Wills v Passeck [2011] FMCA 39 (31 January 2011)

Federal Magistrates Court of Australia

[Index] [Search] [Download] [Help]

---

Wills v Passeck [2011] FMCA 39 (31 January 2011)

Last Updated: 2 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILLS v PASSECK

[2011] FMCA 39

INDUSTRIAL LAW – Small claim for unpaid wages – claim under the Fair Work Act 2009 alleging unlawful termination of employment.

PRACTICE AND PROCEDURE - No section 777 certificate from Fair Work Australia accompanying the application and claim – unlawful termination claim dismissed for lack of jurisdiction.

Fair Work Act 2009 (Cth), ss.365, 369, 371, 548(1A), 777, 779

Rentuza v Westside Auto Wholesale (2009) 236 FLR 231; [2009] FMCA 1022

Applicant:

SANDRA LESLEY WILLS

Respondent:

AXEL PASSECK

File Number:

PEG 235 of 2010

Judgment of:

Lucev FM

Hearing date:

31 January 2011

Date of Last Submission:

31 January 2011

Delivered at:

Perth

Delivered on:

31 January 2011

REPRESENTATION

The Applicant:

In person

The Respondent:

No appearance

ORDERS

(1) That Ms Wills’ claim under the Fair Work Act 2009 (Cth) alleging unlawful termination of employment be dismissed.
(2) That with respect to Ms Wills’ application in the small claims list:

• (a) the respondent, if not already served, be served by 14 February 2011; and
• (b) otherwise the application be adjourned to 9.15 am on 28 February 2011, with liberty to both parties to appear by telephone.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

PEG 235 of 2010

SANDRA LESLEY WILLS

Applicant

And

AXEL PASSECK

Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons revised and edited from the transcript)

1. There is one application on the Court file but two separate claims before the Court in this matter. There is, in addition to the application, a Form 3 Claim under the Fair Work Act 2009 (Cth)[1] alleging unlawful termination of employment.
2. The application is an application under the small claims jurisdiction of the Court for two weeks’ wages owing of $1000, and the grounds of that application are that the applicant was given no notice of dismissal. There is no other detail in respect of the small claims application, but it appears to be one under s.548 (1A) of the FW Act for an amount payable under s.548(1A)(a) of the FW Act and also appears to be one which would otherwise be within jurisdiction. The Court notes that the respondent to that application is said to be Axel Passeck.
3. The second claim is one which alleges unlawful termination of employment. That is an application which can be made to this Court under s.779 of the FW Act and it is an application which is made on a Form 3, the standard form. The Court notes that the form is incomplete and the details provided are scant, for example:
   1. at part B, point 10 – there is no period of employment listed;
   2. at part G, point 24, which requires the grounds of the claim of the unlawful termination to be specified – the “other” box is ticked and there is a handwritten notation which says “letter” but there is no letter attached to the application;
   100. at part H, point 25, which requires the remedies sought to be listed – there is an indication that compensation is sought and, again, the “other” box is ticked with an intimation that “loss of wages” is actually sought and probably, the Court expects, the same loss of wages as is claimed in the small claims application; and
   4. at part I, point 27, the Form indicates that a certificate issued by Fair Work Australia under s.777 of the FW Act must accompany the application and claim unless an injunction is sought, and an injunction is not sought in this matter – it is indicated that a copy of the certificate is attached, followed by a question mark. A copy of a s.777 certificate was not attached to the application, but following inquiries which the Court understands were made through the Court’s officers, a certificate has been provided this morning. The certificate provided is a certificate under s.369 of the FW Act which relates to an application under s.365 of the FW Act.
4. The Court notes that according to the s.365 application the respondent to that application before Fair Work Australia is “Sea Breeze Resort”. Therefore, not only is that certificate in respect of a different respondent, but it is a certificate relevant to a s.371 application under the FW Act not, as here, a s.779 application under the FW Act. There is, therefore, no s.777 certificate attached to the application and the Court, for reasons which are set out in detail in Rentuza v Westside Auto Wholesale,[2] has no jurisdiction if there is no s.777 certificate issued by Fair Work Australia.
5. Because there is no s.777 certificate attached to the application in this matter this Court has no jurisdiction with respect to the unlawful termination claim and it will be dismissed.[3]
6. With respect to the small claims matter, the Court has been advised this morning by Ms Wills to the effect to that the papers were faxed yesterday, not to the respondent, Mr Passeck, but to some other person. In the circumstances, the Court is not satisfied that there has been service on Mr Passeck: there is certainly no evidence of that before the Court. Mr Passeck does not appear nor has any response been filed and in the circumstances, given that, if service was effected, it was only effected yesterday, in respect of an application made on 9 December 2010, that is hardly surprising.
7. It follows, in the Court’s view, that the matter should therefore be adjourned to allow the respondent to be served properly, if not already served, and for there to be time for a response to be filed to the small claims application.

I certify that the preceding 7Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !sevenseven (7) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:

Date: 1 February 2011

---

[1] “FW Act”.
[2] (2009) 236 FLR 231; [2009] FMCA 1022 (“Rentuza”).
[3] Rentuza FLR at 237 per Lucev FM; FMCA at paras.21 and 22 per Lucev FM.