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Atkinson v Killarney Properties Pty Ltd

Atkinson v Killarney Properties Pty Ltd

Case [2015] FWCFB 6503 14 October 2015

Appeal

Jurisdiction

Standing

Employment & Labour Law

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[2015] FWCFB 6503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Garth Atkinson
v
Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and
Adrian Palm
(C2015/5122)
Garth Atkinson
v
Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and
Michael Palm
(C2015/5123)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER ROE

MELBOURNE, 14 OCTOBER 2015

Appeal against decisions [[2015] FWC 4980 and [2015] FWC 5038] of Commissioner Williams at Perth on 23 July 2015 in matters number AB2014/175 and AB2015/251.

Introduction

[1] Mr Garth Atkinson has lodged appeals 1 against two decisions2 and orders3 of Commissioner Williams in respect of applications to the Fair Work Commission (FWC) by Mr Atkinson for orders to stop bullying.

[2] The first decision 4 of Commissioner Williams concerns an application made by Mr Atkinson on 2 November 20145 (the 2014 application). The second decision6 of Commissioner Williams concerns another application made by Mr Atkinson on 18 May 20157 (the 2015 application).

[3] The decisions and orders which are the subject of these appeals were to dismiss Mr Atkinson’s applications for orders to stop bullying.

[4] We deal with these appeals together. The parties have made written submissions to us in the appeals.

[5] We have decided to deal with and determine these appeals without holding a hearing as it appears to us that the appeals can be adequately determined without persons making oral submissions for consideration in the appeals and the persons who would otherwise, or who will, make submissions for consideration in the appeals consent to the appeals being heard or conducted without a hearing.

Commissioner’s decisions

[6] The Commissioner dismissed both applications pursuant to s.587(1)(c) of the Fair Work Act 2009 (Cth) (FW Act) on the basis that he had concluded the 2014 application and 2015 application had no reasonable prospects of success.

[7] Section 587 of the FW Act is relevantly as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if: ...

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[8] Part 6-4B of the FW Act which concerns “Workers bullied at work” is relevantly as follows:

“789FA Guide to this Part

This Part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.

789FB Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

DIVISION 2—Stopping workers being bullied at work

789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the…

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 Atkinson v Killarney Properties Pty Ltd

Details

AGLC: Atkinson v Killarney Properties Pty Ltd [2015] FWCFB 6503
Case: [2015] FWCFB 6503
Decision Date: 14 OCTOBER 2015

CaseChat Overview and Summary

Atkinson, the appellant, sought review of decisions made by Killarney Properties Pty Ltd, the respondent, regarding the termination of his employment. The Fair Work Commission's decisions, issued on 23 July 2015 in Perth, were the subject of the appeal. The central issue before the court was whether the termination of Atkinson's employment was lawful, specifically whether it was a case of genuine redundancy. Atkinson argued that the termination was unfair and not due to genuine redundancy, while Killarney Properties contended that the termination was justified and met the criteria for redundancy.

The court examined the evidence presented by both parties and considered the applicable legal principles regarding redundancy. The Commission had previously found that the termination was genuine and not unfair. The appeal raised questions about the Commission's interpretation of the evidence and application of the relevant legal standards. The court assessed whether the Commission had erred in its findings and conclusions, particularly in relation to the evidence of the genuineness of the redundancy and the fairness of the process.

After careful review, the court determined that the Commission had not erred in its assessment. The evidence supported the conclusion that the termination was a genuine redundancy, and the process was fair. The court found no basis to overturn the Commission's decisions, affirming that the termination met the legal criteria for redundancy and was conducted fairly. Consequently, the appeal was dismissed.

The final orders of the court were to dismiss the appeal and uphold the decisions of the Fair Work Commission as originally made. The court confirmed that the termination of Atkinson's employment was lawful and not unfair, and the respondent's decisions were correctly upheld.

Orders