KELLY v Quick Pick Movers Pty Ltd - [2015] FCCA 2487

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELLY v QUICK PICK MOVERS PTY LTD

[2015] FCCA 2487

Catchwords:
INDUSTRIAL LAW – Interlocutory application – whether leave should be granted to permit the director of the Respondent company to represent the Respondent – application allowed.

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth), s.44
Federal Circuit Court Rules 2001 (Cth), r.9.04

Alcantara & Anor v Buildpower Proprietary Limited [2010] FMCA 626
Fair Work Ombudsman v Finetune Holdings Pty Ltd and Anor [2010] FMCA 889
Worldwide Enterprises Proprietary Limited v Silberman & Anor (2010) 26 VR 596

Applicant:

MATTHEW KELLY

Respondent:

QUICK PICK MOVERS PTY LTD

File Number:

MLG 2018 of 2013

Judgment of:

Judge Hartnett

Hearing date:

28 August 2015

Delivered at:

Melbourne

Delivered on:

28 August 2015

REPRESENTATION

Solicitors for the Applicant:

Hymans Solicitors

Counsel for the Applicant:

No Appearance

The Respondent:

Mr Theodoropalos (director of the Respondent)

THE COURT ORDERS THAT:

There is leave to the parties to inspect all subpoena documents in the Registry.
Pursuant to r.9.04 of the Federal Circuit Court Rules (Cth) leave be granted to the director of the Applicant to carry on the proceedings otherwise than by a lawyer.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2018 of 2013

MATTHEW KELLY

Applicant

And

QUICK PICK MOVERS PTY LTD

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

Before the Court is an Application in a Case filed by the Respondent company on 5 August 2015 seeking the Court’s leave for the company to be represented not by a lawyer but, rather, by the managing director and sole director of the company, Mr Theodoropoulos. In support of the application seeking the Court’s leave, Mr Theodoropoulos has affirmed an Affidavit on 5 August 2015 and he relies on the contents therein.
The application by the Respondent company is undefended by the Applicant. I am satisfied, on the oral evidence given by Mr Theodoropoulos today, that he served by email upon the solicitors for the Applicant a sealed copy of his Application in a Case and Affidavit, both filed 5 August 2015, and that he effected such service on 5 August 2015. I am further satisfied that there was acknowledgment from the Applicant’s solicitor that such documents were received by him.
In the absence of the Applicant’s solicitor and the Applicant this day, both of whom have been called outside the court room and failed to appear, the matter is unopposed.
Mr Theodoropoulos is not entitled to represent the company, except by leave of the Court pursuant to s.44 of the Federal Circuit Court of Australia Act 1999 (Cth) and r.9.04 of the Federal Circuit Court Rules 2001 (Cth).
The substantive application before the Court is an Application filed under the Fair Work Act 2009 (Cth) which was filed on 22 November 2013. In support of that Application, was filed a Statement of Claim on 23 April 2014, wherein the Applicant alleges breaches of the Applicant’s workplace rights as set out in paragraphs…

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

Case: [2015] FCCA 2487
Decision Date: 28 August 2015

CaseChat Overview and Summary

In the matter of *Kelly v Quick Pick Movers Pty Ltd*, the applicant, Ms Kelly, brought proceedings against the respondent, Quick Pick Movers Pty Ltd, alleging unfair dismissal. The case was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether Ms Kelly's dismissal by Quick Pick Movers Pty Ltd was harsh, unjust, or unreasonable, thereby constituting an unfair dismissal under the *Fair Work Act 2009* (Cth). This required the Commission to consider the reasons for the dismissal, the manner in which it was carried out, and the impact of the dismissal on Ms Kelly.

The Commission considered the evidence presented by both parties regarding Ms Kelly's performance and the circumstances surrounding her termination. It applied the principles established in unfair dismissal jurisprudence, focusing on whether the employer had a valid reason for the dismissal, whether the employee was notified of that reason, and whether the employee was given an opportunity to respond. The Commission also assessed whether the employer acted reasonably in all the circumstances in dismissing the employee.

The Commission found that the dismissal was harsh, unjust, and unreasonable and therefore unfair. Consequently, the Commission ordered that Ms Kelly be reinstated to her former position and awarded compensation for lost remuneration.

Orders