Koutalis v Pollett

Case [2015] FCA 1165

FEDERAL COURT OF AUSTRALIA

Koutalis v Pollett [2015] FCA 1165

Citation: Koutalis v Pollett [2015] FCA 1165
Appeal from: Pollett v Koutalis – orders made on 20 May 2015 in Chief Industrial Magistrate’s Court No 2015/356240
Parties: EDWARD KOUTALIS and DAWN FLORENCE KOUTALIS v ADAM WILLIAM POLLETT
File number: NSD 691 of 2015
Judge: RARES J
Date of judgment: 2 October 2015
Catchwords:

INDUSTRIAL LAW – proceedings in Chief Industrial Magistrates Court of New South Wales conducted under small claims procedure in s 548 of Fair Work Act 2009 (Cth) – where s 565(1) gave party right of appeal to Federal Court of Australia from any decision pursuant to s 548 under small claims procedure – where magistrate gave no reasons for final order – whether any basis in s 548 to excuse trial court from ordinary incident of judicial process requiring court to give reasons for final orders

INDUSTRIAL LAW – resignation and termination of employment – whether employee resigned or deemed to have been constructively dismissed under s 386(1)(b) of Fair Work Act 2009 (Cth) – whether magistrate failed to consider all evidence before him – consideration of whether reasonable person in position of parties would have understood employee to have resigned – whether context suggested employee not resigning

Legislation: Fair Work Act 2009 (Cth)
Small Claims Act 1974 (NT)
Cases cited: Bayram v Benton (t/a Digital Dynatronics Australia) (1994) 117 FLR 414
Fox v Percy (2003) 214 CLR 118
Jackamarra v Krakouer (1998) 195 CLR 516
Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72
Sovereign House Security Services Limited v Savage [1989] IRLR 115
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Wainohu v State of New South Wales (2011) 243 CLR 181
Date of hearing: 2 October 2015
Place: Sydney
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 49
Counsel for the Appellants: Mr G Melick SC
Solicitor for the Appellants: Zraika Partners Lawyers
Counsel for the Respondent: Ms A Perigo (pro bono)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 691 of 2015
BETWEEN:

EDWARD KOUTALIS
First Appellant

DAWN FLORENCE KOUTALIS
Second Appellant
AND:

ADAM WILLIAM POLLETT
Respondent

JUDGE:

RARES J

DATE OF ORDER:

2 OCTOBER 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The applicants be granted an extension of time in which to file a notice of appeal.

2.On or before 7 October 2015 the applicants file a notice of appeal in the form of the draft amended notice of appeal after deleting draft grounds 5 and 6 and amending draft ground 3.

3.The draft notice of appeal so amended be treated for the purposes of the hearing of the appeal as the notice of appeal.

4.The appeal be allowed.

5.The order made by the Chief Industrial Magistrate’s Court on 20 May 2015 be set aside and in lieu thereof it be ordered that:

“1.The application for recovery of…

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Koutalis v Pollett [2015] FCA 1165
Case
[2015] FCA 1165
Decision Date

CaseChat Overview and Summary

The appeal in Koutalis v Pollett involves an employee, Mr Pollett, who took proceedings against his employer, Mr Koutalis, in the Chief Industrial Magistrates Court of New South Wales. The proceedings were conducted under the small claims procedure provided in section 548 of the Fair Work Act 2009 (Cth). The primary dispute revolves around whether Mr Pollett resigned from his employment or was constructively dismissed under section 386(1)(b) of the Fair Work Act. The appeal to the Federal Court of Australia concerns the magistrate's decision and the lack of reasons provided for the final order.

The central legal issues in this appeal concern the necessity for reasons for judgment and whether the magistrate properly considered all evidence. The first issue pertains to whether the magistrate erred by failing to provide any or adequate reasons for the final order. This issue is grounded in the fundamental principle that courts must give reasons for their decisions, as established in cases such as Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria and Wainohu v State of New South Wales. The second issue is whether the magistrate failed to consider all evidence in reaching the conclusion that Mr Pollett was constructively dismissed. This requires a review of whether the magistrate properly assessed the evidence to determine if Mr Pollett's resignation was valid or if he was constructively dismissed.

