S. Kerr v Hoyhaul Pty Ltd
[2013] FWCFB 8026
•22 NOVEMBER 2013
[2013] FWCFB 8026 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Hoyhaul Pty Ltd
(C2013/5866)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 22 NOVEMBER 2013 |
Appeal against decision [PR539725] of Commissioner McKenna at Sydney on 2 August 2013 in matter number U2012/15531- Application to extend time to lodge appeal - application -extension of time granted - permission to appeal - appeal upheld - rehearing - application dismissed.
[1] On 19 December 2012, Mr Kerr (the appellant) filed an application for an unfair dismissal remedy, pursuant to s.394 of the Fair Work Act 2009 (the Act). On 2 August 2013 Commissioner McKenna issued an order dismissing Mr Kerr’s application, pursuant to s.399A(1)(c) of the Act (Print PR539725).
[2] On 3 September 2013 Mr Kerr lodged a notice of appeal in respect of the decision to dismiss his application. Rule 12 of the Fair Work Australia Rules 2010 deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision appealed against.
[3] Mr Kerr’s appeal was filed 11 days outside the time prescribed in Rule 12. Rule 12.3(b) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.
[4] Time limits of the kind in Rule 12 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities 1 indicate that the following matters are relevant to the exercise of the Commission’s discretion under Rule 12.3(b):
- whether there is a satisfactory reason for the delay;
- the length of the delay;
- the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
- any prejudice to the respondent if time were extended.
[5] In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.
[6] In this case the extent of the delay is relatively short, 11 days, and the respondent does not contend that it would be prejudiced by the grant of an extension of time. For the reasons which follow we have concluded that the Commissioner did not have jurisdiction to dismiss Mr Kerr’s application pursuant to s.399A. We are satisfied that the interests of justice favour an extension of the time within which to lodge the appeal. We now turn to deal with the appeal.
[7] An appeal under s.604 of the Act is an appeal by way of rehearing and the Tribunal’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal, rather an appeal may only be made with the permission of the tribunal.
[8] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the Act. Section 400 (1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3.2 unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally (compare s 604(2) and s 400).
[9] Before turning to the grounds advanced in support of Mr Kerr’s appeal we propose to deal with the relevant facts and the Commissioner’s decision.
[10] Mr Kerr’s application was listed for a jurisdictional hearing on 7 May 2013, before Commissioner McKenna, to determine whether Mr Kerr had resigned his employment or whether he had been dismissed. At the commencement of the proceedings on 7 May 2013 the Commissioner invited the parties to hold some discussions in an attempt to settle the substantive application. The settlement discussions were successful and the Commissioner confirmed the details of the settlement on the record:
“COMMISSIONER: The parties have been in some short discussions and I've had some brief off-record discussions with them. I'm informed that the parties have agreed to settle this matter on an agreed amount of $2,500 to be paid in the next pay cycle. I understand that this will be a full and final settlement of all claims of the applicant against the respondent, with the exception of any workers' compensation or superannuation-related claims that he may have. As is usual the settlement is made without any admissions of liability by either party. Mr Kerr, can I confirm, does that accurately reflect the agreement that's been reached between the parties?
MR KERR: Yes.
COMMISSIONER: Good, thank you. Similarly, Mr Hoye, can I confirm that that accurately reflects the agreement made between the parties?
MR HOYE: That nominal amount will be with tax withheld?
COMMISSIONER: Settlement amounts need to be taxed according to law and you should make your own inquiries with the Australian Taxation Office about the appropriate level of taxation.
MR HOYE: Thank you.
COMMISSIONER: Can I say this? If, Mr Kerr, you disagree with the taxation treatment of the amount, that's a matter to be raised with the tax office and not with the Fair Work Commission.
MR KERR: Okay.” 3
[11] We note that the Commissioner subsequently clarified that the settlement was in fact for $3,500 (not $2500 as stated in the transcript) less appropriate tax. 4 There was a dispute as to the payment of the agreed amount and the matter was relisted before Commissioner McKenna on 3 June 2013. During the proceedings on that day the respondent agreed to forward a cheque to Mr Kerr for the agreed amount, by registered post. Mr Kerr supplied his residential address for that purpose. The Commissioner informed Mr Kerr that once he had received the payment he was to send a notice of discontinuance to the Commissioner’s Associate.5
[12] As no notice of discontinuance had been received, despite a reminder letter being sent to the parties on 11 July, the matter was again listed for a further hearing before Commissioner McKenna on 2 August 2013.
[13] During the proceedings on 2 August 2013 Mr Hoye, for the respondent, submitted that the settlement amount had been paid into Mr Kerr’s account. Mr Kerr’s account details were said to have been provided to the respondent by Mr Kerr’s current employer. After providing the parties with an opportunity to make submissions the Commissioner dismissed Mr Kerr’s application. The relevant parts of the transcript are set out below:
“COMMISSIONER: Now, I propose Mr Hoye, you have provided financial information. You have submitted to me that the account to which you have made the payment is the same as the account that you have been informed by another employer is the account into which wages are paid. I haven’t received a notice of discontinuance from Mr Kerr. Mr Kerr informs me he has been too busy to make inquiries notwithstanding the correspondence forwarded to him on 11 July. I have power to dismiss an application in circumstances where a settlement agreement has been made but a notice of discontinuance has not been received but I would need you to ask me, Mr Hoye, to dismiss the application on that basis. Do you make that request?
