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Appellant v Respondent

Appellant v Respondent

Case [2015] FWCFB 1972 22 April 2015

Appeal

Breach of Contract

Unconscionable Conduct

Employment & Labour Law

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[2015] FWCFB 1972

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Appellant
v
Respondent
(C2014/7706)

SENIOR DEPUTY PRESIDENT HARRISON
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER CAMBRIDGE

SYDNEY, 22 APRIL 2015

Appeal against decision [2014] FWC 6285 of Senior Deputy President Drake at Sydney in AB2014/1136 - application for order to stop bullying dismissed - appeal alleging errors in decision - complaint about representation of respondent - permission to appeal refused.

[1] This decision concerns an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision dismissing the appellant’s application for an order to stop bullying. Senior Deputy President Drake found, at first instance, that the appellant had not been bullied at work. Accordingly, she found there was no power to make the orders sought and the application was dismissed.

The Act - relevant provisions

[2] An appeal such as this which is made under s.604 of the Act is an appeal by way of rehearing with the Fair Work Commission’s (the Commission’s) powers only being exercisable if there is error on the part of the primary decision-maker. There is no right to appeal; an appeal may only be made with the permission of the Full Bench.

[3] Section 604(2) requires the Full Bench to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. The public interest is not satisfied simply by the identification of error, or a preference for a different result. 1 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 2

[4] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted as justifying the grant of permission to appeal (or “leave” to appeal, as it was previously described) include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. It will rarely be appropriate to grant permission to appeal unless an arguable case of appellable error is demonstrated. This is so because an appeal cannot succeed in the absence of appellable error. 3

[5] The appellant’s originating application was made under s.789FC of the Act for an order to stop bullying. The relevant provisions concerning such an application are as follows:

“789FC Application for an FWC order to stop…

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 Appellant v Respondent

Details

AGLC: Appellant v Respondent [2015] FWCFB 1972
Case: [2015] FWCFB 1972
Decision Date: 22 APRIL 2015

CaseChat Overview and Summary

The appellant appealed against a decision of the Federal Circuit Court, handed down by Senior Deputy President Drake. The original matter involved a complaint of workplace bullying against the respondent. The appellant sought an order to stop the bullying, which was dismissed. The appeal was based on alleged errors in the decision-making process, as well as a complaint about the respondent's representation. The court considered the grounds for appeal and the merits of the arguments presented by both parties.

The central legal issues that the court had to address were whether there were any errors in the decision-making process and if the appellant's complaint about the respondent's representation was valid. The court examined the evidence presented in the original matter and assessed whether the decision was made in accordance with the law. Additionally, the court assessed the appellant's complaint about the respondent's representation to determine if it had any impact on the outcome of the case.

The court found that there were no errors in the decision-making process and that the complaint about the respondent's representation did not affect the outcome. The court held that the original decision was well-reasoned and based on the evidence presented. Furthermore, the court found that the appellant's complaint about the respondent's representation did not amount to a valid ground for appeal. As a result, the appeal was dismissed, and permission to appeal was refused.

The court did not make any specific orders in relation to the appeal. The decision of the Federal Circuit Court, handed down by Senior Deputy President Drake, was upheld, and the dismissal of the appellant's application for an order to stop bullying was maintained.

Orders