In addressing these issues, the court examined the importance of providing reasons for judicial decisions, emphasizing that such reasons are necessary to facilitate the right of appeal and enhance its utility. The court noted that while section 548 of the Fair Work Act allows for a largely inquisitorial procedure, the magistrate must still highlight the critical issues that will determine the outcome, allowing parties to address them effectively. The court found that the magistrate did not adequately provide reasons for the final order, and this failure to give reasons is a significant procedural error. Additionally, the court held that the magistrate did not consider all the evidence in arriving at the conclusion that Mr Pollett was constructively dismissed.

The final orders of the court included granting an extension of time for the appellants to file a notice of appeal, allowing the appeal, and setting aside the order made by the Chief Industrial Magistrate’s Court. The appeal was allowed, and the order made by the Chief Industrial Magistrate’s Court on 20 May 2015 was set aside, with the application for recovery of money dismissed. The court's decision underscores the critical nature of providing reasons for judicial decisions and ensuring that all relevant evidence is considered.

Orders

Orders of the court

1. The applicants be granted an extension of time in which to file a notice of appeal.

2. On or before 7 October 2015 the applicants file a notice of appeal in the form of the draft amended notice of appeal after deleting draft grounds 5 and 6 and amending draft ground 3.

3. The draft notice of appeal so amended be treated for the purposes of the hearing of the appeal as the notice of appeal.

4. The appeal be allowed.

5. The order made by the Chief Industrial Magistrate’s Court on 20 May 2015 be set aside and in lieu thereof it be ordered that:

“1. The application for recovery of money filed on 3 December 2014 be dismissed.”

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The notice of appeal that will be filed has been narrowed to four grounds, that essentially give rise to two issues: namely first, whether his Honour erred by failing to give any or any adequate reasons for his decision, and, secondly, whether he failed to consider all of the evidence in arriving at his factual conclusion that Mr Pollett had been constructively dismissed from his employment.The necessity for reasons for judgment In Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72 at 83-84 [26], Gaudron, Gummow, Hayne and Callinan JJ referred to the need to give reasons for decisions as being an ordinary rule. There, they said that reasons for refusing leave need not be extensive, and that in appropriate cases, little more might be required than perhaps a very short statement of the chief conclusions that the judge refusing leave had reached. They said, critically:The disappointed applicant (and any court asked to review the refusal) must, however, be able to know from the reasons given by the primary judge why the judge reached the decision to refuse leave.(emphasis added) More recently, in Wainohu v State of New South Wales (2011) 243 CLR 181 at 213-214[54]-[56] French CJ and Kiefel J said that the requirement to give reasons for judgment was an ordinary incident of the judicial process of general application for all persons exercising judicial functions. The importance of giving reasons for judicial decisions was also emphasised by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at 126 [24], where their Honours said that after the general facility of appeal was introduced and the number of civil jury trials reduced, there had been an:increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision (Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666-667 citing Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257-258, 268-273, 277 to 281). Such reasons are, at once, necessitated by the right of appeal and enhance its utility. (emphasis added) The nature and extent of any reasons which a judge or magistrate must give after conducting a proceeding under s 548 of the Act must accommodate itself to the way in which the procedure is governed by s 548(3). In the analogous context of proceedings under the Small Claims Act 1974 (NT), Kearney J observed in Bayram v Benton (t/a Digital Dynatronics Australia) (1994) 117 FLR 414 at 420, that the procedure was largely and necessarily inquisitorial, particularly when parties were not legally represented and that:Nevertheless, when, as here, the proceedings are conducted in a largely inquisitorial manner, the court must bring to the parties' attention the critical issue on which its decision is likely to turn, so that they may have an opportunity to address it. This ensures that a party affected by the decision is given the opportunity to deal with relevant matters adverse to his interests which the court proposes to take into account.

Ratio Decidendi

Legal Principle Established

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