Warrell v Fair Work Australia

Case [2013] FCA 291

FEDERAL COURT OF AUSTRALIA

Warrell v Walton [2013] FCA 291

Citation: Warrell v Walton [2013] FCA 291
Parties: EDWARD GEORGE WARRELL v VICE PRESIDENT WALTON, SENIOR DEPUTY PRESIDENT HAMBERGER, COMMISSIONER SIMPSON (A FULL BENCH OF FAIR WORK AUSTRALIA) and BACTO LABORATORIES PTY LTD
File number: NSD 1820 of 2012
Judge: FLICK J
Date of judgment: 4 April 2013
Catchwords: INDUSTRIAL LAW – dismissal of employee – remedy sought in respect to unfair dismissal - permission to be represented by a lawyer – no consideration as to whether permission should be granted – absence of a fair and just hearing   
Legislation:

Fair Work Act2009 (Cth) ss 385, 387, 394, 400, 577, 596, 604
Fair Work Amendment Act 2012 (Cth)

Explanatory Memorandum to the Fair Work Bill 2008    
Cases cited: Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Griffin v London Bank of Australia Limited (1919) 19 SR (NSW) 154
Warrell v Bacto Laboratories Pty Ltd [2011] FWAFB 7548
Warrell v Bacto Laboratories Pty Ltd [2012] FWAFB 4700
Warrell v Fair Work Australia, [2012] FCA 267
Date of hearing: 5 March 2013
Date of last submissions: 8 March 2013
Place: Sydney
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 36
Counsel for the Applicant: Mr I Neil SC with Mr C Bolger
Solicitor for the Applicant: Clayton Utz
Counsel for the First Respondents: The First Respondent submitted save as to costs
Counsel for the Second Respondents: The Second Respondent submitted to any order of the Court

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 1820 of 2012
BETWEEN:

EDWARD GEORGE WARRELL
Applicant
AND:

VICE PRESIDENT WALTON, SENIOR DEPUTY PRESIDENT HAMBERGER, COMMISSIONER SIMPSON (A FULL BENCH OF FAIR WORK AUSTRALIA)
First Respondent

BACTO LABORATORIES PTY LTD
Second Respondent

JUDGE:

FLICK J

DATE OF ORDER:

4 APRIL 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Applicant is to bring in Short Minutes of Orders to give effect to these reasons within 14 days.   

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.  


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 1820 of 2012
BETWEEN:

EDWARD GEORGE WARRELL
Applicant
AND:

VICE PRESIDENT WALTON, SENIOR DEPUTY PRESIDENT HAMBERGER, COMMISSIONER SIMPSON (A FULL BENCH OF FAIR WORK AUSTRALIA)
First Respondent

BACTO LABORATORIES PTY LTD
Second Respondent

JUDGE:

FLICK J

DATE:

4 APRIL 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The Applicant in the present proceeding, Mr Edward George Warrell, was employed as a gardener by the Second Respondent, Bacto Laboratories Pty Ltd (“Bacto Laboratories”).

  2. Mr Warrell’s services were terminated by a letter dated 16 March 2011.

  3. Mr Warrell sought to challenge his dismissal. Regrettably, however, he mistakenly lodged an unfair dismissal application with the Fair Work Ombudsman rather than with Fair Work Australia. Mr Warrell has difficulties with reading and writing and is brain damaged. The application was not lodged with Fair Work Australia until after the time prescribed by s 394(2) of…

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AGLC
Warrell v Fair Work Australia [2013] FCA 291
Case
[2013] FCA 291
Decision Date

CaseChat Overview and Summary

The case of Warrell v Fair Work Australia involves the Applicant, who seeks an order setting aside a decision made by the Full Bench in June 2012. The Respondents to this Originating Application are the members of the Full Bench and Bacto Laboratories, all of whom have filed submitting appearances. The Applicant is contesting the dismissal of his employment and seeks a remedy under the Fair Work Act.

The legal issues before the Court revolve around the procedural fairness of the decision-making process. Specifically, the Court must determine whether the Full Bench's decision to dismiss the Applicant's application for unfair dismissal was made in accordance with the principles of natural justice and procedural fairness. The Applicant argues that the Full Bench failed to consider whether permission should be granted for him to be represented by a lawyer, thus depriving him of a fair and just hearing.

The Court found that the Full Bench did not consider whether the Applicant should be granted permission to be represented by a lawyer, which is a critical aspect of ensuring procedural fairness. The Court held that the Full Bench's failure to address this matter constituted a breach of the principles of natural justice and procedural fairness. Consequently, the Court set aside the decision of the Full Bench and remitted the matter for reconsideration.

The Court did not make any specific orders beyond setting aside the decision of the Full Bench and remitting the matter for reconsideration. The Applicant is required to bring in Short Minutes of Orders within 14 days to give effect to these reasons.

Orders

Orders of the court

1. The Applicant is to bring in Short Minutes of Orders to give effect to these reasons within 14 days.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Now before the Court is an Originating Application seeking (inter alia) an order setting aside the June 2012 decision of the Full Bench. The Respondents to that Originating Application are the members constituting the Full Bench and Bacto Laboratories. All Respondents have filed submitting appearances. THE DECISION-MAKING PROCESS TO-DATE Part 3-2 of the Fair Work Act provides for the making of an application and the grant of a remedy in respect to the “unfair dismissal” of an employee. In December 2012, after the date when the events giving rise to the cause of action occurred, amendments were made to Part 3-2 of the Fair Work Act by the Fair Work Amendment Act 2012 (Cth). “Unfair dismissal” was defined as at March 2011 by s 385 within Part 3-2 of the Fair Work Act as follows:What is an unfair dismissal A person has been unfairly dismissed if FWA is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy.Section 387, again as at March 2011, further addresses that which constitutes “harshness” as follows: Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account: (a)whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and (b)whether the person was notified of that reason; and (c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e)if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and (f)the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h)any other matters that FWA considers relevant. A person who has been dismissed may apply to Fair Work Australia for an order “granting a remedy”: s 394(1). Before the December 2012 amendments, any such application was to be made “within 14 days after the dismissal took effect” or within such further time as may be allowed: s 394(2). Section 394(3) provided as follows: FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account: (a)the reason for the delay; and (b)whether the person first became aware of the dismissal after it had taken effect; and (c)any action taken by the person to dispute the dismissal; and (d)prejudice to the employer (including prejudice caused by the delay); and (e)the merits of the application; and (f)fairness as between the person and other persons in a similar position.

Ratio Decidendi

Legal Principle Established

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