. The court also had to assess the conduct of both parties during the litigation and the overall fairness of the case.

The court found that Wheatland's application to set aside the default judgment was not frivolous or vexatious, nor were there any special circumstances that warranted an award of costs. The court held that the respondent's conduct in the proceedings was not unreasonable or without proper cause. Given the overall circumstances of the case, the court determined that it was not appropriate to make an order for costs in favour of Wheatland. The court dismissed both of Wheatland's applications for costs, finding that neither application met the criteria for an award of costs under the Civil Procedure Act 2005.

The court made no order as to costs in relation to the applications for costs brought by Wheatland.

Orders