Stan v Frontline Australasia - [2014] FWC 5457

[2014] FWC 5457

The attached document replaces the document previously issued with the above code on 13 August 2014.

In the last sentence of paragraph [4], the reference to s. 587 is amended to s. 586.

Abby Lang

Associate to Deputy President Gostencnik.

Dated 14 August 2014

[2014] FWC 5457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gheorghe Stan
v
Frontline Australasia
(U2014/5712)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 AUGUST 2014

Application for relief from unfair dismissal; applicant deceased prior to determination of application; whether application for unfair dismissal remedy made under s. 394 survives death of applicant and may be continued to an estate; no reasonable prospect of success; application dismissed

Introduction

[1] Stan Gheorghe (Applicant) commenced employment with Frontline Australasia Pty Ltd (Respondent) on 7 November 1988. Prior to the commencement of his employment with the Respondent, the Applicant was employed as a machine operator in the Respondent’s automotive division. On or about 25 February 2014 the Applicant signed what appears to be a letter of resignation from his employment. On 18 March 2014 the Applicant lodged an application for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (Act). The Respondent raised an objection to the application on the ground that the Applicant had not been dismissed within the meaning of s. 386 of the Act.

[2] On 27 May 2014, before any of the issues that required determination by the Commission were considered, the solicitors acting for the Applicant advised that the Applicant had passed away. At that stage the Applicant’s solicitors asserted that Ms Rodica Posogeanu was the Applicant’s next of kin and wished in that capacity to continue with the application. The Applicant appears to have died intestate. It also appears that State Trustees are involved in obtaining a grant of probate or administration.

[3] State Trustees has not sought any order seeking to continue this application. Ms Posogeanu has been given a number of opportunities to provide to the Commission evidence of her status as next of kin or evidence otherwise of her capacity and legal authority to purport to continue with the application made by the Applicant. No evidence of any legal authority has been provided. Ms Posogeanu now accepts that she is not the Applicant’s next of kin and her status is only that of a long-term friend of the Applicant. Ms Posogeanu does not have any standing to appear in the application or to seek permission to continue the application in her own name or on behalf of the deceased Applicant’s estate.

Consideration

[4] The rules of the Federal Court of Australia contemplate the capacity to continue proceedings in Fair Work Act 2009 applications in the event of death if the interest in the proceedings or the liability of a party in the proceedings passes to another person during a proceeding, by assignment, transmission, devolution or by any other means 1. There is no similar rule to be found in the Fair Work Commission…

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: [2014] FWC 5457
Decision Date: 12 AUGUST 2014

CaseChat Overview and Summary

The matter involved an application for relief from an unfair dismissal made by Stan against Frontline Australasia. Stan was dismissed from his employment and subsequently passed away before the application was determined. The dispute centred on whether the application for unfair dismissal remedy made under section 394 of the Fair Work Act survived the death of Stan and could be continued by his estate. The case was heard in the Fair Work Commission, which has jurisdiction to hear such matters.

The primary legal issue before the Commission was whether the application for unfair dismissal could be maintained by the estate of the deceased applicant. The Commission needed to determine if the right to seek unfair dismissal remedies was personal to the applicant or if it could be inherited by the estate. Additionally, the Commission had to consider whether there was a reasonable prospect of success for the application if it were to proceed.

In its decision, the Commission held that the application for unfair dismissal remedy was personal to the applicant and did not survive the applicant's death. Consequently, the application could not be maintained by the estate. The Commission further found that there was no reasonable prospect of success for the application. Given these findings, the application was dismissed. The Commission did not consider it necessary to delve into the merits of the application since the legal issue of survival of the application precluded any further consideration.

Orders