MR HOYE: Yes, I do, Commissioner, you can dismiss the application, thank you.
COMMISSIONER: Mr Kerr, do you have anything to say in relation to that?
MR KERR: yes, I’ll be taking it up with my current employer as to why he’s giving out any information to a second party.
COMMISSIONER: do you have anything to say in relation to Mr Hoye’s application that I should dismiss this matter in circumstances ...
MR KERR: No.
COMMISSIONER: ---Mr Hoye has provided the commission information having a tendency to confirm that payment has been made in circumstances where you have not made further inquiries, notwithstanding the correspondence forwarded to you and in circumstances where my correspondence or the correspondence sent to you on my instructions on 11 July concerning the notice of discontinuance that you haven’t filed, that notice of discontinuance? Is there anything that you want to say as to why I ought not dismiss the application in those circumstances?
MR KERR: No.
COMMISSIONER: No, all right, well, in those circumstances, having considered the background to this matter I now accede to Mr Hoye’s application that this matter should be dismissed pursuant to section 399A on the basis that a settlement has been effected but a notice of discontinuance has not been filed. The proceedings are thereby concluded. Thank you and off record.”6
[14] On 2 August 2013 the Commissioner issued an order dismissing Mr Kerr’s application, pursuant to s.399A(1)(c) of the Act (Print PR539725). Section 399A of the Act is in the following terms:
399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.
[15] Section 399A was introduced into the Act by the Fair Work Amendment Act 201 (Cth) (the 2012 Amendment Act). Item 1 of Schedule 11 inserts a new Schedule 3 into the Act. Item 11 of Schedule 3 provides that the power to dismiss an unfair dismissal application in s.399A applies in relation to dismissals that take effect after the commencement of Part 2 of Schedule 6 of the Amendment Act. Part 2 of Schedule 6 commenced on 1 January 2013. The effect of all of this is that the Commission’s power to dismiss an application pursuant to s.399A only applies to dismissal which takes effect after 1 January 2013. Mr Kerr’s application for an unfair dismissal remedy alleges that his dismissal took effect on 15 December 2012. It follows that the Commissioner had no jurisdiction to dismiss Mr Kerr’s application pursuant to s.399A of the Act.
[16] Given that the Commissioner has no jurisdiction to make an order pursuant to s.399A we have concluded that it is in the public interest to grant permission to appeal, uphold the appeal and quash the Commissioner’s order. But that is not the end of the matter. Section 607(3) of the Act provides that in determining the appeal: the commission may do any of the following in relation to the appeal :
(a) confirm, quash or vary the decision;
(b) make a further decision in relation to the matter that is the subject of the appeal or review;
(c) refer the matter that is the subject of the appeal or review to an FWC Member (other than an Expert Panel Member) and:
(i) require the FWC Member to deal with the subject matter of the decision; or
(ii) require the FWC Member to act in accordance with the directions of the FWC.
[17] During the hearing of the appeal we informed the parties that if we upheld the appeal we would conduct a re-hearing of the matter and make a further decision in relation to the matter which is the subject of the appeal. 7 In particular we would decide whether or not we would make an order dismissing the application. The parties were provided with an opportunity to make submissions in relation to what order, if any, we should make.
[18] Section 587 of the Act provides that an application may be dismissed if it has “no reasonable prospects of success”.
[19] In the appeal proceedings it was common ground that the parties had entered into a settlement agreement in relation to Mr Kerr’s unfair dismissal application. It was also common ground that the respondent had transferred the settlement sum into Mr Kerr’s bank account.
[20] In these circumstances we are satisfied that the application has no reasonable prospects of success. The parties have concluded an agreement to settle Mr Kerr’s unfair dismissal application and the respondent has paid the agreed sum to Mr Kerr. The agreement between the parties in respect of the appellant’s claim is an appropriate basis for dismissing that claim pursuant to s.587 of the Act. As Besanko J observed in Australian Postal Corporation v Gorman
“...a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.” 8
[21] We grant leave to extend the time for lodging the appeal. Permission to appeal is granted, the appeal upheld and the order subject to appeal is quashed. In rehearing the matter we have decided to make a further decision in respect of the matter that is the subject of the appeal pursuant to s.607(3)(b). We have decided to dismiss Mr Kerr’s unfair dismissal application pursuant to s.587 of the Act.
PRESIDENT
Appearances:
S.Kerr on his own behalf
D. Hoye for Hoyhaul Pty LtdHearing details:
2013;
Sydney;
November, 20
1 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eaves C; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338
2 This is so because on appeal FWA has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
3 Transcript 7 May 2013 at paragraphs 11-18
4 Transcript 3 June 2013 at paragraphs 30-32.
5 Transcript 3 June 2013 at paragraphs 65-71.
6 Transcript 2 August 2013 at paragraphs 92-100.
7 s.607(3)(b)
8 [2011] FCA 975 at paragraph 33; Also see Coleman v Logic Australia Pty Ltd [2012] FWAFB 9876
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