Mrs Michelle McKerrow v Sarina Leagues Club Incorporated T/A Sarina Leagues Club

[2012] FWA 7369

[2012] FWA 7369

FAIR WORK AUSTRALIA

DECISION

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

Mrs Michelle McKerrow
v
Sarina Leagues Club Incorporated T/A Sarina Leagues Club
(U2010/14622)

COMMISSIONER ASBURY BRISBANE, 27 AUGUST 2012

Application for unfair dismissal remedy.

[1] On 7 August 2012 I issued a Decision 1 and Order2 in relation to the payment of compensation by Sarina Leagues Club Incorporated T/A Sarina Leagues Club (the Club) to Ms Michelle McKerrow, in respect of her unfair dismissal.

[2] In all of the proceedings before Fair Work Australia as currently constituted, in relation to the unfair dismissal application, Ms McKerrow was represented by Mr Smith and Mr Smart of SR Wallace & Wallace Lawyers and the Club was represented by Mr Porter of Clubs Queensland.

The Decision and Order was forwarded by email to Mr Smith and Mr Porter on 8 August 2012. On 22 August 2012, Mr Porter corresponded with my Associate in the following terms:

“I refer to this decision handed down on 8 August 2012.

This decision was addressed to Mr Smith with a c/c to me. It was not addressed to the club.

I have been away and only returned to work on 21 August 2012. Consequently the club has not been aware of this decision until today.

It is requested that the date for execution of the decision be extended by 21 days from 21 August 2012.

Eric Porter

Workplace Relations Manager

Clubs Queensland.”

[3] Mr Porter’s email has not been copied to Mr Smith and there is no indication that it has been sent to Mr Smith or Mr Smart. This is despite the fact that Mr Porter has been informed on a number of occasions throughout the hearing of this matter, that it is inappropriate to correspond with the Tribunal in relation to a particular case, without a copy of that correspondence being provided to the other party. The email has now been forwarded to Mr Smart by my Associate.

[4] On perusal of the file, it appears that the Club has not appointed Mr Porter as its Representative. The Employer’s Response to Application for Unfair Dismissal Remedy - Form F3 - filed by the Club 13 December 2010, does not indicate that the Club is represented. There is no Notice of Representative Commencing to Act - Form F53 appointing Mr Porter as the Club’s representative in these proceedings.

[5] However, Mr Porter has been treated as the representative of the Club given that he has appeared for the Club on some seven occasions in this case in various directions/conferences and hearings, and has been corresponding with Fair Work Australia on behalf of the Club since at least March 2011.

[6] It is incongruous that Mr Porter continues to correspond with the Tribunal, in the ostensible role as the representative of the Club, to seek an extension of the time in the Order for the payment of compensation, on the basis that the Tribunal should have been corresponding with the Club and not Mr Porter. Further, there is no explanation as to why another officer of Clubs Queensland could not have made the Club aware of the Decision and Order.

[7] Given the absence of clarity about Mr Porter’s status, and the lack of any correspondence from the Club about the matter, I am not prepared to grant an extension to the date by which the Club is required to comply with the Order, of the period sought by Mr Porter.

[8] The current terms of the Order require the Club to pay compensation to Ms McKerrow in the amount of $22,335.93, within 21 days of the date of the Decision. The Decision was released on 7 August 2012 and the date by which the compensation amount is required to be paid is 28 August 2012.

[9] An Order for compensation is a Decision for the purposes of s.603 of the Fair Work Act 2009. Pursuant to s.603(2) Fair Work Australia may, on its own initiative, vary or revoke a decision. In the circumstances, I intend to vary the Order to require the payment of the compensation amount to Ms McKerrow within 28 days of the date of the Decision. The effect of the variation will be that the date for compliance will be Tuesday 4 September 2012.

[10] In the absence of a Form F53 executed by the Club appointing a representative, all further communication in relation to this matter will be forwarded to directly to the Club and I will not accept further communication in relation to the matter from Mr Porter or Clubs Queensland.

COMMISSIONER

 1   [2012] FWA 6684

 2   PR527597

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<Price code A, PR528421>