Beat (Joe) Unternaehrer v Compri Tube Clean Pty Ltd T/A Compri Tube Clean
[2015] FWCFB 2539
•15 APRIL 2015
| [2015] FWCFB 2539 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Compri Tube Clean Pty Ltd T/A Compri Tube Clean
(C2014/7919)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 15 APRIL 2015 |
Application Dismissed Appeal against decision [2014] FWC 7736 of Deputy President McCarthy at Perth on 4 November 2014 in matter number U2014/907 - no appealable error - public interest not enlivened - appeal dismissed.
[1] On 21 March 2014 Mr Unternaeher lodged an application pursuant to s 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Compri Clean Pty Ltd T/A Compri Tube Clean (Compri Tube Clean). Mr Unternaehrer contended that he was dismissed on 4 March 2014.
[2] The Compri Tube Clean response to that application objected to it on the grounds that it was lodged outside of the time limit established by s.394(2) of the FW Act because Mr Unternaehrer’s employment was terminated on 27 February 2014.
[3] On 23 October 2014, then Deputy President McCarthy, conducted a hearing which dealt with the date upon which Mr Unternaehrer’s termination of employment took effect and the basis upon which any extension of time should be considered. The Deputy President issued a decision 1 on 4 November 2014 in which he concluded that Mr Unternaehrer was dismissed with immediate effect on 27 February 2014. The Deputy President then considered the submissions put to him on 4 November 2014 relative to whether an extension of time was both necessary and should be granted pursuant to s394. The Deputy President concluded that the application was lodged outside of the 21 day time limit specified in s.394(2). Having considered each of the factors set out in s.394(3), he concluded that Mr Unternaehrer had not established exceptional circumstances such that the 21 day time limit should be extended. The application was dismissed on this basis.
[4] Mr Unternaehrer has appealed this decision and order. 2 That appeal was the subject of a hearing by video on 2 April 2015. At that hearing we granted permission to Mr Gray, of counsel, to represent Mr Unternaehrer. That permission was granted pursuant to s.596(2)(a) and (b) because we were satisfied that Mr Unternaehrer had been represented in the initial proceedings and it would be more efficient for the conduct of this appeal for that representation to continue. We were also satisfied that, given that Mr Unternaehrer came from a non-English speaking background, a grant of permission was appropriate pursuant to s.596(2)(b). Ms Dawes, the Managing Director of Compri Tube Clean, appeared for the respondent.
[5] The Deputy President’s decision and order were made under Part 3-2 Unfair Dismissal - of the FW Act. Section 400(1) provides that permission to appeal must not be granted from a decision and order made under this Part unless the Commission considers that it is in the public interest to do so. In addition, this section provides that appeals on a question of fact may only be made on the ground that the decision and order involved a “significant error of fact”. 3 The test under s.400 was characterised as a “stringent one” by the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler and Others.4
[6] In GlaxoSmithKline Australia Pty Ltd v Makin 5 a Full Bench of the Commission addressed the public interest test in the following terms:
“27 Although 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, it seems to us that none of those elements is present in this case.”
[7] In the appeal, Mr Unternaehrer asserts that the Deputy President erred in finding that the termination of his employment took effect on 27 February 2014. We have reviewed all of the evidence and material before the Deputy President and are satisfied that his finding, 6 that Mr Unternaehrer was dismissed on 27 February 2014 with immediate effect, was clearly open to him on the evidence before him and did not represent any form of appealable error.
[8] Mr Unternaehrer’s assertion that the Deputy President should have found that special circumstances existed for an extension of time is not supported by the material or the submissions before the Deputy President and does not disclose an error or an issue attracting the public interest. Mr Unternaehrer’s submissions in this regard simply reflect his disagreement with the discretion properly exercised by the Deputy President.
[9] Finally, we are not satisfied that Mr Unternaehrer’s assertion that the hearing before the Deputy President was procedurally unfair, because it preceded by way of a telephone link which was inadequate, has been made out to us. We have reviewed the entirety of that hearing and are not satisfied that there was any inherent unfairness in the conduct of the proceeding.
[10] We are not persuaded that Mr Unternaehrer has established that it is in the public interest to grant permission to appeal. The Deputy President addressed each of the relevant considerations and we have not been persuaded that his decision and order discloses any error of principle or any significant error of fact. Accordingly, and consistent with s.400(1), we do not consider that it is in the public interest to grant permission to appeal. We refuse that permission and dismiss the appeal accordingly.
Appearances (by Video-Link):
T Gray counsel for the Appellant.
B Dawes representing the Respondent.
Hearing details:
2015.
Adelaide (and Video-link to Melbourne, Perth and Brisbane)
April 2.
1 [2014] FWC 7736
2 PR557241
3 Section 400(2)
4 [2011] 192 FCR 78 at para 43
5 (2010) 197 IR 266, para 27
6 [2014] FWC 7736, para 19
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