Kimhi v SA Drains Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kimhi v SA Drains Pty Ltd [2022] FedCFamC2G 227

File number(s): ADG 435 of 2019
ADG 167 of 2021
Judgment of: JUDGE BROWN
Date of judgment: 18 March 2022
Catchwords: INDUSTRIAL LAW – fair work – dismissal of an employee – general protections – adverse action – disability discrimination proceedings – where proceedings have been delayed as a consequence of the actions of the applicant’s solicitor – costs ordered made against the solicitor for the applicant.  
Legislation:

Fair Work Act 2009 (Cth) ss 117, 125, 351, 365, 366.

Disability Discrimination Act 1992 (Cth) ss 3, 5, 6, 11, 15.

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 13.2, 22.2, rr 13.04, 13.05, 22.06.
Cases cited:

Aon Risk Services Australia Limited v Australian National University 239 CLR 175.

Kolozsvari v BIC Services Proprietary Limited [2021] FCCA 742.

Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200.

Professional Administration Services Centre Pty Ltd v Commissioner for Taxation [2012] FCAFC 180.

Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159.

Welsh v Digilin Pty Ltd [2008] FCAFC 149.
Division: Division 2 General Federal Law
Number of paragraphs: 101
Date of hearing: 18 March 2022 
Place: Adelaide
Counsel for the Applicant: Dr Gray, QC
Solicitor for the Applicant: Starke Lawyers
Counsel for the Respondents: Mr Belperio
Solicitor for the Respondents: Welden & Coluccio Lawyers

ORDERS

ADG 435 of 2019
ADG 167 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JORDAN STEVEN KIMHI

Applicant
AND:

SA DRAINS PTY LTD ACN 610 792 062

First Respondent

SIMON LUKASZ MUCHA

Second Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

18 MARCH 2022

THE COURT ORDERS THAT:

1.Leave be granted to the Applicant to extend time to file his Trial Affidavit and the Annexure book from 22 February 2022 to 18 March 2022.

2.The Trial listed for 22, 23 & 25 March 2022 is hereby vacated.

3.Pursuant to Rule 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 costs in the sum of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00) do be paid by Mr David Starke of Starke Lawyers personally to the Respondent’s solicitors within 28 days of today’s date.

4.The matter is otherwise stayed until the payment of the sum indicated in paragraph 3 herein.

5.The matter is otherwise adjourned until a date and time to be advised upon the application of the Applicant’s solicitors.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2)…

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Details
Case
[2022] FedCFamC2G 227
Decision Date

CaseChat Overview and Summary

Kimhi v SA Drains Pty Ltd is a case in the Fair Work Commission where the applicant, Mr Kimhi, claims that he contracted dermatitis while working as an apprentice plumber for the first respondent, SA Drains Pty Ltd. He further asserts that he was terminated as a result of his disability and that this termination was an adverse action, in breach of the Fair Work Act 2009 (Cth). SA Drains and Mr Mucha oppose the application, arguing that Mr Kimhi has breached court orders and has not pursued his application with due diligence. The court was required to decide whether Mr Kimhi's application should be dismissed on the grounds of a lack of diligence, and whether the time limits for lodging a claim with the Fair Work Commission had been met.

The court found that Mr Kimhi's application for unfair dismissal was made 44 days outside the statutory time limit and was therefore out of time. The court also found that Mr Kimhi's application for adverse action due to disability was also out of time, as it was made after the time limit for lodging a claim with the Fair Work Commission had expired. The court further found that Mr Kimhi had not pursued his application with due diligence, as he had not taken steps to ensure that his claims were made within the relevant time limits. The court noted that the applicant had amended his claim to bring claims under sections 117 and 125 of the FWA, which relate to the national employment standards. However, the court found that these claims were also out of time.

