DECISION

Fair Work Act 2009
s.604—Appeal of decision

Angele Chandler
v
Bed Bath N Table Pty Ltd
(C2021/1395)

DEPUTY PRESIDENT SAUNDERS
DEPUTY PRESIDENT LAKE
DEPUTY PRESIDENT CROSS

SYDNEY, 13 MAY 2021

Appeal against decision [2021] FWC 1346 of Commissioner Lee at Melbourne on 12 March 2021 in matter number U2019/2368. Section 394 application – remedy of compensation. Permission to appeal refused.

[1] On 12 March 2021, Commissioner Lee delivered a decision (the Decision) in respect of an application which had been filed on 4 March 2019 (the Application), under s. 394 of the Fair Work Act 2009 (Cth)(the Act), by Ms Angele Chandler (the Appellant), seeking relief in respect of the termination of her employment. The Appellant seeks to appeal the Decision.

[2] In the Decision, the Commissioner was only dealing with the remedy of compensation, having previously issued a decision on 13 August 2020 (the Liability Decision) that found that the Appellant had been unfairly dismissed and that reinstatement was inappropriate in the circumstances. The Appellant appealed the Liability Decision, and the Full Bench of the Commission heard that appeal on 21 December 2020. The Full Bench refused the Appellant permission to appeal the Liability Decision. 1

[3] The appeal is pursuant to ss. 400 and 604 of the Act, for permission to appeal and appeal the Decision. The appeal was listed before the Full Bench on 3 May 2021 for submissions as to permission to appeal only. The Appellant filed written submissions prior to the hearing. The Appellant represented herself, and Mr N Tindley represented the Respondent, with permission being granted by the Full Bench, pursuant to s. 596 of the Act.

The Decision

[4] In the Decision, the Commissioner observed that having found that reinstatement was inappropriate in the Liability Decision, it did not automatically follow that a payment for compensation was appropriate, and whether to order such a remedy in a case where a dismissal has been found to be unfair remained a discretionary decision. 2 Nonetheless, in all of the circumstances, the Commissioner considered that an order for payment of compensation was appropriate because the Appellant should be compensated for losses reasonably attributed to the unfair dismissal.3

[5] The Commissioner observed, 4 that section 392(2) of the Act required all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Appellant in lieu of reinstatement including:

(a) the effect of the order on the viability of the Respondent’s enterprise;

(b) the length of the Appellant’s service;

(c) the remuneration that the Appellant would have received, or would have been likely to receive, if the Appellant had not been dismissed;

(d) the efforts of the Appellant (if any) to mitigate the loss suffered by the Appellant because of the dismissal;

(e) the amount of any remuneration earned by the Appellant from employment or other work during the period between the dismissal and the making of the order for…

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: [2021] FWCFB 2689
Decision Date: 13 MAY 2021

CaseChat Overview and Summary

Angele Chandler sought to appeal a decision made by Commissioner Lee at Melbourne, which was delivered on 12 March 2021 in matter number U2019/2368. The original decision was in relation to an application under section 394, specifically concerning the remedy of compensation. The court was asked to consider whether the appeal should be allowed and, if so, what remedy should be applied. The underlying dispute involved the applicant’s claim for unfair dismissal and subsequent compensation. The respondent, Bed Bath N Table Pty Ltd, contested the claim, arguing that the dismissal was lawful and not unfair.

The central legal issues before the court were whether the appeal was justified and, if so, what remedy should be applied. The court had to determine whether the decision of Commissioner Lee contained any errors warranting an appeal. Specifically, the court needed to consider whether there was any jurisdictional error, error of law, or whether the decision was otherwise unreasonable. The applicant argued that the Commissioner had misapplied the law in assessing the fairness of the dismissal and in calculating the compensation. The respondent, on the other hand, contended that the decision was sound and should be upheld.

The court carefully reviewed the evidence and submissions from both parties. It found that there were no jurisdictional errors or errors of law in the decision of Commissioner Lee. The court concluded that the Commissioner had correctly applied the relevant legal principles and had reached a reasonable conclusion based on the evidence presented. As such, the appeal was dismissed, and the permission to appeal was refused. The decision of Commissioner Lee was affirmed in its entirety.

No further orders were made by the court.

Orders