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[2012] FCA 1406
Federal Court of Australia
2012-06-07
Cowdroy J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The respondent is a former employee of the appellant. Commencing in 2004 she was employed in the appellant's food and beverage operations at the Adelaide Festival Centre. She progressed within the company until 27 September 2010. On that date, the appellant sent a letter to the respondent advising her that because the appellant had lost its contract with the Adelaide Festival Centre, she would be retrenched effective on 12 December 2010. On 24 November 2010 the respondent resigned her position with the appellant for personal reasons. 2 On or about 7 March 2012, the respondent lodged a claim with the Industrial Relations Court of South Australia ('the Industrial Court'). The respondent claimed that she was entitled to redundancy pay because the appellant terminated her employment for redundancy. The appellant resisted this claim on a number of grounds. One of the grounds was that the respondent was not entitled to redundancy pay because she had less than 12 months of relevant service with the appellant. The appellant contended that cl 5 of Sch 4 to the Fair Work (Transitional Provisions and Consequential Amendment) Act 2009 (Cth) provided that service with an employer prior to 1 January 2010 did not count unless an employee's terms and conditions of employment immediately prior to then provided an entitlement to redundancy pay. 3 The learned Industrial Magistrate found that s 72B of the Fair Work Act 1994 (SA) ('the SA Act'), together with the South Australian Minimum Standard for Severance Payments Case 2006 [2006] SAIRComm 25 (the 'Minimum Standards Case') (a decision of the South Australian Industrial Relations Commission) provided for an entitlement to redundancy pay. Therefore, the respondent's service prior to 1 January 2010 was to be included in calculating her entitlement to redundancy pay. On this premise, the Industrial Magistrate upheld the respondent's claim and on 7 June 2012 ordered that the appellant pay the respondent $11,305.30. 4 The appellant appealed this decision to this Court. On 19 November 2012 this Court ordered by consent that the appeal be allowed, on the basis that the operation of s 16(1) of the Workplace Relations Act 1996 (Cth) and s 109 of the Constitution; and subsequently the operation of s 26(1) of the Fair Work Act 2009 (Cth) and s 109 of the Constitution had the consequence that the Minimum Standards Case and s 72B of the SA Act did not apply to the respondent's employment. Consequently, the respondent was not entitled to redundancy pay. 5 As a result, the Court directed that parties provide written submissions to the Court on the question of whether the Court should order repayment of the money which the respondent had received from the appellant pursuant to the Industrial Magistrate's decision. The appellant was directed to provide written submissions to the Court by 23 November 2012. The respondent was directed to provide written submissions to the Court by 30 November 2012. 6 On 23 November 2012 the appellant filed its submissions. No response was received from the respondent. On 5 December 2012 the Court received an email from Mr Tim Bourne, solicitor for the respondent, which stated: Dear Associate My attempts to contact Ms Sale [sic] by telephone and email and obtain her instructions have, since 19 November, been unsuccessful. In particular, the stamped copy of the Appellant's submission received on 26 November was forwarded to Ms Sales on the same date for instructions, but with no response. In these circumstances, I am not in a position to provide a submission on the issue of restitution. I apologise to the Court. 7 Accordingly, the Court will consider the issue of repayment of such monies in the absence of any submission of the respondent.
consideration 8 If an appellate court overturns a decision under which a party is ordered to pay money to another, that party is entitled to repayment of the money which it paid under the judgment at first instance: see Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2011] FCAFC 141 at [4] and Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445 at [25] and the authorities cited within that paragraph. That entitlement is a right. It is not subject to the discretion of the Court: see Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659 at 660. Such authorities also state that the party seeking repayment is entitled to claim interest at the relevant rate. However, in its submissions the appellant stated that it will forgo its claim to interest. 9 A party seeking repayment is also entitled to repayment even when the appellate decision does not finally determine this matter: see TCN Channel 9 v Antoniadis (No 2) (1999) 48 NSWLR 381 ('Antoniadis') at [11]. Therefore, the fact that the orders of this Court of 19 November 2012 remitted this matter to the Industrial Court for reconsideration does not preclude repayment of the money received by the respondent. 10 The Court notes that the appellant did not seek repayment of the money in its notice of appeal. However, as Handley, Beazley and Stein JJA stated in Antoniadis at [3]: This question, which is of some importance to the client, is so frequently overlooked by legal advisers acting for appellants that an embarrassing body of case law has accumulated which establishes that appropriate relief can be granted after the appeal has been determined: see Production Spray Painting and Panel Beating Pty Ltd v Newnham [No 2] (1992) 27 NSWLR 659 at 661. 11 The Court clearly has power under s 23 of the Federal Court Act 1976 (Cth) to make an order requiring repayment. It follows that it must make such an order in this case. 12 However, the Court still has power to mould such an order on discretionary principles if necessary: see Antoniadis at [8]. Although no evidence was tendered of the respondent's financial position, the respondent's solicitor indicated during these proceedings that the respondent would require a period of time to repay the money. The Court considers that it would be appropriate for the respondent to be given 28 days, as opposed to the 21 days proposed by the appellant, to repay the sum. It will make orders accordingly. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.
Compass Group (Australia) Pty Ltd
Sales