Mr Daniel Whipps v Australian Lesiure and Hospitality Group Pty Ltd T/A ALH Group Ltd

[2017] FWC 1477

[2017] FWC 1477

FAIR WORK COMMISSION

DECISION

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

Mr Daniel Whipps
v
Australian Lesiure and Hospitality Group Pty Ltd T/A ALH Group Ltd
(U2016/7996)

COMMISSIONER HUNT BRISBANE, 16 MARCH 2017

Application for relief from unfair dismissal – stay of proceedings

[1] Mr Daniel Whipps has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Australian Leisure and Hospitality Group Pty Ltd T/A ALH Group Ltd (ALH Group). Mr Whipps alleges the termination of his employment was harsh, unjust or unreasonable.

[2] ALH Group has filed a jurisdictional objection on the basis that Mr Whipps is not a person protected from unfair dismissal as he has not completed the minimum employment period with ALH Group for the combined purposes of ss. 382(a) and 383 of the Act, that being a period of six months.

[3] The purpose of this decision is to consider whether a stay of these proceedings is appropriate in the circumstances.

Background

[4] Mr Whipps commenced employment with the ALH Group on 30 November 2015 and his employment was terminated on the employer’s initiative on 7 June 2016. Mr Whipps was in the employ of ALH Group for a total period of 6 months and 8 days.

[5] Mr Whipps was present at work between the period of 30 November 2015 and 19 February 2016. He was then absent on various forms of paid leave between the period 20 February 2016 and 6 March 2016. This is a period of 13 weeks and 4 days, a period contended by ALH as the only period which would count as service for the purposes of the minimum employment period of six months.

[6] Thereafter, between 7 March 2016 and 7 June 2016 Mr Whipps was not at work as he was on unpaid sick leave. Mr Whipps was absent during this period due to a medical condition for which he made a claim under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (Workers’ Compensation Claim).

[7] Mr Whipps’ Workers’ Compensation Claim was rejected by ALH Group’s self-insurer. Mr Whipps then sought a review of that decision to WorkCover Queensland (WorkCover). WorkCover confirmed the decision of the insurer to reject his claim on the basis that his medical condition was not a workplace injury.

[8] Mr Whipps filed an appeal of WorkCover’s decision to the Queensland Industrial Relations Commission (QIRC). The appeal was heard before Swan DP in Cairns in November 2016, with the decision reserved.

[9] Both parties filed submissions and evidence in relation to the jurisdictional objection. ALH Group requested the Commission to deal with its jurisdictional objection ‘on the papers’.

Minimum employment period issue

[10] Section 22 of the Act provides the meaning of service:

‘General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down underPart 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.’

[11] ALH Group urges the Commission to determine that Mr Whipps’ absence between 7 March 2016 and 7 June 2016 was a period of unpaid leave pursuant to s.22(2)(b), and therefore an excluded period pursuant to s.22 of the Act. Accordingly, his service with ALH Group would be only 13 weeks and 4 days, well short of the required period of six months.

[12] The authorities in relation to the minimum employment period and any excluded period pursuant to s.22 of the Act make clear that Mr Whipps’ periods of unpaid leave would not count as service for the purposes of the minimum employment period. 1 This is so because Mr Whipps’ Workers’ Compensation Claim was rejected by both ALH Group’s self-insurer and WorkCover. It has therefore been determined by firstly an insurer and then a regulatory body that his period of absence is currently labelled a period of unpaid leave.

[13] It follows that if ALH Group’s jurisdictional objection was determined at the present point in time, on the material before the Commission, the likely outcome is the Commission would find that Mr Whipps’ absence was an excluded period as it was a period of unpaid leave. It would flow that the Commission would need to dismiss Mr Whipps’ application.

[14] However, Mr Whipps’ currently has an application that has been heard by the QIRC to determine if the illness or injury suffered by him is a workplace injury or not. Should the QIRC determine that the injury or illness is a workplace injury, the period between 7 March 2016 and 7 June 2016 would no longer be categorised as a period of unpaid leave. It follows that it would be determined that Mr Whipps would then have served with ALH for a period of at least six months, and his application before this Commission would then be determined on its merit.

Both applicant and respondent oppose a stay of proceedings

[15] Mr Whipps does not dispute he was absent without pay from work between 7 March 2016 and 7 June 2016 due to medical reasons. Mr Whipps’ submissions and evidence in relation to the jurisdictional objection largely address issues pertaining to the merits of his application and other matters for which he feels aggrieved.

[16] It is discernible from his submissions however that Mr Whipps considers that despite his Workers’ Compensation Claim being rejected, the period of absence would still count as service for the purposes of the minimum employment period. Mr Whipps does not expound on this submission beyond contending that the ‘regulations’ provide as such.

[17] Further, Mr Whipps is of the view that his illness or injury is a workplace illness or injury, and it was unlawful of ALH Group to have dismissed him while he was suffering from an (alleged) workplace injury. In the various submissions made by Mr Whipps, he has demonstrated a significant level of frustration at the Commission. He has requested the Commission order his reinstatement and back-pay, among other various requests.

[18] Mr Whipps erroneously submitted that it was ALH Group who had requested a stay of the proceedings, and this was an example of ALH Group trying to ‘stall the justice process.’

[19] ALH Group also opposes a stay of the proceedings, on the basis that the Commission should determine the application relevant to the time the application was made. That is, at the time Mr Whipps made the application, his workers’ compensation claim had been rejected. Accordingly, the period 7 March 2016 to 7 June 2016 constituted a period of unpaid leave and an excluded period for the purposes of determining the period of service.

