Dougherty v CBO Pty Ltd [2013] QCATA 297

CITATION: Dougherty v CBO Pty Ltd [2013] QCATA 297 PARTIES: Simone Wendy Dougherty (Applicant) V CBO Pty Ltd (Respondent) APPLICATION NUMBER: APL340 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe OAM, Senior Member DELIVERED ON: 29 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where claim for payment of bonus under employment contract – where claim dismissed for want of jurisdiction – whether tribunal has jurisdiction Fair Work Act 2009 (Cth) ss 14, 26, 548 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Ervin v Smipat Pty Ltd t/as L J Hooker Burleigh Heads [2013] QCATA 153 -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] CBO Pty Ltd employed Ms Dougherty under a written contract dated 17 December 2010. The contract provided for a salary plus a bonus of $50,000 and commission. CBO terminated Ms Dougherty’s employment on 20 August 2012. It did not pay her any of the bonus on termination. [2] Ms Dougherty says that the bonus was not tied to performance and she should have been paid a pro rata bonus on termination. She filed a claim in the minor civil disputes jurisdiction of the tribunal. An Adjudicator dismissed her claim because the tribunal lacked jurisdiction. [3] Ms Dougherty wants to appeal that decision. She says the tribunal does have jurisdiction. [4] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?4 [5] Ms Dougherty points out that s 26 of the Fair Work Act 2009 (Cth) excludes all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employer. Section 14 defines “national system employer” to include a constitutional corporation. CBO, being a company incorporated under the Corporations Act, is a national systems employer. It follows, therefore, that Ms Dougherty is a national systems employee. The employment contract does fall within the ambit of the Fair Work Act. [6] Ms Dougherty accepts that the tribunal is not a Court for the purposes of the Fair Work Act but she argues that s 26 does not exclude her claim because it does not fall within any of the definitions listed in that section. [7] As the President pointed out in Ervin v Smipat Pty Ltd t/as L J Hooker Burleigh Heads5 the Fair Work Act is to be interpreted in a way which will best achieve its purposes. 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 5 [2013] QCATA 153 at [25]. -- 2 of 3 -- 3 [8] The Act does contemplate a small claims procedure6 but, even then, the procedure is available only in a “court”. It would have been a simple matter for the Commonwealth to extend the small claims power to tribunals but it did not. The inescapable conclusion is that it was not intended that tribunals, generally, have jurisdiction in employment claims in situations where the parties are within the national system constructed by the Fair Work Act. [9] The learned Adjudicator was not in error. He had no jurisdiction. Ms Dougherty is not without a remedy. She may file a claim in the Magistrates Court and then call upon the small claims procedure. [10] There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. 6 s 548. -- 3 of 3 --