Mrs Karen Debra StockervA.B.C. Developmental Learning Centre Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) T/A A.B.C. Learning Centre - [2011] FWA 2326

[2011] FWA 2326

FAIR WORK AUSTRALIA

INTERIM DECISION

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

Mrs Karen Debra Stocker
v
A.B.C. Developmental Learning Centre Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) T/A A.B.C. Learning Centre
(U2010/9165)

COMMISSIONER CLOGHAN

PERTH, 16 MAY 2011

Unfair dismissal.

[1] On 27 May 2010, Ms Karen Stocker (“the Applicant”) made application to Fair Work Australia alleging that she had been unfairly dismissed from her employment with A.B.C. Developmental Learning Centre Pty Ltd trading as A.B.C. Learning Centre (“the Employer”).

[2] Ms Stocker has made the application pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).

[3] The application was the subject of conciliation on 15 June 2010.

[4] At the conclusion of conciliation, it was understood that the parties had reached, “in principle” settlement of the matter. The settlement was subject to the exchange and signing of documentation reflecting the agreement.

[5] Ms Stocker signed a Form F50-Notice of Discontinuance on 15 June 2010 which was received in the Fair Work Australia (FWA) on 18 June 2010.

[6] Subsequently on 5 July 2010, Ms Stocker made application to set aside the Notice of Discontinuance filed with FWA on 18 June 2010.

[7] The application to set aside the Notice of Discontinuance was the subject of a hearing on 17 August 2010 before Senior Deputy President Acton. By Order of SDP Acton (PR500661), the Notice of Discontinuance was set aside.

[8] At the conclusion of the hearing on 17 August 2010, SDP Acton observed that the Employer’s representative was to file a Form F4 in respect to certain jurisdictional objections and that those matters would be dealt with by a FWA member who would be allocated the application for arbitration.

[9] The application was referred to me for arbitration.

[10] On 1 September 2010, the application was the subject of a conference. The conference discussed the various possibilities on how the application could progress to resolution. The conference concluded on the basis that the Employer’s representative would provide, on a “without prejudice” basis, for the Applicant’s consideration, a proposed settlement of the matter The proposed settlement was provided to the Applicant on 3 September 2010. The Applicant rejected the proposed settlement and indicated she wished to proceed to arbitration before the Tribunal.

[11] On 15 September 2010, I issued Directions to the parties stating, as I did at the conference on 1 September 2010, that “unless and until the jurisdictional objection is determined, the merit of Ms Stocker’s allegation of unfair dismissal would not be inquired into”¹.

[12] The Directions required the Employer to set out the jurisdictional objection and any documentary material upon which it relies, to support the objection. The Applicant was given 14 days to respond to the jurisdictional objection.

[13] At paragraph [15] of the Directions it states that “unless there is an objection by either party, I intend to determine the jurisdiction objection by way of written submission”.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mrs Karen Debra StockervA.B.C. Developmental Learning Centre Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) T/A A.B.C. Learning Centre [2011] FWA 2326
Case: [2011] FWA 2326
Decision Date: 16 MAY 2011

CaseChat Overview and Summary

In this case, Mrs Karen Debra Stocker filed an application with Fair Work Australia alleging that she was unfairly dismissed from her employment with A.B.C. Developmental Learning Centre Pty Ltd. The case was initially settled in principle but later withdrawn by the Applicant. The matter proceeded to arbitration before Commissioner Claughan. The Employer raised a jurisdictional objection, claiming that the Tribunal lacked the authority to hear the case as the company had been placed in voluntary liquidation and, as such, required leave of the Court to proceed. The Applicant opposed the jurisdictional objection.

The legal issues before the Tribunal were whether the Fair Work Act 2009 provisions relating to unfair dismissal applied in this case and whether the Corporations Act 2001 provisions, specifically s.500(2), required the Applicant to seek leave of the Court before proceeding with the unfair dismissal claim.

The Tribunal considered the provisions of the Fair Work Act 2009 and the Corporations Act 2001, as well as relevant case law. The Tribunal concluded that the provisions of s.500(2) of the Corporations Act applied in this case, and the Applicant was required to seek leave of the Court before the Tribunal could proceed with the unfair dismissal claim.

Accordingly, the Tribunal found that the Applicant must seek leave of the Court as defined in s.58AA of the Corporations Act before the Tribunal can continue with these proceedings. The Tribunal adjourned the proceedings until 22 June 2011 to enable the Applicant to seek leave of the Court. Should the Applicant not receive or establish that she is pursuing leave of the Court by 22 June 2011, the application would be dismissed.

Orders