and Otv International v Thibaut De Crisnay
[2015] FWCFB 7742
•18 NOVEMBER 2015
| [2015] FWCFB 7742 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Thibaut De Crisnay
(C2015/6208)
VICE PRESIDENT HATCHER | SYDNEY, 18 NOVEMBER 2015 |
Appeal against decision [2015] FWC 6573 of Deputy President Lawrence at Sydney on 23 September 2015 in matter number C2015/3384.
[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 5 November 2015.
[2] The Full Bench is in a position to deliver its decision in relation to this appeal. The background to the appeal is as follows. On 21 July 2015, the respondent to the appeal, Mr De Crisnay, filed an application under s.365 of the Fair Work Act 2009 (FW Act) notifying the Fair Work Commission of a general protections dismissal dispute. That application nominated the first to the third appellants as parties to the dispute.
[3] The matter was the subject of a conciliation conference before Lawrence DP on 24 August 2015 and during the course of that conference, apparently, an issue arose as to whether any of the first to third appellants were the true employer of the respondent to the appeal. That is not suggesting that issue had not arisen beforehand, a matter about which we express no view.
[4] After the conference had ended the respondent made an application to the Deputy President to amend the dispute application to add the fourth appellant, OTV International as a party to the dispute. On 23 September 2015, the Deputy President made a decision 1 and order2 in which he acceded to that request and added the fourth appellant OTV International as a party to the dispute.
[5] The respondent to the appeal accepts that it is strongly arguable that the fourth appellant is the true employer of the respondent.
[6] The appellants appeal the decision and order to which we have just referred on a number of bases, the primary one of which is that the appellants, in particular the fourth appellant, were not given an opportunity to be heard by the Deputy President as to the amendment of the dispute application before the decision and order were made and thus were denied procedural fairness.
[7] The respondent to the appeal quite properly concedes that a denial of procedural fairness occurred in the way alleged and it is agreed between the parties on that basis that an error occurred which justifies the grant of permission to appeal, the upholding of the appeal and the quashing of the decision and order.
[8] Where the parties differ from that point is as to the course then to be taken with respect to the rehearing of the respondent's application to amend the dispute notification. The appellants have expressed a preference that the rehearing occur before this Full Bench on the basis of the material currently before it, including some evidence filed by the appellants pursuant to the directions issued by the Vice President presiding, and accordingly be dismissed on the basis of that evidence. The respondent submits that the matter should be remitted to a single member for rehearing.
[9] The directions that were made in respect of the appeal made reference to the filing of evidence for which leave would be sought to be adduced in the appeal hearing, but those directions were made for the purpose of hearing evidence going to whether a denial of procedural fairness occurred, not as to the rehearing of the matter. We do not consider that the respondent to the appeal could reasonably have understood the directions to mean that they call for any evidence on a rehearing of the matter.
[10] More importantly, having heard the submissions of the parties legal representatives, it has become quite apparent that in any rehearing of the matter there would be at least a significant degree of contested evidence and probably cross-examination of witnesses. In those circumstances, we consider the appropriate course is to remit the matter for rehearing before a single member of the Commission, rather than rehear the amendment application ourselves.
[11] Therefore for those reasons we order as follows:
(1) Permission to appeal is granted;
(2) The appeal is upheld;
(3) The decision and order of Lawrence DP the subject of this appeal are quashed; and
(4) The respondent's application to amend his dispute application under s.365 is remitted to Johns C for rehearing, and also remitted to him to take such further steps in the matter as may be necessary.
VICE PRESIDENT
Appearances:
N. Furlan with B. Maynard solicitors for the Appellants.
I. Taylor SC with A. Martin counsel for the Respondent.
Hearing details:
2015.
Sydney:
5 November.
1 [2015] FWC 6573
2 PR572154
Printed by authority of the Commonwealth Government Printer
<Price code A, PR573823>
1
1
0