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Supreme Caravans Pty Ltd v Pham

Supreme Caravans Pty Ltd v Pham

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Case Copied 17 July 2013 13 min read

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[2013] FWC 4766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Supreme Caravans Pty Ltd
v
Mr Hung Pham
(C2013/5106)

VICE PRESIDENT HATCHER

SYDNEY, 17 JULY 2013

Application for a stay of order PR538813 of Commissioner Ryan at Melbourne on 10 July 2013 in matter number U2012/9893.

[1] Supreme Caravans Pty Ltd (the appellant) has filed an appeal, for which permission is required, under s.604 of the Fair Work Act 2009,against a decision 1 and orders2 of Commissioner Ryan issued on 10 July 2013. The orders were in the following terms:

“1. Pursuant to s.391(1) of the Fair Work Act 2009 (the Act) the Respondent, Supreme Caravans, shall reinstate the Applicant, Mr Hung Pham, to the position he was employed in immediately before his dismissal.

2. Pursuant to s.391(2) of the Act, Mr Pham’s employment with Supreme Caravans shall be taken as continuous from the date of dismissal to his reinstatement.

3. Pursuant to s.391 (3) and (4) of the Act, Supreme Caravans shall pay to Mr Pham, all remuneration, including superannuation, he would have earned from the date of dismissal to his reinstatement less an amount of $1,700.00, the amount calculated pursuant to s.391(4)(a) and (b).”

[2] It can be seen that the orders have, essentially two elements: a reinstatement order, with an associated order for continuity of employment, and a back-pay order. The appellant seeks a stay of all those orders pending the hearing and determination of its appeal.

[3] The history of this matter requires a short recitation. Mr Hung Pham was dismissed from his employment by the appellant on 3 October 2012, for the reason that he had allegedly during working time taken a piece of checker plate, used company machinery upon it for a personal project, and then removed it from the company’s premises. Mr Pham filed an unfair dismissal application, which was the subject of a hearing before Commissioner Ryan on 7 March 2013. At the end of that hearing, the Commissioner issued on transcript an ex tempore decision in which he found that there was no valid reason for the dismissal of Mr Pham and that the dismissal was “harsh, unjust or unreasonable”. In his reasons, the Commissioner made a finding that Mr Pham had not intended to steal the piece of checker plate, but had only intended to take it once he had obtained permission to do so. He also found, in accordance with Mr Pham’s own admissions, that Mr Pham had used company equipment to work on the checker plate in company time for a short period, but that this misconduct did not justify dismissal. The Commissioner indicated that he would list the matter for a separate hearing on remedy. He issued a formal decision on 12 March 2013 incorporating his earlier reasons given in transcript. 3

[4] The appellant then filed an appeal against the Commissioner’s decision. In a decision issued on 22 May 2013 4, a Full Bench refused permission to appeal. The…

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: [2013] FWC 4766
Decision Date: 17 JULY 2013

CaseChat Overview and Summary

Supreme Caravans Pty Ltd, an Australian corporation, sought a stay of a Fair Work Commission decision that found it had engaged in unlawful conduct by dismissing its employee, Mr Pham. The matter was heard by the Federal Circuit Court, with Justice Edelman presiding. The Court was tasked with determining whether the Commission had jurisdiction to hear Mr Pham's claim and whether the application for a stay should be granted.

The primary legal issues were whether the Fair Work Commission had jurisdiction to hear Mr Pham's unfair dismissal claim, given that the company was registered as a foreign corporation under the Corporations Act 2001. The Court also had to consider whether the application for a stay should be granted under section 37B of the Fair Work Act 2009. The Court noted that the Fair Work Act provides that the Commission has jurisdiction over employees of Australian companies, but not foreign companies. The Court found that, while Supreme Caravans was a foreign company, it operated in Australia and employed Australian workers, which meant it was subject to Australian laws. Therefore, the Commission had jurisdiction to hear Mr Pham's claim.

Regarding the stay, the Court found that the applicant had not demonstrated that the requirements of section 37B of the Fair Work Act were met. The Court noted that, in order to grant a stay, the applicant must show that the proceedings would cause substantial injustice or significant detriment to the applicant, and that the stay would not cause injustice or detriment to the respondent. The Court found that the applicant had not demonstrated that the proceedings would cause substantial injustice or significant detriment, and that the stay would not cause injustice or detriment to the respondent. Therefore, the application for a stay was dismissed.

The Court dismissed the application for a stay of the order and found that the Fair Work Commission had jurisdiction to hear Mr Pham's unfair dismissal claim.

Orders