Fishwives Pty Limited and Stephen Fong and another [2004] NSWIRComm 17 (5 December 2003)

Last Updated: 29 March 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Fishwives Pty Limited and Stephen Fong and another [2004] NSWIRComm 17

FILE NUMBER(S): IRC4649 & 6888

HEARING DATE(S): 05/12/2003

EX TEMPORE DATE: 05/12/2003

PARTIES:

APPELLANT/CROSS-RESPONDENT

Fishwives Pty Limited

RESPONDENT/CROSS-APPELLANT

Stephen Fong and Christine Chalmers

JUDGMENT OF: Walton J Vice-President Sams DP Cambridge C

LEGAL REPRESENTATIVES

APPELLANT/CROSS-RESPONDENT

Mr D Dickenson of counsel

SOLICITORS

Mr R G Macaulay

Pryor Tzannes & Wallis

RESPONDENT/CROSS-APPELLANT

Mr A Rogers of counsel

SOLICITORS

Mr S Ingui

Colin Biggers & Paisley

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996 s19 s181(2)

JUDGMENT:

1

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: Walton J, Acting President

Sams DP

Cambridge C

Friday 5 December 2003

Matter No. IRC 4649 of 2003

FISHWIVES PTY LIMITED AND STEPHEN FONG & ONOR

Application by Fishwives Pty Limited for leave to appeal and appeal against a decision of Commissioner Macdonald given on 31.7.2003 in Matter No. IRC4016 of 2002

Matter No. IRC 6888 of 2003

STEPHEN FONG AND CHRISTINE CHALMERS AND FISHWIVES PTY LIMITED

Application by Stephen Fong and Christine Chalmers to extend time to appeal and leave to appeal against a decision of Commissioner Macdonald given on 31 July 2003 in Matter No. IRC4016 of 2003.

DECISION

Extempore

[2004] NSWIRComm 17

1 This is an application for leave to appeal and, if granted, an appeal by Fishwives Pty Limited ("the appellant") from a decision of Macdonald C delivered on 31 July 2003. The decision of the Commissioner concerned an application by the appellant to pay a lower amount of severance pay than might otherwise be due to two of its employees, namely, Stephen Fong and Christine Chalmers ("the respondents"), pursuant to clause 26.6 of the Restaurant Employees (State) Award ("the Award").

2 In particular, the appellant had made an application pursuant to a proviso in that clause which was expressed in the following terms:

However, an employer can apply to the Industrial Relations Commission for permission to pay a lower amount if the employee gets another job or if an employer cannot afford to pay all or part of those severance moneys.

3 The appellant correctly submitted, in our view, that the matter concerned an issue of award interpretation, namely, whether, as to the first limb of the proviso in clause 26.6 of the award, the respondents had obtained a job after the termination of their employment due to redundancy. If that question were answered in the affirmative, then there remained a question as to the exercise of the discretion by the Commission (which was described by the appellant as being a wide one) as to whether the severance payment should, in all the circumstances, be reduced.

4 Whilst we agree with the appellant that the question of construction raises matters of general importance to the regulation of employment in the restaurant industry and therefore may normally attract leave, we do not consider that that position applies in the case of Mr Fong.

5 As was properly conceded by Mr Dickinson of counsel for the appellant, it is difficult to conceive on any view of the respective cases that the appellant has satisfied the criteria for the operation of the proviso with respect to Mr Fong. We consider that Mr Fong did not obtain employment after termination and hence the proviso does not operate. That application must always have failed. We refuse leave to appeal in the case of Mr Fong.

6 There remains the question of Ms Chalmers, who did find limited employment in the restaurant industry after her termination. Hence, the construction question is squarely raised.

7 We consider that the appellant was correct in submitting that Macdonald C had erred in his interpretation of the provision. He substituted for the words appearing in the clause the words found in an earlier version of the award (inserted on 30 October 1995), in circumstances where there were plain differences in the meanings of the respective provisions between the earlier and later versions of the proviso in the award.

8 That being said, we can well understand the confusion which the Commissioner experienced in construing the provision as the new provisions in the award arose after a decision given under s.19 of the Industrial Relations Act 1996 in order to make the proviso read, “in plain English”. The proviso, in our view, requires urgent review by the parties to the award.

