Walker v Aztec Steel Pty Ltd

[2010] FMCA 68

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALKER v AZTEC STEEL PTY LTD [2010] FMCA 68

INDUSTRIAL LAW – Claim for unlawful termination for failure to give notice on termination of employment.

INDUSTRIAL LAW – Purported small claims procedure – matter under Workplace Relations Act 1996 (Cth) not Fair Work Act 2009 (Cth) – no small claims procedure jurisdiction.

PRACTICE & PROCEDURE – Incorrect small claims procedure form filed – procedural requirements waived.

Fair Work Act 2009 (Cth), ss.2, 548, 566, 567, 568
Federal Magistrates Act 1999 (Cth), ss.3(2), 42
Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 1.06, 9.04
Workplace Relations Act 1996 (Cth), ss.650, 651(6), 661, 665, 847

Singh v Official Trustee in Bankruptcy [2008] FMCA 521

Applicant: IAN CHARLES WALKER

Respondent: AZTEC STEEL PTY LTD T/AS KGT FREIGHT MANAGEMENT

File Number: PEG 192 of 2009

Judgment of: Lucev FM

Hearing date: 4 February 2010

Date of Last Submission: 4 February 2010

Delivered at: Perth

Delivered on: 4 February 2010

REPRESENTATION

The Applicant: No appearance

The Respondent: Mr R. Ashton (by leave)

ORDERS

1. Mr Ashton be granted leave to appear on behalf of the respondent pursuant to rule 9.04 of the Federal Magistrates Court Rules 2001 (Cth).

2. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 192 of 2009

IAN CHARLES WALKER

Applicant

And

AZTEC STEEL PTY LTD T/AS KGT FREIGHT MANAGEMENT

Respondent

REASONS FOR JUDGMENT

(Ex tempore amended and edited from the transcript)

Introduction

1. Mr Walker filed an application on 28 October 2009 in the Fair Work Division of this Court, under the Workplace Relations Act 1996 (Cth).[1] The application purported to elect for the proceedings to be dealt with under the small claims procedure of the Fair Work Act 2009 (Cth).[2] Along with the application, Mr Walker filed a form 5, which is used for small claims procedures under the FW Act. Mr Walker attached the following documents to his form 5:

   a)a certificate under s.650 of the WR Act, dated 15 September 2009, stating that the Australian Industrial Relations Commission had certified that all reasonable attempts to settle the matter by conciliation have been, or are likely to be, unsuccessful in respect of the alleged contravention of s.661 of the WR Act; that being alleged contravention with respect to the failure to give notice of termination of employment; and

   b)a notice of election dated 22 September 2009, to begin court proceedings for an order under s.665 of the WR Act, in respect of the alleged contravention of s.661 of the WR Act.

   [1] “WR Act”.

   [2] “FW Act”. FW Act, s.548.

2. Mr Walker should have accompanied his application with a form 1, which is used for claims under the WR Act, for this type of action. Mr Walker attached all of the correct documentation to support his claim at the time of the application, but the following information was not provided, due to the incorrect form being used to accompany his application:

   a)the grounds of the claim that his employment was unlawfully terminated;

   b)each section of the WR Act that is relevant to the claim; and

   c)the remedy that was sought.

3. The Court, in hearing this matter, has been prepared to waive the requirements to provide the above information at the time of filing the application.[3] The Court does that on the basis of the objects of the Federal Magistrates Act 1999 (Cth),[4] and FMC Rules, dealing with simplicity and expediency in dealing with the matter.[5]

   [3] Pursuant to the Court’s power to dispense with the necessity for compliance with the rules of the Court in rule 1.06 of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”).

   [4] “FM Act”.

   [5] FM Act, ss.3(2) and 42; FMC Rules, rule.1.03.

4. In circumstances where Mr Walker has not appeared at the final hearing of the matter, the Court has proceeded on the basis that it is a claim under s.661 for the giving of notice of termination, which it takes Mr Walker to allege not to have been provided.

Jurisdiction – WR Act or FW Act

1. As is evident from the information provided in the form 5, Mr Walker was employed between the period of 14 September 2006 and 22 May 2009. That period of employment was confirmed by Mr Ashton, who gave evidence for the respondent company.

