Sibic v Salisbury

[2008] FMCA 715

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIBIC v SALISBURY & ANOR [2008] FMCA 715

INDUSTRIAL LAW – PRACTICE & PROCEDURE – Summary dismissal of proceedings – unlawful termination claim.

Workplace Relations Act 1996 (Cth) ss.650, 650(2), 659, 659(2)(a), 659(2)(e), 660, 663(5)
Federal Magistrates Court Rules 2001 (Cth) r.13.10

Matthews v Australian Postal Corporation [2007] FMCA 1174
Balding v Ten Talents Pty Ltd & Anor [2007] FMCA 145
Ettridge v Transadelaide [1998] FCA 275
Bahonko v Sterjov [2007] FCA 1244
Sperandio v Lynch [2006] FCA 1648

Applicant: MILES SIBIC

Respondent: TIMOTHY J & BRONWYN M SALISBURY T/AS AAA PACKAGING SUPPLIES

File number: MLG 413 of 2008

Judgment of: O’Sullivan FM

Hearing date: 23 May 2008

Date of last submission: 23 May 2008

Delivered at: Melbourne

Delivered on: 30 May 2008

REPRESENTATION

Counsel for the Applicant: Mr Gardner

Solicitors for the Applicant: Ryan Carlisle Thomas

Counsel for the Respondent: Mr Donaghey

Solicitors for the Respondent: Cornwall Stoddart

ORDERS

1. The respondent’s interim application filed 9 May 2008 be dismissed and the issue of the costs thereof be reserved.

2. The first name of the applicant and the title of these proceedings be amended to Milutin Sibic.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 413 of 2008

MILES SIBIC

Applicant

And

TIMOTHY J & BRONWYN M SALISBURY
T/AS AAA PACKAGING SUPPLIES

Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed 9 April 2008 Miles Sibic (“the applicant”) alleged his employment with Timothy J & Bronwyn M Salisbury t/as AAA Packaging Supplies (“the respondent) had been terminated in contravention of section 659 of the Workplace Relations Act 1996 (“the WR Act”).

2. By response filed 28 April 2008 the respondent denied the allegations contained in that application. The respondent’s position was the applicant was terminated due inter alia to his performance, conduct and alleged threats or acts of violence.  

3. The application was listed for directions on 2 May 2008 at which time orders were made to deal with an interim application sought by the respondent.

4. At the conclusion of the hearing the Court reserved its decision.
   For reasons set out below the interim application should be dismissed.

5. In the response filed 28 April 2008, which was accompanied by a notice of defence, the respondent denied it had terminated the applicant’s employment unlawfully. The respondent’s notice of defence also made plain its position that the applicant’s claim alleging a breach of section 659(2)(a) of the WR Act was not (on the respondent’s case) subject to conciliation in the Australian Industrial Relations Commission (“AIRC”) or set out in the notice of election.

6. Accordingly, the respondent’s position was that the application to the Court, in so far as it relied on section 659(2)(a), was beyond jurisdiction or incompetent.

7. Given this, and as set out above, whilst directions were made for the further conduct of the matter on 2 May 2008 there were also orders made to deal with the claim made by the respondent at an interim hearing.

8. The hearing of the respondent’s interim application occurred on

   
   23 May…