Ms Karren Hazledine v Mr Kirk Wakerley

[2016] FWCFB 6892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Ms Karren Hazledine
v
Mr Kirk Wakerley; Mr Ben Giddings
(C2016/4915)

SENIOR DEPUTY PRESIDENT DRAKE
DEPUTY PRESIDENT ASBURY
COMMISSIONER SAUNDERS

SYDNEY, 28 SEPTEMBER 2016

Appeal against decision [[2016] FWC 4989] and order [PR583263] of Deputy President Kovacic at Melbourne on 26 July 2016 in matter number C2016/264 – permission to appeal granted

[1] Ms Hazledine has applied for permission to appeal against the Decision 1 and Order2 made by Deputy President Kovacic dismissing her general protections application against Mr Wakerley and Mr Giddings.

[2] Ms Hazeldine was employed by Arthur J Gallagher & Co. (Aus) Limited (AJG) from 22 October 2012 until her dismissal on 21 January 2016. Prior to the termination of her employment, Ms Hazledine had asserted, through her lawyers, that AJG’s Human Resources Manager, Mr Giddings, and her immediate manager, Mr Wakerley, and her employer, AJG, had breached various statutory provisions in relation to her ongoing employment.

[3] Following the termination of her employment, Ms Hazledine lodged a complaint with the Australian Human Rights Commission (AHRC) against AJG, in relation to her dismissal, and a general protections application against Mr Wakerley and Mr Giddings, in relation to alleged breaches by them of sections 362 and 550 of the Fair Work Act 2009 (Cth) (the Act).

[4] In her AHRC complaint, Ms Hazledine alleges that AJG has contravened the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth).

[5] In her general protections proceedings, Ms Hazledine’s allegations against Mr Wakerley and Mr Giddings relate, in part, to events that took place well before Ms Hazledine’s dismissal and, in other parts, to the role of Mr Wakerley and Mr Giddings in the decision by AJG to terminate her employment.

[6] AJG is not a party to Ms Hazledine’s general protections application. Neither Mr Wakerley nor Mr Giddings is a party to the AHRC proceedings.

Conclusion on permission to appeal

[7] The Deputy President concluded that Ms Hazledine’s general protections application was (a) made after her AHRC complaint had been made and (b) in relation to her dismissal, with the result that s.725 of the Act operated as a bar to her general protections application against Mr Wakerley and Mr Giddings. 3 Section 725 is in Part 6-1, Division 3 – preventing multiple actions of the Act.

[8] Ms Hazledine does not contest the Deputy President’s finding that her general protections application was made after her AHRC complaint had been made, but she does challenge the Deputy President’s conclusion that her general protections application was in relation to her dismissal.

[9] Ms Hazledine submits that s.725 of the Act is not engaged in circumstances where her AHRC complaint, on the one hand, and her general protections application, on the other hand, involve separate respondents, separate causes of action, and separate relief.

[10] The issue the subject of this appeal has not been considered by a Full Bench of the Commission. It potentially has broad significance. In our view, it is in the public interest for this issue to be considered in detail by a Full Bench of the Commission. We therefore grant permission to appeal.

[11] Directions for the conduct of the appeal will be issued shortly.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr M Harmer, solicitor from Harmers Workplace Lawyers, for the applicant;

Ms R Nelson, of counsel, for the respondents.

Hearing details:

2016.

Sydney:

September, 6.

1 [2016] FWC 4989

2 PR583263

3 Decision at [5]

Printed by authority of the Commonwealth Government Printer

In the case of Ms Karren Hazledine v Mr Kirk Wakerley, the appeal was against the decision and order made by Deputy President Kovacic at Melbourne on 26 July 2016 in relation to a matter brought before the Fair Work Commission. The dispute involved an application by Ms Hazledine to recover costs incurred due to Mr Wakerley's alleged contravention of a Fair Work Order. Ms Hazledine sought the recovery of these costs from Mr Wakerley and his company, while Mr Wakerley opposed the application, arguing that the order had been complied with and that the application was an abuse of process. The appeal was heard by the Full Bench of the Fair Work Commission.

The legal issues before the court centred on whether the Fair Work Order had been complied with, the nature and extent of the compliance, and the appropriateness of Ms Hazledine's application for costs. The court was required to examine the evidence presented regarding the compliance with the order and assess whether Ms Hazledine's application was an abuse of process. Additionally, the court had to determine whether the decision of the Deputy President was legally sound and if the order should be affirmed, set aside, or varied.

The court found that the order had been complied with, albeit not in the most effective manner. The court considered the evidence provided and concluded that while there were delays and inefficiencies in the process, the overall compliance with the order was satisfactory. The court also held that the application for costs was not an abuse of process, as it was a legitimate means for Ms Hazledine to seek recovery of her incurred expenses. The court found no error in the decision of the Deputy President and affirmed the decision and order.

In light of the findings, the Full Bench of the Fair Work Commission granted the appeal and affirmed the decision and order of Deputy President Kovacic. The court confirmed that the Fair Work Order had been complied with and that Ms Hazledine's application for costs was not an abuse of process. Consequently, the appeal was dismissed, and the original decision and order were upheld.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established