2. The FW Act came into operation with effect from 1 July 2009.[6] Relevantly, it does not and does not purport to apply to matters prior to that date.[7] The claim, therefore, falls within the Court’s jurisdiction under the WR Act.[8]

   [6] FW Act, s.2.

   [7] FW Act; ss.566-568.

   [8] WR Act, s.847.

Application filed out of time

1. Mr Walker filed the application to this Court out of time, on 28 October 2009. The application should have been filed within 14 days after the lodgement of an election under s.651(6) of the WR Act.

2. At the first directions hearing of this matter on 16 November 2009, the parties agreed to an extension of time for the application to be filed. The Court, therefore, made an order that the applicant be granted leave to file the application out of time to the date of actual filing on 16 October 2009.

Legal representation

1. The respondent, Aztec Steel Pty Ltd,[9] would ordinarily be required to be represented by a lawyer in these proceedings, unless the Court grants leave to waive the requirement.[10] In the particular circumstances of this case, where:

   a)the matter is a relatively simple one;

   b)Mr Ashton, the operations manager for Aztec Steel, was allowed to appear at the first directions hearing of the matter;

   c)Mr Walker was initially self-represented, and has not appeared at the hearing of the matter today; and

   d)having regard to the objects of the FM Act and the FMC Rules,

   the Court is prepared to waive the requirement of Aztec Steel to be represented by a lawyer,[11] and indeed has allowed Mr Ashton to both appear and give evidence in these proceedings today.

   [9] “Aztec Steel”.

   [10] FMC Rules, r.9.04.

   [11] FMC Rules, rr.1.06 and 9.04.

The hearing – failure to give notice of termination

1. At the final hearing of this matter, as the Court has already indicated, Mr Walker did not attend. The Court canvassed with Mr Ashton whether the Court might dismiss the matter for default of appearance; in which case, there would be a right to apply to have the matter brought on again, in accordance with the usual requirements for having a matter brought on again once it had been dismissed for default of appearance.[12] Mr Ashton, however, indicated that the respondent’s preference was to have the matter dealt with, and on that basis the Court proceeded to hear the evidence of the Mr Ashton, on behalf of the respondent.[13]

   [12] FMC Rules, r.13.03C(1)(c); Singh v Official Trustee in Bankruptcy [2008] FMCA 521.

   [13] FMC Rules, r.13.03C(1)(e).

2. As the Court has already indicated, this is a claim for non-payment of notice on termination under s.661 of the WR Act, in this case, for a period of notice of at least two weeks; Mr Walker having been employed for more than one year, but not more than three years.

Evidence

1. The evidence before the Court indicates that Mr Walker was employed as a heavy rigid truck driver by Aztec Steel. Aztec Steel was, essentially, a subcontractor to DHL, moving a product by truck around parts of South-Western Australia for the principal contractor, which was Caltex. That contract had been in place for a number of years, but in late February 2009, apparently came to an end. DHL advised Aztec Steel that that contract would come to an end, and that the last deliveries under the existing subcontract between DHL and Aztec Steel, would have to be made on 22 May 2009.

2. Mr Ashton gave evidence that Aztec Steel had six drivers doing this work, and that in or about late February or early March of 2009, they were advised of the termination of the subcontract between DHL and Aztec Steel; and that as a consequence of that termination, the last shift for those drivers would be on 22 May 2009.

Consideration

1. In the circumstances, there is no reason to doubt the evidence given by Mr Ashton. It is logical, coherent and sounds rational, and the Court accepts that evidence.

2. Therefore, the Court finds that Mr Walker was given somewhere between two and a half and three months’ notice of the termination, which took effect on 22 May 2009. That period of notice having been given to him of his termination of employment, the claim under s.661 of the WR Act cannot succeed because a period of notice significantly greater than the minimum period required by the WR Act has been given.

Conclusion and orders

1. It follows, therefore, that the application by Mr Walker must be dismissed, and there will be an order accordingly.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: S. Dinon

Date: 9 February 2009