Adrian Praljak v Services Australia - [2022] FWCFB 62

[2022] FWCFB 62

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Adrian Praljak
v

Services Australia

(C2022/1529)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BINET
commissioner williams

SYDNEY, 25 MAY 2022

Appeal against decision [2022] FWC 442 of Deputy President Lake at Brisbane on 28 February 2022 in matter number C2021/7902 – permission to appeal refused.

Mr Adrian Praljak (Mr Praljak) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision of Deputy President Lake (Deputy President) issued on 28 February 2022.[1] The Decision dealt with an application made pursuant to s.365 of the Act to deal with a general protections dispute in relation to the alleged termination of Mr Praljak’s employment by Services Australia (Application).

In the matter at first instance, Services Australia raised a jurisdictional objection to the Application asserting that Mr Praljak resigned from his employment with Services Australia and was not ‘dismissed’ for the purposes of s.365 of the Act.

This matter was listed for permission to appeal only. Directions were issued for the filing of material by the Appellant. The Appellant indicated that he consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.

For the reasons that follow permission to appeal is refused.

Decision Under Appeal

Mr Praljak commenced employment with Services Australia on 20 September 2021. As part of his onboarding he was asked to disclose any relevant medical or criminal history. He did not disclose that he was suffering from a number of medical conditions. He says that he did so because he was told that the information was not relevant to his employment by his employment agent. In the same onboarding documents he did not disclose that he had been convicted in May 2018 for stalking. He says that he did not disclose this information because:[2]

a.he believed he was wrongly convicted;
b.he is seeking to have the conviction quashed; and
c.he says the Judge who imposed the conviction told him that it would not be necessary to disclose the conviction if he was applying for employment.

Services Australia subsequently became aware of his medical conditions and conviction and summonsed him to a meeting on 1 November 2021 to:[3]

a.inform him that they intended to conduct an investigation into the matter; and
b.to provide him with an opportunity to respond to the proposal that he be suspended on full pay pending an investigation into the matter.

During the 1 November 2021 meeting, Mr Praljak indicated on several occasions that he wanted to resign with immediate effect. He was told that his verbal resignation would not be accepted and that he should go home, read the letter given to him and consider his position.[4]

Later the same day Services Australia confirmed in writing that it had not accepted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWCFB 62
Decision Date: 25 MAY 2022

CaseChat Overview and Summary

In Adrian Praljak v Services Australia, the appellant, Mr Adrian Praljak, sought to appeal a decision of the Fair Work Commission (FWC) that dismissed his application for unfair dismissal. The FWC had found that Mr Praljak was not dismissed from his employment by Services Australia but had resigned voluntarily. The appeal hinged on the permission to appeal, which requires satisfaction of a public interest test under s.604 of the Fair Work Act 2009. The primary issues before the court were whether the Deputy President made any legal or factual errors and whether the public interest warranted an appeal.

The court examined Mr Praljak's grounds of appeal, which included allegations of legal misapplication, factual errors, omission of his medical condition in the assessment, failure to secure legal representation, perceived bias, undisclosed conflicts of interest, and failure to assist in overturning a criminal conviction. The court found that Mr Praljak failed to substantiate any of his grounds. Legal principles were correctly applied, and factual findings were supported by evidence. The Deputy President had no obligation to secure legal representation or assist in criminal matters. The court also found no evidence of bias or undisclosed conflicts. The public interest test was not met as the decision did not manifest injustice, nor did it create a diversity of decisions requiring appellate guidance.

Consequently, the appeal was dismissed. The Vice President and Deputy President concluded that there was no arguable case of error and that the public interest did not warrant an appeal. The decision of the FWC stood affirmed, and permission to appeal was refused.

Orders