Miss Jill Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet

[2013] FWC 5995

[2013] FWC 5995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Jill Lambert
v
Jetscape Travel Pty Ltd T/A Travelscene/ByoJet
(U2012/14467)

COMMISSIONER SPENCER BRISBANE, 30 AUGUST 2013

Application to vary order.

[1] This decision relates to an application filed by Jetscape Travel Pty Ltd T/A Travelscene/BYOjet to vary an Order for compensation issued by the Commission, as presently constituted, in relation to an application for unfair dismissal remedy filed by Ms Jill Lambert. While Jetscape Travel Pty Ltd T/A Travelscene/BYOjet is strictly speaking the Applicant in relation to this decision I will continue to refer to them as the Respondent for continuity with the two previous decisions issued in relation to the dispute between these two parties. 1

[2] The Order issued on 26 July 2013 was in the following terms:

“Further to the Decisions issued on 21 June 2013 and 25 July 2013, 2 I order that the Respondent pay to the Applicant, as compensation in lieu of reinstatement, an amount of $21,250, to be taxed according to law. This amount is to be paid to the Applicant within 21 days of the date of this order.”

[3] The effect of the Order is that the compensation in lieu of reinstatement was payable by 16 August 2013. This application has been filed some 4 days after the date for compliance with the Order.

Background

[4] On 21 June 2013 the Commission issued a decision in which the Commission held that the dismissal of the Applicant by the Respondent was harsh, unjust or unreasonable (the substantive decision).

[5] The substantive decision was issued after the parties filed material and convening a Hearing in the matter at which both parties were represented by Counsel.

[6] Directions were issued in relation to the matter by which both parties were directed to file all submissions and evidence in relation to the matter.

[7] In submissions in chief the Applicant submitted in relation to remedy that reinstatement was not sought but that compensation was an appropriate order. The Applicant submitted that any order of compensation would not affect the viability of the Respondent’s business as she alleged that the evidence was that the Respondent was a thriving business.

[8] In reply the Respondent filed very brief submissions being of some 12 dot points. In relation to the majority of the Applicant’s submissions or allegations, the Respondent submitted that they were “irrelevant” and thereafter chose not to respond to those allegations. The Respondent did not seek to permission to file any further submissions as to remedy, should that become necessary, but chose to do so in relation to costs, should that become a relevant consideration.

[9] At the conclusion of the Hearing, the parties agreed that written closing submissions should be filed once the transcript of evidence has been received and considered. Directions were set for the filing of closing submissions.

[10] In closing submissions the Applicant reiterated her submission regarding the effect of an order of compensation on the Respondent and that she was seeking the maximum compensation payable under the Act.

[11] Counsel for the Respondent provided written submissions in regard to remedy. The Respondent did say in closing submissions “the Respondent would like to be heard on...the amount of compensation and costs”. However the Respondent did make brief submissions as to the quantum of compensation in the event that the Commission found in favour of the Applicant. The Respondent did not specifically respond to the Applicant’s submissions regarding remedy, particularly those submissions as to the effect it would have on the viability of the Respondent’s business other than in general terms.

[12] At the conclusion of the substantive decision the Commission directed the parties to file submissions specifically in relation to remedy as the Commission did not consider that the material before it was sufficient to consider the requirements pursuant to s.392 of the Act.

[13] Both parties filed submissions in accordance with those Directions. The Applicant filed an outline of submissions and further affidavit of the Applicant. The Respondent filed an outline of submissions with no supporting affidavit. No supporting evidence, as is now filed in submission, was filed in support of the Respondent’s contentions. The submissions and evidence now filed should have been made at that time.

Respondent submissions as to the variation

[14] The application, the subject of this decision, was filed on 20 August 2013 on a Form F1 Application. The title of the application has been amended, by the Respondent, to “[A]pplication to vary order dated 26 July 2013”. The amendment has been made to include reference to 26 July 2013 being the date of the Order the subject of the application.

[15] Under the item “[P]rovision(s) under which application is made” the Respondent has incorrectly referred to “[S]ection 603 of the Fair Work Australia Rules 2010”. I take the application to be made under s.603 of the Fair Work Act 2009 (Cth) (the Act).

[16] The Respondent seeks that the order be amended to allow for payment in 3 equal calendar monthly instalments to commence on 28 August 2013. The Applicant objected to this and sought that the Order be complied with by the Respondent.

[17] The grounds for the application are said to be that pursuant to s.393 of the Act “FWC may permit an employer to pay (an) amount required by instalments” (sic). This is the first time in proceedings that the Respondent has placed any reliance upon s.393 of the Act.

[18] In support of the application the Respondent filed an affidavit of Mr Leonard Padowitz, Owner and Manager of the Respondent. Mr Padowitz stated that the Respondent is a “modest family business reliant on the financial backing of my family” 3. Annexed to Mr Padowitz affidavit is a statement of the current financial position of the company. Relevantly Mr Padowitz refers to the Respondent as being “just profitable”. The Respondent submitted that the Respondent has 24 employees dependent upon it for employment.

[19] Mr Padowitz deposed that $7125.00 has already been paid to the Applicant under the Order.

[20] An opportunity was provided to the Respondent to confirm that the Form F1 application and supporting documentation were the extent of the material that the Respondent relied upon in the application pursuant to s.603 of the Act. The Respondent did provide brief submissions in response to a further submission filed by the Applicant’s representative but they referred primarily to a costs application currently on foot between the parties.

