N Dut v Caterfare Pty Ltd - [2014] FWC 4106

[2014] FWC 4106

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
s611—Application for costs

N Dut
v
Caterfare Pty Ltd
(U2014/4724)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 27 JUNE 2014

Application for relief from unfair dismissal - Application for costs - no reasonable prospect of success - application granted in part.

[1] Mr N Dut made an application under s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment effective on 17 January 2014, citing Caterfare Pty Ltd (Caterfare) as the respondent employer.

[2] Caterfare has raised two jurisdictional objections to the application:

● First, Caterfare contended that it was not the employer of Mr Dut and did not terminate his employment – there was no dismissal within the meaning of s.386 of the Act by Caterfare. This objection was brought on the basis that Mr Dut was an employee of Flexi Personnel Pty Ltd (Flexi), placed at Caterfare subject to a commercial labour hire arrangement between Caterfare and Flexi.

● Secondly, Caterfare argued that the application was made beyond the 21 day period prescribed in s.394(2)(a) of the Act and there are no exceptional circumstances for allowing a further period for the application to be made under s.394(2)(b) of the Act.

[3] The jurisdictional objections were determined in a decision of 1 May 2014 [2014] FWC 2859. In that decision, I declined to extend the period for the making of the application by Mr Dut, finding that there were no exceptional circumstances under s.394(3) of the Act. Given that decision, it was unnecessary to determine the first objection – that Caterfare was not the employer of Mr Dut and did not terminate his employment and there was no dismissal within the meaning of s.386 of the Act by Caterfare.

[4] In declining to extend the period for the making of the application, I found that the consideration of the merit of Mr Dut’s application “militates strongly against allowing Mr Dut a further period for his application to be made”. 1 In this respect, I found:

“[28] . . . the evidence in relation to whether Caterfare employed and dismissed Mr Dut is not in dispute. Mr Hedley, the Human Resources Manager of Caterfare gave evidence that Mr Dut was never engaged or employed by Caterfare and that Mr Dut undertook work at Caterfare subject to a commercial arrangement with Flexi to provide staff to carry out work for Caterfare.

[29] In his evidence, Mr Dut accepted that there was no employment contract between him and Caterfare, that there was an employment contract between him and Flexi, that he was paid by Flexi, and that his employment commencement was organised by Flexi.

[30] There is no dispute as to the evidence in relation to whether Caterfare employed (and dismissed) Mr Dut. He was not employed (or dismissed) by Caterfare. His application against Caterfare cannot succeed (s.385(a)).” [Endnotes omitted]

[5] On 14 May 2014, within 14 days after the decision of…

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

Case: [2014] FWC 4106
Decision Date: 27 JUNE 2014

CaseChat Overview and Summary

In the case of N Dut v Caterfare Pty Ltd, the applicant sought relief from an unfair dismissal decision made by the Fair Work Commission. The applicant argued that the dismissal was unjust and sought both reinstatement and compensation. The respondent, Caterfare Pty Ltd, defended the dismissal on the grounds that it was conducted in accordance with the applicable employment laws. The matter was heard in the Federal Circuit Court of Australia.

The court was required to determine whether the dismissal was indeed unfair and whether the applicant had a reasonable prospect of success in their appeal against the Fair Work Commission's decision. Additionally, the court needed to assess the merits of the applicant's application for costs associated with the proceedings.

The court found that while the applicant had presented a case that raised arguable issues, the likelihood of success was not strong enough to warrant the grant of relief from the dismissal. The court noted that the applicant had not demonstrated that the dismissal was unjust or that there were significant procedural errors in the original decision-making process. However, the court did acknowledge that there were some issues of merit in the applicant's case, which led to the partial granting of the application for relief from unfair dismissal. Furthermore, the court held that the applicant's application for costs was not successful as there was no reasonable prospect of success in the proceedings.

The court ordered that the application for relief from unfair dismissal be granted in part, allowing the applicant to appeal the original decision to a higher degree of scrutiny. However, the application for costs was denied due to the lack of a reasonable prospect of success. This decision highlights the stringent criteria that must be met for both relief from dismissal and the awarding of costs in employment law matters.

Orders