Mr David Maynard v Inner West Towing Pty Ltd

[2017] FWC 1491

[2017] FWC 1491

FAIR WORK COMMISSION

DECISION

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

Mr David Maynard
v
Inner West Towing Pty Ltd
(U2016/2587)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 17 MARCH 2017

Application for relief from unfair dismissal.

[1] On 14 December 2015 I issued a Decision 1 pursuant to section 394 of the Fair Work Act 2009 (the Act) in which I found that Mr Maynard’s dismissal was unfair and that compensation was the appropriate remedy.

[2] After hearing further evidence regarding Mr Maynard’s financial circumstances on 11 January 2017, and considering written submissions, I issued a further Decision 2 on 25 January 2017 (Compensation Decision) in which I awarded compensation to Mr Maynard in the sum of $8980.08.

[3] On 26 January 2017, following the publication of the Compensation Decision the Australian Manufacturing Workers’ Union (AMWU) made an application for variation of that decision. I listed that application for variation for hearing on 15 February 2017.

[4] In its application the AMWU articulated the following grounds for the relief it sought:

“1. The Commission has power to make the order sought.

a. Section 602 of the FW Act replicates the ‘slip rule’ and empowers the Commission to correct ‘obvious errors’ in decisions of the Commission, and the order sought is directed at such obvious error; and

b. Alternatively, s. 603 of the FW Act empowers the Commission to vary or revoke a decision, there is no relevant limitation on this power in this matter, and it is appropriate in all the circumstances to make the order sought.

2. The order sought corrects an obvious error whereby Mr Maynard’s gross earnings at his new employment were treated as net of tax, and corresponding miscalculations.

a. Mr Maynard, in his statement of 6 September 2016, provided evidence that he had
commenced new employment on 2 August, earning $773.23 gross per week. This was
supported by annexure DM-11 to that statement, being a payslip confirming that he had earned $773.23 gross in the relevant period, and been paid $669.23 net of tax.

b. The Decision at [10] and [16] make it obvious that the Commission intended to refer to gross earnings, both in relation to likely lost income and amounts earned in alternative employment, in calculating the appropriate compensation amount. In this context, a characterization of a gross figure as net earnings is an obvious error.

3. It is appropriate to make the order under s. 602 as:

a. The error is ‘manifestly clear’ on the material available to the Commission (Currabubula v State Bank NSW [2002] NSWSC 232 (31 March 2000) at [51] (Currabubula));

b. The presence of the error has meant that the Decision does not reflect the intention of the Commission (i.e. to issue an order for compensation based on gross income
figures)(Currabubula at [38]);

c. The matter is not one of controversy – apart from the error at [44], the Respondent’s submissions repeatedly accept that the $773.23 figure is ‘before tax’ (see [33],[37]) - or a consequence of a deliberate decision (Elyard Corporation v DBB Needham Sydney (1995) 61 FCR 385 at [22]);

d. The Respondent’s submissions of 10 January 2017, apparently inadvertently, at [44] characterize the $773.23 figure as a net figure. It appears that the error may have flown from this mistaken submission;

e. The error has had a significant effect on the ultimate decision, and the order will have utility;

f. Making the order will avoid the cost and delay of further appeal proceedings, and is in keeping with the efficient exercise of the Commission’s functions; and

g. No discretionary factors weigh against making the order.”

Conclusion

[5] Pursuant to s.602 of the Act a Member of the Fair Work Commission may correct an obvious error, defect or regularity in relation to a decision.

Section 602 of theAct is set out below:

(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).

Note 2:The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.

(2) The FWC may correct or amend the error, defect or irregularity:

(a)  on its own initiative; or
(b)  on application.

[6] I am persuaded by the AMWU’s submissions that there is an error in the Compensation Decision.

[7] Having considered the submissions of the parties on the variations sought, and the evidence and submissions before me concerning compensation, I am satisfied that:

● my error is an obvious error;
● the issue concerning which I made the error was not controversial on the facts before me;
● the present Order does not reflect my intention and,
● the error is capable of correction by making the variation sought.

[8] I am satisfied that I should exercise my discretion pursuant to s.602 of the Act and vary my Order issued pursuant to the Compensation Decision.

[9] An Order to this effect will be published concurrent with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms L Saunders for the Applicant.

Mr C Tannous for the Respondent.

 1   [2016] FWC 8582

 2   [2017] FWC 569

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