[21] As far as is relevant to this decision the Applicant, through her Counsel, submitted that the evidentiary material provided by the Respondent in support of the application was insufficient because it did not provide the financial position of “BYOJet” a related entity to the Respondent in this matter. The Respondent submitted that BYOJet was not a stand alone or profitable business at this time and that the financial information provided was the correct and relevant information in relation to this application. The Respondent confirmed their submission that the Respondent is not a big or successful employer.

Consideration

[22] Section 603 of the Act provides:

603 Varying and revoking the FWC’s decisions

(1) The FWC may vary or revoke a decision of The FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If The FWC makes a decision to make an instrument, The FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

[23] The exceptions in subsection 3 are not relevant to this decision. Presumably the Respondent applies pursuant to s.603(2)(b)(i) of the Act.

[24] The Respondent does not seek to vary or revoke the “decision” in this matter but rather the Order. The Commission is satisfied that the power pursuant to s.603 of the Act extends to varying Orders of the Commission. In this regard s.598 of the Act is relevant:

598 Decisions of the FWC

(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes).

Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.

(2) If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC’s decision to make or vary the instrument in the particular terms decided.

(3) A decision of the FWC that is described as an order must be made by order.

Note: An example of a decision that is described as an order is a bargaining order.

(4) A decision of the FWC that is not described as an order may be made by order.

[25] The Act does not specify the matters to be taken into account in exercising the power to vary or revoke a decision under s.603. However the power to vary or revoke has been considered by the Commission previously in the matter of Re Rheem-Rydalmere Plant Industrial Action Order 2002 4. In that matter Justice Munro said:

“The effectiveness of the power confers a discretion at large, but that discretion should be guided by the principles and considerations that go to the merits of making or refusing an order made under section 127. The applicant must satisfy the Commission by clearly showing that the reasons for making the order sought to be revoked no longer prevail.” 5

[26] It is noted that the decision in Re Rheem-Rydalmere is a decision in relation to an application to revoke an Order but the principle remains applicable, in my view, to an application to vary. An Applicant applying to the Commission to vary an Order must satisfy the Commission that the reasons behind making the Order in its terms no longer prevail or have changed substantially so as to warrant reconsideration.

[27] In this matter the Respondent was represented by Solicitors and Counsel. The Applicant (also represented by Counsel) in the matter did make submissions as to remedy throughout proceedings and indeed the Commission directed the parties a make further submissions as to remedy. The Direction to file material in relation to remedy did not refer to s.393 of the Act, in relation to Orders regarding instalments, but if a party considered that that was a relevant consideration the appropriate course of action would have been to either clarify with the Commission or seek leave to file material in that application. To wait until after the Order has been issued is unacceptable and is contrary to the ordinary, procedurally fair course.

[28] The Respondent had the opportunity to make appropriate submissions at the time of the substantive hearing and at the time of filing its original submissions and material and in response to filing material following the further Directions. The current application does not allege that circumstances have changed at all since the making of the Order such as to warrant a reconsideration of the Order. Indeed the Respondent has not specified any grounds beyond that discussed above which merely indentifies that the Commission may frame any Order in terms of instalment payments. The Respondent is bound by the conduct of their case in the first instance and additionally where expressly provided with the opportunity to provide submissions on remedy.

[29] The comments of the Full Court of the Federal Court recently in McCraken v Phoenix Constructions (Queensland) Pty Ltd 6:

“The time...to make the applications, which it now has made, was at the hearing of the appeal. The practice of this Court has been for some time that if a party seeks an order for costs, other than that the costs should follow the event, that party should make that application and should provide the party’s submissions in support of that application at the time of the hearing of the appeal.”

[30] While the statement of the Court in that matter is not directly referable to the circumstances now present or indeed binding upon this Commission, it does bear a common sense and practical approach to the task of any decision maker and the onus of the parties appearing before it. The time for making the submissions now sought to be made, particularly as the main submission of the Respondent appears to be that the effect of the Order of the viability of the business is a matter which favours the granting of the variation, was at the time of Hearing and subsequently in response to the further Directions. The fact that the Respondent chose not to make those submissions at that time and in relation to the viability issue, not to file any evidence in support of their contention, is a matter that they are bound by.

[31] Further the evidence filed in support of the application to amend is not convincing. The Respondent has filed an “income statement for year end June 2012”. There is no attempt to explain why this material was not filed in response to the further Directions prior to the issuing of the Order. And further the evidence is of little weight as to the financial position of the Respondent now, as the statement refers to a period of time more than 18 months prior to now.

[32] Even if the Commission in this matter was minded to reconsider the Order on the application of the Respondent, the evidentiary basis upon which the Respondent seeks to have the Order amended is not persuasive.

[33] The Commission will not grant the amendment sought.

[34] The application filed on 20 August 2013 pursuant to s.603(2)(b)(i) of the Act is dismissed.

[35] I Order accordingly.

COMMISSIONER

 1   Refer to Lambert v Jetscape Travel Pty Ltd [2013] FWC 2263, Lambert v Jetscape Travel Pty Ltd (No.2) [2013] FWC 4355 and Order PR538528.

 2   Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet [2013] FWC 2263 issued 21 June 2013 and Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet [2013] FWC 4355 issued 25 July 2013.

 3   Affidavit of Leonard Gavin Padowitz at 2.

 4  Munro J, unreported, 9 April 2003, PR929970.

 5 Ibid at [36].

 6 [2013] FCA FC 87 at [13].

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