DECISION

Fair Work Act 2009
s.365—General protections

Ryan Mount
v
Dover Castle Metals Pty Ltd; Matthew Haindl; George Tucker; Simon Tripp
(C2021/2383)

DEPUTY PRESIDENT EASTON

SYDNEY, 3 SEPTEMBER 2021

Application to deal with general protections contraventions involving dismissal – Stay application – whether the proceedings ought to be stayed pending the outcome of High Court decisions – whether the interests of justice are contrary to a grant of stay – application for stay refused.

Stay Application

[1] On 27 April 2021 Mr Ryan Mount applied to the Fair Work Commission (“the FWC”) under s.365 of the Fair Work Act 2009 (Cth) (“the FW Act”). Mr Mount claims that he was an employee of Dover Castle Metals Pty Ltd (“Dover”) and that he was dismissed by Dover in contravention of the General Protection provisions of the FW Act. Mr Mount also alleges Dover contravened the whistle-blower protection provisions of the Corporations Act 2001 (Cth) (Corporations Act). Mr Mount’s claim is against Dover and three personal respondents - Matthew Haindl, George Tucker and Simon Tripp - who are alleged to be accessories to Dover’s contraventions of the FW Act and of the Corporations Act.

[2] Generally the FWC’s role in relation to applications under s.365 of the FW Act is to deal with such applications by way of conciliation or mediation under s.368 of the FW Act. If the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 of the FW Act imposes a substantial restriction 1 upon applicants by preventing a general protections court application being made unless the FWC has issued a certificate under s.368(3)(a) in relation to the dispute.

[3] Mr Mount was engaged as the Chief Executive Officer of Dover for a period of approximately three weeks. The Respondents assert that Mr Mount was not an employee of Dover but was engaged as an independent contractor. The Respondents maintain that Mr Mount does not have legal capacity to properly make an application under s.365 because he was not an employee and therefore could not have been “dismissed” within the meaning of that section.

[4] To date there have been two days of evidence and a further day of closing submissions. On 5 August 2021, at the conclusion of submissions the third day, I reserved my decision.

[5] The Respondents have made an application that these proceedings be stayed until after the High Court delivers judgment in two pending matters. On 31 August 2021 the High Court heard an appeal from the decision of the Full Court of the Federal Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2020) 279 FCR 631, [2020] FCAFC 122 (“Personnel”). On 1 September 2021 the High Court heard an appeal from the Full Court’s decision in Jamsek v ZG…

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 Ryan Mount v Dover Castle Metals Pty Ltd

Details

AGLC: Ryan Mount v Dover Castle Metals Pty Ltd [2021] FWC 5515
Case: [2021] FWC 5515
Decision Date: 3 SEPTEMBER 2021

CaseChat Overview and Summary

The matter of Ryan Mount v Dover Castle Metals Pty Ltd arose in the Federal Circuit Court of Australia. Mount, the applicant, sought relief for alleged general protections contraventions, specifically involving his dismissal from employment. Dover Castle Metals Pty Ltd, the respondent, contested the claims. Mount applied for a stay of the proceedings to await the outcome of related High Court decisions that could impact the resolution of his case.

The primary legal issue before the court was whether the proceedings should be stayed pending the resolution of High Court matters. The court had to consider if a stay was appropriate in the interests of justice. Factors considered included the potential impact of the High Court decisions on the outcome of Mount's case, the timing of the High Court's decisions, and whether a stay would unduly delay the resolution of Mount's claims.

The court found that the interests of justice did not favour a stay of the proceedings. It determined that the High Court matters were not sufficiently related to warrant a delay in the resolution of Mount's claims. The court also noted that the potential delay in proceeding with the case was not significant enough to justify a stay. Consequently, the application for a stay was refused.

In conclusion, the court's decision denied the stay application, allowing the proceedings to continue. This decision ensured that Mount's claims could be addressed without further delay, while also taking into account the broader implications of the High Court matters.

Orders