SA Employment Tribunal underpayment appeal dismissed


Appeal deemed destined to fail even if correctly lodged with Federal Court

SA Employment Tribunal underpayment appeal dismissed
The original penalty amounted to $23,000

 

A transport operator's attempt to appeal a South Australian Employment Tribunal (SAET) underpayment finding has failed on jurisdictional grounds.

The SAET deputy president, Magistrate Stephen Lieschke, was found not to have heard the matter ‘in the exercise of his office as a magistrate’ and was therefore not exercising summary jurisdiction – meaning the appeal should have been pursued in the Federal Court.

On March 25, 2020, deputy president Lieschke made findings that Dasmesh Truck Transport Pty Ltd and sole director Amandeep Singh had underpaid employee Paul Beilby under the Road Transport and Distribution Award and the Fair Work Act 2009.

Beilby was underpaid $3,055 in wages over a six-week period for milk distribution work, was not reimbursed fuel expenses, was not paid any superannuation, and was not provided any pay slips, the Award or a Fair Work information statement.


How a lack of employment contract worked against a driver's FWC case, here


In total, Dasmesh was ordered to pay Beilby $15,000 and Singh ordered to pay $8,000.

Singh and Dasmesh attempted to appeal on May 8, later than the one-month window for such course of action.

In dispute, however, was SAET’s jurisdiction to hear the appeal, or whether the appeal should have been filed in the Federal Court.

SAET president Justice Steven Dolphin notes an appeal would lie to the Federal Court from an eligible state or territory court exercising jurisdiction under the Fair Work Act but, if that state or territory court was exercising ‘summary jurisdiction’, the appeal would lie to another state or territory court within the relevant judicial hierarchy.

"The Deputy President who heard and determined Mr Beilby’s application obtained appointment to that office by virtue of being a magistrate," the ruling finds.

"That being so, and as explained by the Full Federal Court in Shahin v Mathew, such an appointment means that that judicial officer is no longer a magistrate simpliciter, but has the new office of Deputy President with the additional status and functions that office provides.

"That being so, the first limb of the definition of "court of summary jurisdiction" from Acts Interpretation Act 1901 cannot be satisfied in this case."

The result of that is "any appeal from SAET lies to the Federal Court and, accordingly, the appeal proceedings are beyond the jurisdiction of SAET and as such should be rejected".

Dolphin notes that, even if SAET did have jurisdiction, the appeal proceedings should be dismissed.

He deems the appeal as "lacking in substance", with Singh initially lodging his appeal out of time, providing no satisfactory explanation for that delay, nor later delays in responding to the tribunal’s attempts for correspondence.

Though not outlined, Singh’s Outline of Argument was also deemed "flimsy at best", and seen as "designed to delay or avoid payments being made" to Beilby.

"Throughout these appeal proceedings Mr Singh has failed to identify where any error of law may have been made at first instance, but has instead continued with factual complaints that he ought to have raised at first instance."

 

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