WATSON v Trojan Work Force Staff Solutions

[2014] FCCA 1709

FEDERAL CIRCUIT COURT OF AUSTRALIA

WATSON v TROJAN WORK FORCE STAFF SOLUTIONS [2014] FCCA 1709

Catchwords:
INDUSTRIAL LAW – Unfair dismissal – no jurisdiction – Fair Trading Act – no loss suffered – claims struck out.

Legislation:

Fair Trading Act 1999
Fair Work Regulations 2009
Fair Work Act 2009
Social Security (Administration) Act 1999

Applicant: STEVE WATSON

Respondent: TROJAN WORK FORCE STAFF SOLUTIONS

File Number: MLG 189 of 2014

Judgment of: Judge Riethmuller

Hearing date: 7 April 2014

Date of Last Submission: 7 April 2014

Delivered at: Melbourne

Delivered on: 7 April 2014

REPRESENTATION

Counsel for the Applicant: Appearing in Person

Counsel for the Respondent: Mr O'Brien

Solicitors for the Respondent: Ai Group Legal Pty Ltd

ORDERS

1. The matter be adjourned to 16 October 2014 at 10.00 a.m. for final hearing (with an estimated hearing time of 1 day).

2. The Applicant’s claims other than:

   (a)Claims for entitlements under the Storage Service Award;

   (b)Claim for damages for failure to provide a separation certificate

   be struck out.

3. The Respondent provide disclosure of the Applicant’s pay records and personnel file on or before 31 May 2014.

4. The Applicant file and serve an Affidavit setting out the facts and circumstances he relies upon AND a detailed calculation of what he says his entitlements and damages are on or before 30 June 2014.

5. The Respondent file and serve any responding material on or before 31 July 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 189 of 2014

STEVE WATSON

Applicant

And

TROJAN WORK FORCE STAFF SOLUTIONS

Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. The applicant in this case pursues a number of remedies including a claim for unfair dismissal under the Fair Work Act 2009 and a claim under the Fair Trading Act 1999 with respect to the advertisement which he answered, ultimately leading to him obtaining the employment the subject of these proceedings.

2. The applicant also makes claims that various things occurred during the course of his employment that he alleges were unfair. He further claims that he was paid and provided with conditions under the Manufacturing Award when in fact on his case he says he ought to have been employed under the terms of the Storage Services Award.

3. He also claims damages as a result of a failure, he says, of the respondent to provide him with a separation certificate (presumably relying upon reg.3.40 of the Fair Work Regulations 2009 and ss.196 and 199 of the Social Security (Administration) Act 1999) when they were obliged to do so, causing him to not be entitled to social security benefits for a period of time.

4. It is clear that I do not have jurisdiction to deal with an unfair dismissal claim see ss.390 and 394 of the Fair Work Act 2009. I therefore strike out this part of the applicant’s application.

5. It is also clear that he has a claim under the Fair Trading Act 1999, in that he was not in employment at the time that he answered the advertisement and he did take up employment that was offered to him. To the extent that there are allegations of a breach of that Act they are more appropriately taken up with the regulatory body. As there is no loss in this regard (he had no employment before this job was obtained), it seems to me that the applicant can have no proper claim that has reasonable prospects of succeeding. I therefore strike out the applicant’s claim to the extent that it relates to the Fair Trading Act.

6. The question of whether or not the applicant was paid under the correct award is a matter over which that I have jurisdiction. It is not entirely clear to me from the papers how strong or weak the case may be in this regard, however as he is unrepresented it seems to me to be appropriate that it simply be set down for a hearing. It also seems to me that the issues about the separation certificate and whether damages flow are sufficiently connected with the questions that I will be determining, that I would have accrued or associated jurisdiction with respect to them and that they too should form part of the hearing.

7. I therefore order that the applicant’s claims other than:

   a)Claims for entitlements under the Storage Service Award; and

   b)Claim for damages for failure to provide a separation certificate;

   be struck out.

8. I will further order that:

   a)the Respondent provide disclosure of the Applicant’s pay records and personnel file on or before 31 May 2014;

   b)the Applicant file and serve an Affidavit setting out the facts and circumstances he relies upon and a detailed calculation of what he says his entitlements and damages are on or before 30 June 2014; and

   c)the Respondent file and serve any responding material on or before 31 July 2014.

9. This is likely, in the context of this case, to enable the issues to be fairly ventilated at an early trial.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 31 July 2014