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

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).
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

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.
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…

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: [2010] FMCA 68
Decision Date: 4 February 2010

CaseChat Overview and Summary

Industrial Relations (General) Rules 2019 (Cth).
2. The respondent be granted leave to file an amended statement of claim in relation to the matter.
3. The application for the purported small claims procedure be dismissed with no order as to costs.

The case of Walker v Aztec Steel Pty Ltd involved an employee, Mr Walker, who brought an action against his employer, Aztec Steel Pty Ltd, alleging that his termination was unlawful due to a failure to provide adequate notice. Aztec Steel Pty Ltd sought to have the matter heard under the small claims procedure, but the court needed to determine if this was appropriate given the statutory framework governing the matter.

The primary legal issue was whether the Federal Circuit Court had jurisdiction to hear the matter under the small claims procedure. The court also needed to decide whether the procedural error in filing the incorrect form should be waived. This involved interpreting the applicable legislation, specifically the Workplace Relations Act 1996 and the Fair Work Act 2009, and determining the proper procedure for claims related to termination of employment.

The court held that the matter did not fall under the Fair Work Act 2009, which includes a small claims procedure, but rather under the Workplace Relations Act 1996, which does not provide for such a procedure. Despite the incorrect form being filed, the court exercised its discretion to waive the procedural requirements, allowing the respondent to amend the statement of claim. However, the court ultimately dismissed the application for the small claims procedure, concluding that the matter was not suitable for that process. The court granted the employer leave to be represented by Mr Ashton and allowed the filing of an amended statement of claim, but made no order as to costs.

Orders

Orders of the court

Mr Ashton be granted leave to appear on behalf of the respondent pursuant to rule 9.04 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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