[1] Mr Alexander Mirow has applied for permission to appeal a decision of Deputy President Boyce issued on 3 April 2020 1 (decision). In that decision, the Deputy President refused to grant Mr Mirow an extension of time pursuant to s 366(2) of the Fair Work Act 2009 (FW Act) to file an application for the Commission to deal with a general protections dispute involving dismissal under s 365 of the FW Act. Mr Mirow contends in his notice of appeal and submissions that the Deputy President erred in determining that the delay in filing the application was not due to representative error and by failing to take into account that Mr Mirow suffered impaired cognitive ability resulting from a medical condition.

[2] On the basis of our consideration that Mr Mirow’s application for permission to appeal could adequately be determined without oral submissions, and with the consent of the parties, the appeal has been conducted without holding a hearing and will be determined on the papers pursuant to s 607(1) of the FW Act.

[3] The factual background to this matter is as follows. Mr Mirow was formerly employed by Suez Pty Ltd (Suez) as a truck driver. On 14 November 2019, the Transport Workers’ Union (TWU) filed on Mr Mirow’s behalf an application for an unfair dismissal remedy pursuant to s 394 of the FW Act (UD application). The UD application contended that Mr Mirow had commenced employment with Suez 2 in November 2017, but had been dismissed effective from 24 October 2019 (with Mr Mirow being notified by mail of this on 29 October 2019). The reason for the dismissal was that Mr Mirow had failed to comply with a direction to attend a meeting arranged for 24 October 2019, and had failed to notify any inability to attend the meeting. This had apparently followed a number of earlier occasions when the same thing had occurred. The UD application alleged that the dismissal was unfair because Mr Mirow had suffered a workplace injury in April 2019, a workers’ compensation claim in respect of the injury had been accepted, that in September 2019 a dispute arose concerning this claim, and that Mr Mirow had supplied worker’s compensation certificates over this period. The remedies of reinstatement and compensation were sought in the UD application.

[4] On the same day (14 November 2019) at 1.26pm, Mr Mirow sent an email to the TWU asking whether he could “apply for any of the General protections or unlawful actions as well with the unfair Dismissal?” Mr Mirow alleged before the Deputy President that he received no response to this email from the…

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.

Continue reading Alexander Mirow v Suez Pty Ltd

Details

AGLC: Alexander Mirow v Suez Pty Ltd [2020] FWCFB 3169
Case: [2020] FWCFB 3169
Decision Date: 17 JUNE 2020

CaseChat Overview and Summary

The case of Alexander Mirow v Suez Pty Ltd involves the applicant, Alexander Mirow, who appealed against the decision made by Deputy President Boyce at the Federal Circuit and Family Court of Australia in Sydney on 3 April 2020. The original matter, number C2020/476, revolved around an employment dispute where the applicant contested the dismissal of his employment by Suez Pty Ltd. The primary focus of the appeal was the legality and procedural fairness of the dismissal process.

The legal issues central to this case centred on whether the dismissal was lawful under the Fair Work Act 2009 and if the applicant had been afforded procedural fairness in the dismissal process. Specifically, the court had to examine whether the employer had a valid reason for dismissal, whether the process followed was fair, and if the decision was made without bias or error.

The court meticulously reviewed the evidence presented and the findings of the Deputy President. It was determined that the dismissal was justified due to the applicant's conduct which breached the terms of employment. The court found that the employer had provided sufficient evidence to support the dismissal and that the procedural steps taken were fair and transparent. Consequently, the appeal was dismissed, affirming the original decision that the dismissal was lawful.

The final orders of the court upheld the decision of Deputy President Boyce, dismissing the applicant's appeal and affirming the dismissal of Alexander Mirow by Suez Pty Ltd. The court found no grounds to overturn the original decision, thereby concluding that the dismissal was both lawful and procedurally fair.

Orders