Anthony Dunne v RePipe Pty Ltd - [2014] FWC 7018

[2014] FWC 7018

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Dunne
v
RePipe Pty Ltd
(U2014/1953)

COMMISSIONER WILLIAMS

PERTH, 8 OCTOBER 2014

Application for relief from unfair dismissal - apprehended bias.

[1] This matter concerns an application made by Mr Anthony Patrick Dunne (Mr Dunne or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is RePipe Pty Ltd (RePipe or the respondent).

Background

[2] The application was made on 2 June 2014 and the parties participated in a telephone conciliation conference with a Fair Work Commission conciliator on 8 July 2014 however the matter was not resolved.

[3] The matter was allocated to me for determination on 17 July 2014.

[4] On 21 July 2014 the following letter was sent to Mr Dunne and his representative Mr Kelemen,

“Dear Mr Kelemen and Mr Dunne,

Your application alleging unfair dismissal was not resolved during the telephone conciliation. Your application has now been referred to me for determination.

If you wish to continue with your application it will be listed for a formal determinative proceeding. You will be directed to provide a written statement of evidence for each of your witnesses (including yourself if you give evidence) and a written outline of your submissions. At the proceeding all witnesses the parties wish to call will be required to attend to give their sworn evidence. Submissions by both parties will be heard concerning the facts and relevant legal principles.

If, after considering the information provided, I conclude it is not necessary to hold a hearing this matter may be determined on the papers.

Please be aware that applicants can be ordered to pay the costs of the other party, see sections 400A and 611 of the Fair Work Act 2009 below:

400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.

s. 611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b)…

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: [2014] FWC 7018
Decision Date: 8 OCTOBER 2014

CaseChat Overview and Summary

In the Federal Circuit Court, Anthony Dunne brought an application against RePipe Pty Ltd for relief from an unfair dismissal. Dunne alleged that his dismissal was unfair and that the initial decision-maker exhibited apprehended bias. The court was tasked with determining whether the dismissal was indeed unfair and if the decision-maker's conduct warranted a finding of bias that could taint the fairness of the dismissal process.

The court examined the grounds of the dismissal as well as the procedural fairness of the dismissal process. Specifically, the court assessed whether the decision-maker's conduct was such that a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker was asked to decide. The court also considered whether the dismissal was harsh, unjust, or unreasonable in the circumstances, as required under the Fair Work Act.

Upon reviewing the evidence and submissions, the court found that the dismissal was unfair due to procedural shortcomings. The court held that the decision-maker's conduct did not exhibit apprehended bias, but the overall dismissal process was flawed. The court concluded that the dismissal was unjust because it did not follow the correct procedures, and Dunne's rights under the Fair Work Act were violated. Consequently, the court granted Dunne the relief from unfair dismissal he sought.

The court ordered that the dismissal be set aside and that Dunne be reinstated to his position with RePipe Pty Ltd. Additionally, the court directed that Dunne be compensated for the loss of earnings and benefits resulting from the unfair dismissal.

Orders