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Australian Ceramics Engineering Pty Ltd v Ryan Archer

Australian Ceramics Engineering Pty Ltd v Ryan Archer

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Case Copied 27 February 2023 48 min read

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[2023] FWC 115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.603 - Application to vary or revoke a FWC decision

Australian Ceramics Engineering Pty Ltd
v

Ryan Archer

(C2022/8177)

DEPUTY PRESIDENT BEAUMONT

PERTH, 27 FEBRUARY 2023

Application to revoke decision [2022] FWC 3029 of Commissioner Williams at Perth on 18 November 2022

On 9 December 2022, Australian Ceramics Engineering Pty Ltd (ACE) made an application pursuant to s 603(2)(b)(i) of the Fair Work Act 2009 (Cth) (the Act) to revoke a decision of this Commission in Archer v Australian Ceramics Engineering Pty Ltd (the Decision).[1] In the Decision, Commissioner Williams concluded that Mr Archer, the respondent in this application, had been unfairly dismissed within the meaning of s 386 of the Act and consequently ordered that ACE pay compensation to Mr Archer in the amount of $34,200.00 before tax (the Order).[2] On 23 December 2022, I ordered a stay of the Decision and the Order, pending the outcome of this revocation application.[3]

Section 603(1) of the Act allows the Commission to vary or revoke a decision of the Commission that is made under the Act. It is generally accepted that the power in s 603(1) should not be narrowly confined.[4] Whilst the Commission can of its own initiative revoke a decision, a person who is affected by a decision can apply for its revocation. In this case, it is uncontroversial that ACE has standing to make such application.

Briefly stated, ACE seeks the revocation of the Decision on the basis that it was premised on incomplete evidence, ACE having not presented its case at first instance. ACE attributes this failure on having been misled by a temporary Human Resources (HR) contractor, a Mr Roeland Willeboordse. I am not so convinced. The evidence shows that at all material times ACE possessed knowledge that the unfair dismissal application was on foot. Not only did Mr Willeboordse have knowledge of Mr Archer’s application, Mr Paul Devine, Managing Director of ACE, and Ms Desire Collier, the incumbent HR Manager, were informed of Mr Archer’s application.

Now once Mr Willeboordse departed the business, ACE might have operated on the assumption that Mr Archer’s application had fallen away, the assumption arising, in part, from Mr Willeboordse purportedly having informed Ms Collier that he considered the matter was likely to fall away due to the jurisdictional objection he had raised (based on the high income threshold).[5] However, a likelihood of ‘falling away’ does not constitute an outcome such as a discontinuance, dismissal, or determination.

Mr Devine had himself authorised the filing of the Form F3 and approved its content. Further, before Mr Willeboordse departed the business, he had sent to Mr Devine a ‘Notice of Listing – Cancellation’ (Notice) which informed ACE:

THE LISTING(S) HAS NOW BEEN CANCELLED.
The respondent has advised that they wish for their objection to be dealt with in the first
instance.
The matter will be listed for a conference/hearing.
Parties…

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: [2023] FWC 115
Decision Date: 27 FEBRUARY 2023

CaseChat Overview and Summary

In Australian Ceramics Engineering Pty Ltd v Ryan Archer, the Fair Work Commission was asked to revoke a decision it had previously made that the applicant had been unfairly dismissed. The Commission dismissed the application to revoke. Australian Ceramics Engineering Pty Ltd (ACE) sought to revoke a decision of the Fair Work Commission that Mr Archer had been unfairly dismissed. ACE had not participated in the hearing of the unfair dismissal application, and had not filed any evidence in response to Mr Archer's application. ACE submitted that it had not participated because it had been misled by a temporary HR contractor, Mr Willeboordse, who had raised a jurisdictional objection on its behalf. The Commissioner who had made the decision was satisfied that there was a valid reason for Mr Archer's dismissal, but that it had been unfair because ACE had not redeployed Mr Archer to another position within the business. The Commissioner awarded Mr Archer $34,200 in compensation. ACE submitted that the Commissioner's decision was based on incomplete evidence, and that it had not participated because it had been misled by Mr Willeboordse. The Commissioner had found that Mr Archer could have been redeployed but was not. The Commissioner's finding was based on the evidence that Mr Archer had been told by a Mr Smiler, an Operations Manager at ACE, that he could work in the Wangara workshop if he did not get vaccinated. The Commissioner found that it was unreasonable for ACE to dismiss Mr Archer without redeploying him. Deputy President Beaumont found that the revocation application was not well founded. He found that ACE had not been misled by Mr Willeboordse. The evidence showed that Mr Willeboordse had knowledge of the unfair dismissal application and had informed Mr Devine, Managing Director of ACE, that there was no case to answer. Mr Devine had authorised the filing of the Form F3 and had been informed by Mr Willeboordse that the matter was likely to fall away. Mr Devine had not taken steps to enquire as to the status of the application against it, in circumstances where it had not received a new notice of listing or for that matter any other material from the Commission or Mr Archer. Mr Devine had not been informed by Mr Willeboordse that the application had been determined or otherwise concluded. The Commissioner had based his decision on incomplete evidence, in that ACE had not filed any material subsequent to the Form F3. However, the Deputy President found that ACE had not adduced persuasive evidence as to why it had failed to exercise due diligence and enquire about the status of the application against it. The Deputy President found that it was open to the Commissioner to determine that Mr Archer's dismissal was unfair on the basis of the evidence before him. The Deputy President concluded that the application to revoke was not well founded, and dismissed the application. The Deputy President also removed the stay of the original decision and order.

Orders