The court ordered that the application be dismissed and that Mr Kimhi bear his own costs, as well as 50 per cent of the costs of the respondents. The court also urged the parties to refine their claims and to consider the issues that needed to be determined at the final hearing. The court emphasised the importance of managing cases with caution and avoiding a scattergun approach to remedies. The court's decision highlights the importance of adhering to time limits when lodging claims with the Fair Work Commission, and the consequences of failing to do so. It also underscores the need for parties to pursue their claims with due diligence and to avoid unnecessary delays in the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

The application is opposed by those representing South Australian Drains and Mr Mucha, who seek the summary dismissal of Mr Kimhi’s application on the basis that he has breached court orders and has demonstratively not pursued his application with due diligence.BACKGROUND By way of background, those proceedings have been amalgamated, I think, by order of Judge Cameron of this court, and they are scheduled to take place next week. Given the competing application of the parties, I have arranged for the matter to be listed before me today, at short notice. By way of background, as I understand it in general terms, the applicant was employed by the first respondent as an apprentice plumber on 27 December 2018. Regrettably, it seems to be reasonably common ground between the parties, that he contracted dermatitis in April of 2019, and as a consequence of that, an application for workers compensation was made, and although there is some controversy about it, it seems that he was terminated in his employment on 6 September 2019. The fair work proceedings were definitely commenced on 7 November 2019. The human rights proceedings seem to have been commenced on 8 June 2021. Originally, as I understand it, Mr Kimhi sought orders pursuant to section 351 of the FWA, claiming that he had been the subject of an adverse action because of his disability. There is now, I think, some controversy about what his precise claim is under the FWA, and I will come to that in a moment. As a dismissed employee, he was entitled to go to the Fair Work Commission pursuant to section 365 of the FWA on the basis of his termination. However, there are time limits which are applicable to that and, in particular, an application in respect of a dismissal dispute has to be made within 21 days after the time the dismissal took effect. The Fair Work Commission is entitled, as a discretion, to extend that time pursuant to section 366(2) when it considers the reasons for the delay, any action taken by the person to dispute the dismissal, the prejudice to the employer, the merits of the application and general considerations of fairness. The overall rationale is that if somebody is seeking to be reinstated, they should make such applications promptly. In any event, it would seem to be the case that the application to the Fair Work Commission was made, I think, sometime in November. It was 44-odd days out of time, and the relevant commissioner declined to extend time. In those circumstances, it may very well be the case that the section 351 application has gone. In any event, that has been the subject of earlier proceedings, and the applicant has amended his claim. He did that on 17 June 2021, and he has now brought claims under sections 117 and 125 of the FWA. In general terms, those are proceedings that relate to what are described as the national employment standards. The FWA creates a number of national employment standards pursuant to section 125 of the FWA. An employer is required to give each employee what is called a Fair Work Information Statement when the employee starts work or as soon as practical thereafter, and that is a statement of an employee’s rights and entitlements in his workplace pursuant to the FWA.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is a significant thing to make an order for costs against a lawyer. Due to this, I must give the lawyer an opportunity to be heard, and I am satisfied Mr Starke has been given that opportunity, and to a certain extent, he has fallen on his sword in respect of that. CONCLUSIONS In all the circumstances of the case, I am satisfied that the proceedings have been delayed as a consequence of Mr Starke’s default and that it is appropriate that he personally bear the costs. I assess those costs in general terms. The amount I am going to allow is 50 per cent of the amount sought by those instructing Mr Belperio, being $7,500.00. I appreciate that is somewhat amorphous, but from my perspective, if, once the costs are paid, consideration could be given to refixing the matter and it has to be - and is a condition precedent to the matter going forward. Very senior counsel have been retained by the applicant. I can only urge everyone to consider where the case is going and to see if it can be refined with some expertise as to what it is about and to what issues have to be determined at final hearing. I have had to pick the case up on the run to a certain extent and try and put it in some degree of chronology. My concern is that there is a somewhat scattergun approach to what remedies. It is a bit like the old games of hoopla we played when we were children. You throw the rubber ring onto the hoopla, and you hope it gets onto a ring. I need to know which ring, or hook we are aiming for, not. It is not the case that, hopefully, if we throw enough hoops, one will land somewhere. At the end of the day, I think these cases have to be managed with some caution. For all of these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

Ratio Decidendi

Legal Principle Established

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