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Selvachandran v Peteron Plastics Pty Ltd

Selvachandran v Peteron Plastics Pty Ltd

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Case Copied 26 July 1995 6 min read

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CATCHWORDS

INDUSTRIAL LAW - UNFAIR TERMINATION - JURISDICTION - accrued jurisdiction of the Industrial Relations Court - substratum of facts.

Industrial Relations Act 1988, ss170EA, 170ED, 170EE

Philip Morris Inc. v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Fencott v Muller (1983) 152 CLR 570
Stack v Coast Securities Pty Ltd (1983) 154 CLR 261
John Weeks Pty Ltd v Foodland Associated Ltd (1987) 74 ALR 247
Ardino v Count Financial Group Pty Ltd (1994) 1 IRCR 221

No. VI 2059 of 1995

JOHN SUTHERLAND v FABGLASS BATHROOM PRODUCTS PTY LTD

MARSHALL J

MELBOURNE

26 JULY 1995

IN THE INDUSTRIAL RELATIONS COURT )
) )

OF AUSTRALIA )

) No. VI 2059 of 1995

VICTORIA DISTRICT REGISTRY )

BETWEEN: JOHN SUTHERLAND

Applicant

AND: FABGLASS BATHROOM PRODUCTS PTY LTD

Respondent

JUDGE: Marshall J

PLACE: Melbourne

DATE: 26 July 1995

ORDER

THE COURT ORDERS THAT:

The respondent’s notice of motion filed 25 July 1995 is dismissed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT )
) )

OF AUSTRALIA )

) No. VI 2059 of 1995

VICTORIA DISTRICT REGISTRY )

BETWEEN: JOHN SUTHERLAND

Applicant

AND: FABGLASS BATHROOM PRODUCTS PTY LTD

Respondent

JUDGE: Marshall J

PLACE: Melbourne

DATE: 26 July 1995

REASONS FOR JUDGMENT

On 16 March 1995 the applicant filed in the Registry his application pursuant to s170EA Industrial Relations Act 1988 (“the Act”) for a remedy in respect of the termination of his employment by the respondent. The application disclosed that the applicant had been employed by the respondent as a “sales manager/sales representative”. The applicant alleged in the application that he had received a separation certificate from the respondent on 15 March 1995 and that such certificate was dated 10 March 1995.

The respondent filed in the Court on 10 May 1995 a notice of appearance dated 14 April 1995. On 10 May 1995 the matter was referred to the Australian Industrial Relations Commission (“the Commission”) for conciliation pursuant to s170ED of the Act. On 29 May 1995 Commissioner Eames certified that the matter was unable to be settled by conciliation in the Commission. On 4 July 1995 Judicial Registrar Ryan ordered by consent that the matter proceed to trial and fixed the matter for hearing on 2 and 3 August 1995.

On 21 July 1995 the respondent filed a notice of motion seeking leave to file a cross claim for relief in the accrued jurisdiction of the Court. The notice of motion was supported by an affidavit of Robert Barrington Scott, a solicitor, filed on 21 July 1995.

At the hearing of the notice of motion on 25 July 1995 Mr Bruce Shaw of counsel appeared for the applicant and Mr Brian Lacy of counsel appeared for the respondent. Mr Lacy filed in Court a replacement cross claim and notice of motion and a further affidavit of Mr Scott sworn 25 July 1995.

The issue raised…

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: [1995] IRCA 333
Decision Date: 26 Jul 1995

CaseChat Overview and Summary

In the matter of John Sutherland versus FABGLASS BATHROOM PRODUCTS PTY LTD, the applicant, John Sutherland, sought a remedy in respect of his termination of employment by the respondent, FABGLASS BATHROOM PRODUCTS PTY LTD. The applicant alleged that he had been unlawfully terminated and sought relief under section 170EA of the Industrial Relations Act 1988. The respondent filed a notice of motion seeking leave to file a cross claim for relief in the accrued jurisdiction of the Court. The cross claim sought damages in the sum of $11,161.60 and interest arising from an alleged debt owed by the applicant to the respondent. The debt was due to the respondent paying the applicant's wages in gross amount rather than net of taxation.

The court had to determine whether it should exercise its accrued jurisdiction by granting leave to the respondent to file a cross claim for relief. The cross claim would seek damages in the sum of $11,161.60 and interest arising from an alleged debt owed to the respondent by the applicant. The debt was alleged to have arisen as a result of the respondent paying to the applicant his wages in gross amount rather than net of taxation. The court examined the legal principles governing the exercise of the accrued jurisdiction of the Court and found that the cross claim did not come from the same sub-stratum of facts as the application under s170EA of the Act.

The court dismissed the notice of motion insofar as leave to file a cross claim in the accrued jurisdiction is concerned. The court found that the cross claim and the application under s170EA were not within the scope of one single controversy. The s170EA matter would be heard and determined by Judicial Registrar Ryan on the dates already allocated subject to any application made to him.

Orders