John Sutherland v Fabglass Bathroom Products Pty Ltd [1995] IRCA 333

CATCHWORDS INDUSTRIAL LAW - UNFAIR TERMINATION - JURISDICTION - accrued jurisdiction of the Industrial Relations Court - substratum of facts. Industrial Relations Act 1988, ss170EA, 170ED, 170EE Philip Morris Inc. v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Fencott v Muller (1983) 152 CLR 570 Stack v Coast Securities Pty Ltd (1983) 154 CLR 261 John Weeks Pty Ltd v Foodland Associated Ltd (1987) 74 ALR 247 Ardino v Count Financial Group Pty Ltd (1994) 1 IRCR 221 No. VI 2059 of 1995 JOHN SUTHERLAND v FABGLASS BATHROOM PRODUCTS PTY LTD MARSHALL J MELBOURNE 26 JULY 1995

IN THE INDUSTRIAL RELATIONS COURT ) ) ) OF AUSTRALIA ) ) No. VI 2059 of 1995 VICTORIA DISTRICT REGISTRY ) BETWEEN: JOHN SUTHERLAND Applicant AND: FABGLASS BATHROOM PRODUCTS PTY LTD Respondent JUDGE: Marshall J PLACE: Melbourne DATE: 26 July 1995

ORDER

THE COURT ORDERS THAT: 1. The respondent's notice of motion filed 25 July 1995 is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT ) ) ) OF AUSTRALIA ) ) No. VI 2059 of 1995 VICTORIA DISTRICT REGISTRY ) BETWEEN: JOHN SUTHERLAND Applicant AND: FABGLASS BATHROOM PRODUCTS PTY LTD Respondent JUDGE: Marshall J PLACE: Melbourne DATE: 26 July 1995

REASONS FOR JUDGMENT On 16 March 1995 the applicant filed in the Registry his application pursuant to s170EA Industrial Relations Act 1988 ("the Act") for a remedy in respect of the termination of his employment by the respondent. The application disclosed that the applicant had been employed by the respondent as a "sales manager/sales representative". The applicant alleged in the application that he had received a separation certificate from the respondent on 15 March 1995 and that such certificate was dated 10 March 1995. The respondent filed in the Court on 10 May 1995 a notice of appearance dated 14 April 1995. On 10 May 1995 the matter was referred to the Australian Industrial Relations Commission ("the Commission") for conciliation pursuant to s170ED of the Act. On 29 May 1995 Commissioner Eames certified that the matter was unable to be settled by conciliation in the Commission. On 4 July 1995 Judicial Registrar Ryan ordered by consent that the matter proceed to trial and fixed the matter for hearing on 2 and 3 August 1995. On 21 July 1995 the respondent filed a notice of motion seeking leave to file a cross claim for relief in the accrued jurisdiction of the Court. The notice of motion was supported by an affidavit of Robert Barrington Scott, a solicitor, filed on 21 July 1995. At the hearing of the notice of motion on 25 July 1995 Mr Bruce Shaw of counsel appeared for the applicant and Mr Brian Lacy of counsel appeared for the respondent. Mr Lacy filed in Court a replacement cross claim and notice of motion and a further affidavit of Mr Scott sworn 25 July 1995. The issue raised by the notice of motion, as amended, is whether the Court should exercise its accrued jurisdiction by granting leave to the respondent to file a cross claim for relief. The cross claim would seek damages in the sum of $11,161.60 and interest therein arising from an alleged debt owed to the respondent by the applicant. The debt is alleged to have arisen as a result of the respondent paying to the applicant his wages in gross amount rather than net of taxation. Mr Lacy informed the Court that the respondent had terminated the employment of the applicant because the applicant had breached a fundamental term of his contract of employment in that a condition of such employment was the holding of a current driver's licence. The Court was further informed that the applicant's employment was terminated on 23 December 1994 at which time the respondent discovered that since some earlier point in time the applicant's driver's licence had been cancelled. Mr Lacy submitted that in an application under s170EA of the Act all of the circumstances of the employee's employment would need to be considered. He also submitted that if the termination was held to be unlawful the Court would need to consider the question of the amount of salary to be determined as remuneration lost by the employee. Mr Lacy told the Court that the payment of "gross" rather than "net" wages to the applicant by the respondent would not be an issue in the s170EA application. That application will essentially focus on the issue of the applicant's failure to have a current driver's licence as was made clear by Mr Lacy. There was no dispute between counsel as to the Court's powers to invoke its accrued jurisdiction. Very helpful submissions on this issue were provided by counsel. The Court's accrued jurisdiction to hear non-federal common law claims arises from the Constitution (ss 75 and 76). See Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, 494, 506-507, 512, 538-539, 547. See also Fencott v Muller (1983) 152 CLR 570, 602-608 and Stack v Coast Securities Pty Ltd (1983) 154 CLR 261, 290-294. There was also no dispute between counsel that a respondent was entitled to move the Court for the exercise of its discretion to invoke its accrued jurisdiction to allow a cross claim. See Stack at 279 and John Weeks Pty Ltd v Foodland Associated Ltd (1987) 74 ALR 247, 251. It was conceded by Mr Lacy that the application under s170EA was bona fide and arguable. See Ardino v Count Financial Group Pty Ltd (1994) 1 IRCR 221, 230. The real issue between the parties was whether or not the cross claim for debt and the application under s170EA of the Act "so depend on common transactions and facts that they arise out of a common sub-stratum of facts" (per Mason J in Philip Morris at 512 as followed in Fencott at 607 by Mason, Murphy, Brennan and Deane JJ). I agree with Mr Shaw that the cross claim does not come from the same sub-stratum of facts which arise in the application under s170EA of the Act. The issue of the requirement to maintain a current driver's licence is quite separate and discrete from the issue of any alleged debt owing to the respondent as a result of any over payment made to the applicant by mistake. Mr Lacy referred to the question of the quantum of wages of the applicant as being relevant to the issue of relief under s170EE of the Act. However, he was unable to inform the Court whether there was any issue arising between the parties as to what, in fact, the applicant's wages were at the time of the termination of his employment. The cross claim and the application under s170EA are not in my opinion within the scope of one single controversy. The notice of motion is dismissed. As a result of the dismissal of the notice of motion insofar as leave to file a cross claim in the accrued jurisdiction is concerned, the s170EA matter will be heard and determined by Judicial Registrar Ryan on the dates already allocated subject to any application made to him. I certify that this and the preceding (3) pages are a true copy of the Reasons for Judgment herein of His Honour Justice Marshall. Associate: Date: 26 July 1995 Counsel for the Applicant: Mr B. J. Lacy Solicitor for the Applicant:Gabriel & Co Counsel for the Respondent: Mr B. G. Shaw Solicitor for the Respondent: Keogh & Co Date of hearing: 25 July 1995 Date of judgment: 26 July 1995