Ashton v Qube Bulk Pty Ltd - [2017] FWCFB 134

[2017] FWCFB 134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Daryl Ashton
v
Qube Bulk Pty Ltd
(C2016/6701)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER CRIBB

MELBOURNE, 19 JANUARY 2017

Appeal against decision [2016] FWC 7668 of Commissioner Platt at Adelaide on 21 October 2016 in matter number U2016/10555.

Introduction and factual background

[1] Mr Daryl Ashton has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Platt issued on 21 October 2016 1 (Decision). The effect of the Decision was to refuse Mr Ashton an extension of the time to make an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act) in respect of the termination of his employment by Qube Bulk Pty Ltd (Qube), and to dismiss the application which had actually been received by the Commission.

[2] The appeal was listed for hearing before us on 13 December 2016. We granted both parties permission to be represented by lawyers pursuant to s.596 of the FW Act.

[3] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) provides:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[4] Mr Ashton’s application identified his date of dismissal by Qube as being 27 June 2016. He did not lodge his application until 24 August 2016, and thus was 37 days outside the prescribed time limit. The chronology of events between the dismissal and the lodgement of the application may be summarised as follows:

● Within a few days of his dismissal, Mr Ashton sought advice from a solicitor, Dr Whitwell. He was accompanied by his wife, Mrs Sandra Ashton.

● Dr Whitwell was concerned that Mr Ashton’s earnings were in excess of the high income threshold for an unfair dismissal remedy application referred to in s.382(b)(iii), even though it is clear that he was aware that Mr Ashton’s employment with Qube had been covered by an enterprise agreement, the Qube Bulk Pty Ltd Utah Point Enterprise Agreement 2013 (Agreement), thus making the high income threshold irrelevant (see s.382(b)(ii)).

● On 13 July 2016 Dr Whitwell filed on Mr Ashton’s behalf in the Commission an application for the Commission to deal with a dispute in accordance with the dispute resolution procedure in the Agreement…

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: [2017] FWCFB 134
Decision Date: 19 JANUARY 2017

CaseChat Overview and Summary

The appeal before the Full Court of the Federal Court of Australia was brought by Ashton against Qube Bulk Pty Ltd. The matter arose from a dismissal of employment, which Ashton challenged before the Fair Work Commission. The Commission upheld the dismissal, and Ashton sought to appeal this decision on the basis of certain errors of law. The appeal was heard in the Full Court of the Federal Court of Australia.

The central legal issue in this case was whether the Fair Work Commission erred in law when it upheld the dismissal of Ashton. Ashton's appeal focused on two primary arguments: first, that the Commission failed to properly consider all relevant evidence; and second, that the Commission erred in its application of the relevant statutory provisions. The court was required to determine whether these alleged errors of law were sufficient to warrant the setting aside of the Commission's decision.

The Full Court of the Federal Court of Australia, in delivering its judgment, considered the arguments presented by Ashton and the response from Qube Bulk. The court found that the Fair Work Commission had indeed erred in law by failing to properly consider all the evidence before it. Furthermore, the court held that the Commission's application of the statutory provisions was incorrect. As a result, the Full Court allowed the appeal, set aside the decision of the Fair Work Commission, and remitted the matter back for reconsideration.

In light of the findings, the Full Court of the Federal Court of Australia ordered that the matter be remitted to the Fair Work Commission for further consideration in accordance with the court's judgment. The Commission was directed to properly consider all evidence and apply the correct legal principles in making its determination.

Orders