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VIC Unfair Dismissal - Can Respondent Appeal for the Final Hearing Decision?

Discussion in 'Employment Law Forum' started by kimsland, 18 July 2017.

  1. kimsland

    kimsland Well-Known Member

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    Hi,

    I have a legal question regarding my ongoing matter.

    I won my Order at Fair Work Australia through Unfair Dismissal :) The Respondent (employer) did not pay the Order :(

    Now the Ombudsman became the applicant in a new matter at the Federal Circuit Court, for 'breach of Order'. The Hearing was finally set, and stated through previous Direction Orders, that any Submissions must now (past due) be submitted before the Hearing takes place.

    The Respondent still has not supplied any Submissions, now past the due date. Subsequently this Hearing will be an 'undefended' court hearing, by the Respondent.

    My question.

    The Respondent is set to lose the Hearing and again be Ordered to pay (Obviously they will also receive infractions). Can the Respondent just 'Appeal' (without reason) the final decision, forcing the matter to be delayed again?

    Or, does the Respondent need to state their reason for appeal and have that approved (or denied) first?

    To be clearer, I suspect the Respondent's only reasoning (over these last 3 years!) is to delay the inevitable outcome. And I am concerned that an 'Appeal' will just add yet another 3 months on the end of all this. If I have confused you in this please let me know, as I am trying to be as clear as I can without writing a book!

    And this matter of mine is never ending.

    I do have other questions about what happens if he doesn't pay... I have read a lot online but I cannot see mandatory jail time or who knows what happens after an Order is not paid (again).
     
  2. kimsland

    kimsland Well-Known Member

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    Ok, I think I may have found my answer myself.


    Federal Court Rules 2011
    Federal Court Rules 2011
    Compilation date: 10 November 2016


    36.72 Notice of objection to competency of appeal

    (1) A respondent who objects to the competency of an appeal must, within 14 days after being served with a notice of appeal, file a notice of objection to competency:

    (a) in accordance with Form 125; and

    (b) that, briefly but specifically, states the grounds of the objection.

    (2) The appellant carries the burden of establishing the competency of an appeal.

    (3) A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the appeal.

    (4) If a respondent has not filed a notice under subrule (1), and the appeal is dismissed by the Court as not competent, the respondent is not entitled to any costs of the appeal.

    (5) If the Court decides that an appeal is not competent, the appeal is dismissed.


    36.74 Application to dismiss appeal

    (1) A respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant to do any of the following:

    (a) comply with a direction of the Court;

    (b) comply with these Rules;

    (c) attend a hearing relating to the appeal;

    (d) prosecute the appeal.



    Ok, so it seems anyone can appeal for any reason whatsoever thus delaying the outcome, but the Respondent can then apply to dismiss the Appeal before it even goes to court (and prosecute too). So I can see a wasted time here of 14 days to Appeal by the Appellant, and then another 14 days to apply to dismiss by the Respondent; and then likely another 28 days for the court to agree with it (inevitably). So maybe up to 2 months wasted.

    Next, the court Sheriff seems to enforce the Order, but this seems to still be ambiguous of what they can do. I highly suspect a court action would be required to actually prosecute in any fashion, so I could see say 3 months for this.

    So that would all take another 6 months!
    Anyone else agree the court system is ridiculously slow for things that could easily be handled immediately!
     
  3. Rod

    Rod Well-Known Member

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    Court system is deliberately slow. Allows time for material to be prepared and people to appeal, and be adequately notified. Frustrating at times, but not overly slow.

    BTW, make sure you apply for interest as from date of first order, and all your additional costs.
     
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  4. kimsland

    kimsland Well-Known Member

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    Thanks Rod, I have been informed there is also a submission regarding interest on top.
    But I must say at this point I have become much less trusting that any financial compensation (well the Order) will ever come to me.

    By the way, do you happen to know if court infractions are required to be paid after or before any Order amount? Because it will be strange that he will have 150K of infractions and then my standard amount of Order (under 20K).

    This matter seems to be a unique matter, and this goes along with everything else in my life. I already have my own hypotheticals of what he will eventually do, and none include paying me :( At this stage its just about the case itself, anything else is now unexpected.
     
  5. Rod

    Rod Well-Known Member

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    Sorry, don't know if there is any particular order to the repayment of judgements and fines. Suspect there isn't but not confident.

    Has the court ordered $150K in penalties, and if so who gets these, the gov't or you? Under employment law many penalties can accrue to the person filing the claim.

    If the court has not ordered the $150K in penalties and this is only the 'theoretical' amount due to multiple occurrences of the same offence the court will normally discount them to a more 'reasonable figure.
     
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