[20] ALH Group submitted that if the QIRC agrees that Mr Whipps’ illness or injury is personal, and not a workplace illness or injury, there is avenue for Mr Whipps to appeal the QIRC decision to the Queensland Industrial Court, which could see any stay order remaining in force for ‘several years’.

[21] Surprisingly, it is submitted by ALH Group:

‘The rights of the Applicant are not compromised by having the Commission deal with this threshold jurisdictional issue at this point.’ 2

Is it appropriate to stay the proceedings?

[22] If the QIRC finds in favour of Mr Whipps, the minimum employment period would be met with a total period of service of 6 months and 1 week, and Mr Whipps’ application before this Commission will proceed.

[23] If the QIRC finds against Mr Whipps, it is open to him to appeal the decision to the Queensland Industrial Court. There is no information before the Commission as to the likelihood of that course of action.

[24] If the jurisdictional issue before this Commission is determined without regard to Mr Whipps’ matter presently before the QIRC, the application in this Commission would, pursuant to [13], in all likelihood be promptly dismissed.

[25] Section 589 of the Act provides the Commission with the power to make decisions “as to how, when and where a matter is to be dealt with”. In my view, this provides the Commission with discretion to consider whether a stay of the proceedings is appropriate, having regard to the particular facts and circumstances.

[26] In Bowker v DP World Melbourne Limited 3, Gostencnik DP considered whether a stay of proceedings pursuant to s.589 of the Act was appropriate where related Federal Court proceedings were on foot. The Deputy President stated:4

‘In considering whether to exercise the discretion to make a decision with the effect that the applications would not be dealt with until after judgement is delivered in the Federal Court proceeding, it seems to me appropriate that I have regard to the relevant considerations that are taken into account by the courts in considering applications of this kind. Conveniently, in Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited 5, a case concerning an application to stay a proceeding because another proceeding involving related entities operating with a degree a common management and control, were involved in earlier commenced proceeding in New Zealand, Lockhart J set out a number of considerations his Honour said were relevant to the question whether a stay ought be granted:

“In my opinion relevant consideration is to be taken into account in the present case includes the following:

• Which proceeding was commenced first.



• Whether the termination of one proceeding is likely to have a material effect on the other.



• The public interest.



• The undesirability of two courts competing to see which of them determines common facts first.



• Consideration of circumstances relating to witnesses.



• Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.



• The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.



• How far advanced the proceedings are in each court.



• The law should strive against permitting multiplicity of proceedings in relation to similar issues.



• Generally balancing the advantages and disadvantages to each party”. 6

The approach in Sterling Pharmaceuticals has been adopted in a number of subsequent decisions 7 but it is to be noted that the list of considerations set out in Sterling Pharmaceuticals is not exhaustive and is not intended to be applied as a strictly prescriptive checklist of preconditions. Furthermore, considerations of case management are also relevant, as is the fact that decisions considering whether to grant a stay are often enmeshed in the facts and circumstances of the case the subject of decision and ultimately each case must be addressed having regard to its own circumstances.’ [endnotes omitted]

Conclusion

[27] In the present circumstances, I consider it is appropriate to stay the determination of Mr Whipps’ unfair dismissal application pending the outcome of the workers’ compensation appeal before the QIRC, for the reasons below.

[28] The outcome of the proceedings in the QIRC may have a material effect on the jurisdictional question before the Commission. If the Commission were to determine the jurisdictional objection prior to any finding of the QIRC, the result may be that a jurisdictionally competent application may be dismissed prematurely. This would be a substantial injustice to Mr Whipps that is contrary to the public interest.

[29] The QIRC has heard the appeal and the decision has been reserved. This factor weighs in favour of granting a stay, given that the proceedings in the QIRC are at a very advanced stage.

[30] The granting of a stay of these proceedings should not cause ALH Group to incur any additional legal expenses for the period of the stay.

[31] The granting of a stay in these proceedings does not automatically result in a further stay pending any subsequent appeal of the QIRC decision.

[32] In the event that it is incorrect to grant a stay of these proceedings, and it was held that Mr Whipps’ application should have been dealt with according to the stated position at the time the application was made – that is, the period 7 March 2016 and 7 June 2016 was a period of unpaid leave - I would consider it unnecessary to conduct a hearing in relation to the jurisdictional objection as there are no material facts in dispute about Mr Whipps’ length of service with ALH Group. In consideration of the authority in Workpac Pty Ltd v Bambach, I would, in all likelihood uphold ALH Group’s jurisdictional objection and dismiss Mr Whipps’ unfair dismissal application.

[33] Pursuant to s.589 of the Act, Mr Whipps’ unfair dismissal application is stayed pending outcome of his workers compensation appeal before the QIRC. Once the outcome of the appeal is known, the parties are directed to advise my Chambers of the outcome, provide a copy of the decision, and the matter will be listed for a further Mention.

COMMISSIONER

 1   See for example Workpac Pty Ltd v Bambach [2012] FWAFB 3206; Wales v 3 Point Motors Pty Ltd T/A 3 Point Motors[2012] FWA 3817;

 2 Further supplementary submissions of the respondent dated 27 February 2017 at [15].

 3   [2014] FWC 7326.

 4   Ibid at [5]-[6].

 5 (1992) 34 FCR 287.

 6   Ibid at 291.

 7   See for example Finance Sector Union of Australia v Commonwealth Bank of Australia [2004] FCA 187 and Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Oswal [2011] FCA 424

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