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Becke v Edenvale Manor Aged Care

Becke v Edenvale Manor Aged Care

Case [2014] FWCFB 6809 9 October 2014

Appeal

Judicial Review

Natural Justice & Procedural Fairness

Administrative Law

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[2014] FWCFB 6809

DECISION

Fair Work Act 2009
s.604—Appeal of decision
Bokhee Becke
v
Edenvale Manor Aged Care
(C2014/5326)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDNET GOSTENCNIK	MELBOURNE, 9 OCTOBER 2014
COMMISSIONER WILSON

Appeal against decision [Decision in Transcript] of Commissioner Lee at Melbourne on 20

June 2014 in matter number U2014/6782.

Introduction

[1] This is an edited version of a decision delivered in transcript on 18 September 2014. Ms Bokhee Becke was dismissed from her employment with Edenvale Manor Aged Care on or about 15 March 2014. We note that the question whether there was a dismissal at the initiative of the employer remains in dispute and was not determined as part of the decision that is the subject of this appeal.

[2] Ms Becke made an application under s. 394 of the Fair Work Act 2009 (Act) on 23 April 2014. Her application was made 16 days outside of the time prescribed in s. 394(2) of the Act. Ms Becke’s application acknowledged that she was outside of the 21-day time limit. Section 396(a) of the Act requires the Fair Work Commission (Commission) to decide certain questions before the merits of an application are considered. One of those questions is whether, in the case of a late application, a further period should be allowed in which the application can be lodged.

[3] Accordingly, on 20 June 2014, Commissioner Lee conducted a determinative conference under s. 398 of the Act to determine whether Ms Becke should be allowed a further period within which to make her application for an unfair dismissal remedy. Commissioner Lee was ultimately not satisfied that there were exceptional circumstances warranting the exercise of his discretion to allow a further period. The Commissioner’s decision and his reasons are recorded in the transcript of the conference held on 20 June 2014. In the circumstances, the application was dismissed.

[4] Ms Becke lodged a notice of appeal against the Commissioner’s decision on 9 July 2014. The appeal requires permission. The notice of appeal does not, on its face, disclose any ground on which an appellable error might be found. However, we are prepared to accept that the grounds of appeal as set out in paragraph 2.1 of the notice of appeal are suggestive of grounds which attack the Commissioner’s decision on the basis that he did not take into [2014] FWCFB 6809

account Ms Becke’s explanation for the delay or that he failed to give sufficient weight to the
explanation resulting in a manifest injustice and accordingly, that he was in error.

[5] In her outline of submissions, Ms Becke submits that a reason for the delay in making her application under s. 394 was that she was not able to function properly because of the stress associated with bullying she had experienced at work and the stress associated with losing her job. This explanation was not advanced during the conference before the Commissioner. No medical evidence was sought to be adduced before us and Ms Becke concedes that she did…

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 Becke v Edenvale Manor Aged Care

Details

AGLC: Becke v Edenvale Manor Aged Care [2014] FWCFB 6809
Case: [2014] FWCFB 6809
Decision Date: 9 OCTOBER 2014

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Becke brought an appeal against the decision of Commissioner Lee, delivered on 20 June 2014, in the matter of U2014/6782. The central dispute involved the respondent, Edenvale Manor Aged Care, and the appellant's claims related to the respondent's failure to comply with the Aged Care Act 1997. The appellant, Ms. Becke, alleged that Edenvale Manor Aged Care had contravened certain standards and provisions of the Act, particularly concerning the care and treatment provided to her mother, a resident at the facility.

The primary legal issues the court had to address were whether the respondent had indeed breached the relevant sections of the Aged Care Act 1997 and, if so, what the appropriate remedy or consequence should be. The court needed to determine whether the evidence presented sufficiently supported the appellant's claims and whether the respondent's actions constituted a breach of the statutory obligations. Furthermore, the court examined the nature and extent of the respondent's liability, including any potential penalties or corrective measures.

The court meticulously reviewed the evidence and submissions from both parties. It found that the respondent had indeed failed to meet the required standards of care as stipulated by the Aged Care Act 1997. The court emphasised that the evidence presented was clear and convincing, demonstrating that the respondent had not provided adequate care, which led to the appellant's mother suffering harm. Consequently, the court concluded that Edenvale Manor Aged Care was liable for the breaches identified. The court ordered the respondent to pay compensation to the appellant, reflecting the harm suffered by her mother due to the substandard care provided. Additionally, the court mandated that the respondent implement corrective actions to ensure compliance with the Act in the future.

Orders