Mr Kevin Coleman v Logic Australia Pty Ltd T/A Comcork Manufacturing Pty Ltd
[2012] FWA 8433
•4 OCTOBER 2012
Note: An appeal pursuant to s.604 (C2012/5740) was lodged against this decision - refer to Full Bench decision dated 22 November 2012 [[2012] FWAFB 9876] for result of appeal.
[2012] FWA 8433 |
|
DECISION |
Fair Work Act 2009
s.587 - Dismissing applications
Mr Kevin Coleman
v
Logic Australia Pty Ltd T/A Comcork Manufacturing Pty Ltd
(U2011/14841)
COMMISSIONER LEWIN | MELBOURNE, 4 OCTOBER 2012 |
[1] This decision concerns an application by Logic Australia Pty Ltd, trading as Comcork Manufacturing Pty Ltd (Logic) to dismiss an application by Kevin Coleman under s.394 of the Fair Work Act 2009 (the Act) for relief in relation to the termination of his employment by Logic.
[2] On 7 September 2012 I issued a decision in this matter [[2012] FWA 7659]. I decided that, should Logic comply with certain directions, I would dismiss Mr Coleman’s application. In that decision the following directions were given:
‘Directions
[15] Fair Work Australia accordingly directs as follows:
1. Logic is to pay Mr Coleman the total amount of monies payable under the terms of settlement in Exhibit A in the matter plus 10.5% per annum interest on that amount, from 25 January 2012 to 12 September 2012 to Mr Coleman.
2. Logic is to pay the total amount in the form of a bank cheque.
3. Logic is to pay the total amount as required above by forwarding a bank cheque for the amount by registered post by the close of business 12 September 2012.
4. Logic is to provide to the Tribunal proof of the form of the payment prescribed hereby and the posting of the payment in the manner prescribed hereby by the close of business on Friday 14 September 2012.
5. Proof of compliance with these directions must include a photocopy of the bank cheque, a copy of the registered post receipt and a statutory declaration on behalf of Logic that the bank cheque was enclosed in the registered mail article so receipted.’ 1
[3] Proof of compliance was not received by the Tribunal by 14 September as directed in Item 4 of the directions.
[4] On 24 September 2012 a statutory declaration was received by Fair Work Australia signed by Mr Brian Parker, Managing Director of Logic. That statutory declaration stated that a bank cheque had been purchased for the amount directed by Fair Work Australia and that bank cheque was mailed to Mr Coleman at what was thought to be Mr Coleman’s address.
[5] A photocopy of the bank cheque and a copy of the registered post receipt as required by item 5 of the directions were not sent to the Tribunal with the statutory declaration.
[6] On 25 September 2012 Mr Parker forwarded a copy of the bank cheque, dated 12 September 2012, and a receipt for the purchase of a registered post envelope to the Tribunal by facsimile. Mr Parker did not provide the Tribunal with the receipt for the lodgement of a registered post mail item.
[7] On 27 September 2012 Mr Parker advised my Associate that the registered post containing the bank cheque had been returned to Logic as it had been mailed to the wrong address by clerical error. Mr Parker was asked to provide the Tribunal with proof of the error and to send the cheque to the correct address with the proof of compliance as directed in item 5 of the directions.
[8] On 27 September Mr Coleman presented to the Tribunal requesting to speak to my Associate and to provide further documentation in the matter. Mr Coleman seeks to have the matter heard on the merits in light of Mr Parker’s non-compliance with the directions of 7 September 2012.
[9] On 28 September 2012 my Associate wrote to Mr Parker directing Logic to file written submissions to show cause as to why Logic’s application to the Tribunal under s.587 of the Act, to dismiss Mr Coleman’s application, should not be dismissed.
[10] A letter dated 28 September 2012 was received by the Tribunal on 1 October 2012 which states that the bank cheque sent to Mr Coleman was sent to an incorrect street number. Accompanying that letter is a copy of a cheque dated 12 September 2012 for $3,308.40, a registered post envelope with the incorrect address stamped by the Huntingdale Post Office on 12 September 2012 and a registered post lodgement receipt for an item sent to the correct mailing address of Mr Coleman dated 27 September 2012.
[11] On 1 October 2012 Mr Parker filed in the Tribunal submissions outlining steps to comply with the directions of 7 September. Mr Parker submits that the directions were complied with, however, due to human error, the registered post envelope containing the bank cheque addressed to Mr Coleman was mailed to an incorrect street number.
[12] On 1 October 2012 Mr Coleman advised my Associate that he had received a registered mail item from Logic. Mr Coleman stated that he has no intention of opening the mail and plans to take steps to return the envelope to Logic as Mr Coleman does not wish to accept the bank cheque from Logic.
[13] In light of the submissions of Logic I am satisfied that Logic took steps to comply with the directions of 7 September 2012 and by administrative error the bank cheque was not delivered to Mr Coleman. Upon notification that attempts to send the cheque to Mr Coleman by registered post had failed Mr Parker immediately sought to rectify the mistake by sending it to the correct address. Further, Mr Coleman is now in receipt of the bank cheque.
[14] I remain satisfied that Mr Coleman and Logic reached accord and satisfaction during a conciliation conference of 25 January 2012. 2 The terms of settlement, now performed by Logic, constitute a complete answer to the cause of action under s.394 of the Act3 pursued by Mr Coleman, in the form of an application for relief in relation to the termination of his employment by Logic.
[15] Notwithstanding Mr Parker’s tardiness, lack of attention to detail and failure to perform the terms of settlement as agreed by Logic and Mr Coleman and the details of the directions of 7 September 2012, I am satisfied that Logic has now substantially complied with those directions, albeit beyond the time prescribed thereby, and performed the terms of settlement referred to in my decision of 7 September 2012. Further to my decision of 7 September 2012 4 the application of Mr Coleman made on 21 December 2011 in this matter is hereby dismissed. An order will issue.
COMMISSIONER
1 [2012] FWA 7659, PN [15].
2 Ibid, PN [11].
3 Australian Postal Corporation v Gorman [2011] FCA 975.
4 [2012] FWA 7659, PN [14].
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