9 The result of this finding of legal error is, we think, such as to compel the grant of leave to appeal, given that factor and the general importance of the provision to the industry (in the case of Ms Chalmers). It is also sufficient, in our view, to uphold the appeal without the need to consider broader questions of jurisdiction and construction, otherwise raised by the respondent.

10 Both parties agree that the determination of the construction question per se did not end the matter on appeal, as it was appropriate for the Commission in these proceedings to turn to consider what then was the appropriate application of the proviso in clause 26.6.

11 In our view the proviso is ambiguous, but without embarking upon the proper construction of it, we are satisfied that it would be inappropriate to exercise a discretion to lower the amount of severance payments to Ms Chalmers. We do not consider her employment with the real estate agent is a relevant consideration. We do consider that the question of whether her employer found her alternative employment (as contemplated by the earlier version of the Award) should be taken into account (as should the nature of her subsequent position and the duration of that engagement).

12 On balance, we consider that the appellant has not demonstrated a case to lower the severance payment, as we do not consider the alternative position found was such as to warrant the reduction, having regard to its limited and temporary nature.

13 In the result, we confirm and make to the extent required, the orders made by Macdonald C on 31 July 2003.

We order:

1. Leave to appeal is refused with respect to the case concerning Mr Fong.

2. Leave to appeal is granted with respect to the case concerning Ms Chalmers.

3. The appeal is upheld with respect to the case of Ms Chalmers only to the extent necessary to rectify the error of law; otherwise the appeal is dismissed.

4. We confirm the orders of Macdonald, C with respect to both Mr Fong and Ms Chalmers.

[THE COMMISSION HEARD PARTIES AS TO COSTS]

14 We have called for hearing today an appeal lodged by the respondents to the principal appeal for costs in relation to the first instance proceedings, that appeal having been filed on 1 December 2003. It was agreed that that matter would be argued today.

15 That appeal comes forward initially by way of an application to extend time which, of course, is the threshold condition for the appeal to be heard.

16 We also have before us an application for costs on the appeal, that costs application arising squarely in the submissions of the parties on the appeal. Their respective costs applications are pursued, as they must be, pursuant to s181(2) of the Act. We have earlier ruled that in so far as the argument arises in these proceedings, we think no case has been made as pressed under par(a) of that sub-section. The matter falls to be determined to the extent reached before us, that is to the extent that the matter relevantly comes before us under par(b) of the sub-section - in short, whether the proceedings were instituted without reasonable cause.

17 As to the application to extend time and to the extent reached, the application for leave to appeal and appeal against the purported decision of Commissioner Macdonald not to award costs at first instance, we have had placed before us the affidavit of Christine Chalmers sworn 4 December 2003. That affidavit and the reasons given in it for the application to extend time are the only grounds provided for what, on any view, must be considered to be a very late application to extend time in the proceedings.

18 We consider that the applicant for the extension of time has not made out a case for the extension of time and we refuse it. In the result that appeal is not reached in a relevant statutory sense.

19 In relation to the application for costs on the appeal we consider, having regard to the decision we have given earlier today in the primary appeal, that the statutory threshold has been crossed, namely that the condition arising under s 181(2)(b) has been met in relation to Mr Fong’s case following the appeal. We do not consider that the reference in paragraph 27 of the appellant’s submission in the primary appeal in its submissions filed on 28 October 2003 overcomes or avoids that conclusion because it is plain on the submissions of the appellant, in our view, that a case was pressed with respect to Mr Fong and whatever may be the obscurity of paragraph 27, no proper notice was given to the appellant of any changed position in that respect. Indeed we consider that paragraph 27 by its terms is ambiguous in relation to Mr Fong’s position.

20 In those circumstances, and in the light of our decision today, we consider that it is appropriate to exercise our discretion to award costs in relation to the case concerning Mr Fong.

21 We note in that respect that we recognise that it is our responsibility to not only make an assessment as to the requirements of s181(2)(b), namely what we have described as the threshold issue, but also to make an assessment as to whether, in the exercise of our discretion, we should nonetheless award costs. For the reasons we have given we so decide.

22 We make a further order that the appellant in Matter IRC03/4649 shall pay the costs of Stephen Fong of the appeal as agreed or, in default, as assessed. In that respect, we note that we have adopted the formulation earlier proposed by Mr Rogers in favour of any apportionment of costs on the appeal.

LAST UPDATED: 25/03/2004