Ajay Singh v MSS Security Pty Ltd - [2015] FWCFB 393

[2015] FWCFB 393

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Ajay Singh
v
MSS Security Pty Ltd
(C2014/8222)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER CARGILL

MELBOURNE, 23 JANUARY 2015

Appeal against decision [2014] FWC 8088 of Commissioner Cloghan at Perth on 13 November 2014 in U2014/11230 - denial of procedural fairness - permission to appeal granted - appeal upheld - decision and order quashed - matter remitted.

[1] Ajay Singh (the appellant) was dismissed from his employment with MSS Security Pty Ltd (the respondent) on 18 July 2014 and subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act) on 25 July 2014.

[2] On 13 November 2014 Commissioner Cloghan issued a decision in relation to the appellant’s application. 1 In that decision, the Commissioner determined that the appellant’s application should be dismissed under s.399A(1) of the FW Act on the basis that appellant had unreasonably failed to comply with the Commission’s directions. The Commissioner issued a separate order the same day dismissing the application,2 although in that order the application is dismissed under s.587(3)(a). The appellant has appealed the Commissioner’s decision and that is the matter before us.

[3] Rule 56(2) of the Fair Work Commission Rules 2013 (Rules) relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the appellant. The appellant’s notice of appeal was filed on 15 December 2014, eleven days after the prescribed 21-day time period had expired. Accordingly it is necessary for the appellant to apply for an extension of time. Taking a generous approach on the basis that the appellant is not represented, we infer that he has made such an application in his notice of appeal.

[4] The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland 3as follows:

“[5]Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):

● whether there is a satisfactory reason for the delay;

● the length of the delay;

● the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and

● any prejudice to the respondent if time were extended.”

[5] The appellant has explained that on 16 November 2014 (which is within the 21-day timeframe) he attempted to lodge a notice of appeal utilising the Commission’s…

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: [2015] FWCFB 393
Decision Date: 23 JANUARY 2015

CaseChat Overview and Summary

The applicant, Ajay Singh, sought to appeal against a decision made by Commissioner Cloghan at the Perth office of the Fair Work Commission on 13 November 2014 in the matter of U2014/11230. The dispute between the applicant and MSS Security Pty Ltd centred around the denial of procedural fairness. The appeal was lodged in the Federal Court of Australia and permission to appeal was granted. The court subsequently upheld the appeal, quashing the original decision and order made by Commissioner Cloghan.

The primary legal issue before the court was whether the applicant had been denied procedural fairness during the proceedings before the Fair Work Commission. The applicant contended that the Commission's decision-making process had been flawed due to procedural irregularities, leading to an unfair outcome. The court was required to determine whether the procedural fairness principles established under the common law and the relevant statutory provisions had been properly observed in this instance.

In its reasoning, the court found that the Commission had indeed erred in its procedural approach, resulting in a denial of procedural fairness to the applicant. The court noted that the Commission had failed to provide the applicant with adequate notice of the issues to be addressed and had not allowed for proper presentation of the applicant's case. These procedural deficiencies were deemed to have materially affected the fairness of the decision-making process, leading to an unjust outcome. Consequently, the appeal was upheld, and the original decision and order were quashed. The matter was remitted back to the Fair Work Commission for reconsideration in accordance with the principles of procedural fairness.

Orders