REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections (consent arbitration)

Rodney Baxter
v
Surfside Buslines Pty Ltd
(C2020/8527)

DEPUTY PRESIDENT ASBURY

BRISBANE, 8 JUNE 2021

s.365 - Application to deal with contraventions involving dismissal (consent arbitration) – Whether Commission has jurisdiction to arbitrate dispute involving dismissal under s. 365 which also involves a non-dismissal dispute – Failure to plead relevant adverse action – Finding that requires that alleged adverse action not pleaded in application not be considered – Applicant not dismissed for exercising workplace right – Application dismissed.

INTRODUCTION

[1] This Decision concerns an application by Mr Rodney Baxter (the Applicant or Mr Baxter) under s. 365 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission (the Commission) to deal with a dismissal dispute. The dispute relates to Mr Baxter’s employment with, and subsequent dismissal by, Surfside Buslines Pty Ltd (the Respondent or Surfside). The matter was not resolved by conciliation and the parties consented to the Commission determining the dispute by arbitration. On 31 May 2021, I issued an order dismissing the application and indicated that I would deliver reasons shortly thereafter. These are my reasons.

[2] Permission was granted under s. 596 of the FW Act for the Applicant to be represented by a lawyer, on the basis that I was satisfied that the application raised issues of complexity and that it would be unfair for the Applicant not to be represented, particularly in circumstances where the Applicant states that he has limited literacy skills. The Applicant was represented by Mr Geoff Baldwin, Special Counsel of Stacks Champion. Surfside was represented by Mr Paul Harris, Human Resources Manager for Queensland and New South Wales.

[3] Directions were issued to both parties requiring them to file and serve material for the arbitration including a requirement for any document to be relied on to be appended to a witness statement explaining the document. The Directions also made clear that witness statements were to include all evidence-in-chief and that leave would be required to adduce any additional evidence. The Applicant, through his representative, did not comply with the Directions and his material was filed outside the time required in the Directions. Further, the Applicant’s witness statement was a summary that did not set out his evidence-in-chief and documents available to the Applicant when he filed his statement were not appended to it. The Applicant sought to tender those documents and to give further oral evidence during the hearing. It also emerged during the hearing that the Applicant had recorded a meeting on a digital device without advising other participants and sought to tender a transcript of the recording.

[4] The necessity to deal with these matters as the hearing progressed, significantly delayed the hearing. The case advanced on behalf of the Applicant morphed to a significant extent from the case pleaded in the application. While there were some deficiencies in the material filed by the Respondent, these were mostly…

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.

Continue reading Rodney Baxter v Surfside Buslines Pty Ltd

Details

AGLC: Rodney Baxter v Surfside Buslines Pty Ltd [2021] FWC 3264
Case: [2021] FWC 3264
Decision Date: 8 JUNE 2021

CaseChat Overview and Summary

Rodney Baxter filed an application against Surfside Buslines Pty Ltd in the Fair Work Commission, alleging contraventions involving his dismissal under section 365. Baxter sought to have the dispute, which also involved a non-dismissal dispute, arbitrated. The company argued that the Commission lacked jurisdiction as the non-dismissal aspect was not pleaded in the application. The central issue for the court was whether the Commission had the authority to arbitrate a dismissal dispute under section 365 when the application also included a non-dismissal element. Another significant point was whether the Commission could consider an adverse action not specifically pleaded in the application.

The court determined that the Commission's jurisdiction to arbitrate dismissal disputes under section 365 was not extended to include non-dismissal disputes not explicitly pleaded in the application. The court held that any adverse action not pleaded could not be considered. Furthermore, the court found that Baxter was not dismissed for exercising a workplace right, which was another critical aspect of the case. Given these findings, the application was dismissed. The court's reasoning was grounded in the need for clear and specific pleadings in applications to the Commission, ensuring that only the issues explicitly raised could be addressed. The court concluded that the application failed to meet the necessary standards for arbitration.

Orders