Termination of employment - jurisdiction - employer of 100 or fewer employees - proceedings conducted on the papers

[1] Mr Richard John Wilkie has made application under s.643(1) of the Workplace Relations Act 1996 (the Act) on grounds that the termination of his employment on 4 July 2007 by United Cinemas was harsh, unjust and unreasonable - the ground referred to in paragraph 643(1)(a) of the Act;

[2] United Cinemas lodged a jurisdictional objection to the application on grounds that it employed 100 employees or fewer at the relevant time.

[3] Sub-sections (10), (11) and (12) of s.643 of the Act prescribe:

"(10) An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, if, at the relevant time, the employer employed 100 employees or fewer, including:

(a) the employee whose employment was terminated; and

(b) any casual employee who had been engaged by the employer on a regular and systematic basis for at least 12 months;

(11) For the purposes of calculating the number of employees employed by an employer as mentioned in subsection (10), related bodies corporate (within the meaning of section 50 of the Corporations Act 2001) are taken to be one entity.

(a) the relevant time is the time when the employer gave the employee the notice of termination, or the time when the employer terminated the employee's employment, whichever happened first; and

(b) for the purposes of calculating the number of employees employed by the employer, employee has the same meaning as in paragraph (b) of the definition of that term in section 636."

[4] In respect of the meaning of 'employee' in s.643(12) above, for the purposes of calculating the number of employees employed by the employer the following are relevant to this application:

(a) The definition of 'employee' in paragraph (b) of s.636 includes:

(a) to the extent that a provision applies to, or in relation to, the termination of employment of an employee within the meaning of subsection 5(1) - an employee within the meaning of that subsection …"

(b) Subsection 5(1) prescribes:

"Basic definition In this Act, unless the contrary intention appears:

employee means an individual so far as he or she is employed, or usually employed, as described in the definition of employer in subsection 6(1), by an employer, except on a vocational placement."

(c) Subsection (1) of s.6 (Employer) prescribes:

"Basic definition In this Act, unless the contrary intention appears:

a constitutional corporation, so far as it employs, or usually employs, an individual; …"

[5] The respondent moved for the dismissal of the application on the ground that it is outside the jurisdiction of the Commission before the matter was referred for conciliation. Therefore, in accordance with s.645(2) of the Act, the Commission is required to deal with the motion before taking any action on the application.

[6] In arriving at a decision to proceed to determine this jurisdictional issue on the papers [1] I took into account:

(a) The costs that would be caused to the business of the respondent by requiring the respondent to appear at a jurisdictional hearing. [2]

(b) Various provisions of the Act; [3] and

(c) It being well settled that the Commission's proceedings are subject to the rules of natural justice. [4] The term natural justice in the context of administrative decision making has been essentially equated to an obligation to act fairly or to accord procedural fairness.[5] In a statutory setting:

"Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Aust Pty Ltd v FC of T [1963] HCA 41; (1963) 113 CLR 475, Kitto J pointed out (at pp 503-4) that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on 'the particular statutory framework'. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting ( R v Commonwealth Conciliation and Arbitration Commission ; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 58 ALJR 308 at 314, 318; [1984] HCA 29; 52 ALR 417 at 427-8, 434).

In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations (cf Salemi (No 2) (CLR at p 451, per Jacobs J)." [6]

[7] Sections 648(2) and (4) of the Act prescribe that:

"(2) If the Commission decides not to hold a hearing, the Commission must, before making a decision:

(a) invite the employee and the employer concerned to provide further information that relates to whether the order should be made; and

(a) be given by notice in writing to the employee and the employer concerned; and

(b) specify the time by which the information referred to in the invitation is to be provided."

[8] I have taken account of the relevant information that the parties were invited to provide, including a statutory declaration from United Cinemas that:

(a) Mr Wilkie's employment terminated on 4 July 2007 - United Cinemas not having given him earlier notice of his termination of employment (submitting that he had resigned);

(c) At the time United Cinemas employed 50 employees and a small restaurant of Opera Investments Pty Ltd employed 17 employees.

[9] I am satisfied that at the relevant time when Mr Wilkie's employment terminated, United cinemas and any related bodies corporate (within the meaning of section 50 of the Corporations Act 2001) employed 100 or fewer employees.

[10] Therefore in accordance with paragraph 645(5)(e) of the Act I am obliged to make an order dismissing the application on the ground referred to in paragraph 643(1)(a), namely that the termination of his employment was harsh, unjust or unreasonable.

Printed by authority of the Commonwealth Government Printer

[1] In the knowledge that I may subsequently consider it desirable to hold a hearing (refer s.648(3) of the Act).

[2] Refer to the facsimile from United Cinemas dated 13 September 2007.

[3] Including s.3 (Principal object), s.108 (Commission to act quickly), s.109 (Commission to avoid technicalities and facilitate fair conduct of proceedings), s.110(1)(b) (The Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just), s.110(1)(c) (Commission must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms) and s.635 (Object of Subdivision A of Division 4 (Termination of employment) of Part 12).

[4] R. v Commonwealth Conciliation and Arbitration Commission ex p. Angliss Group (1969) 122 CLR 546 at 552.

[5] Kioa & Ors v Minister for Immigration and Ethnic Affairs & Anor [1985] HCA 81; (1985) 62 ALR 321 at 346 per Mason J.