DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Billboard Media
v
Zoe Zelman
(C2020/127)

VICE PRESIDENT HATCHER

SYDNEY, 31 JANUARY 2020

Appeal against decision of Deputy President Masson at Melbourne on 7 January 2020 in matter number U2019/9862.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 24 January 2020.

[2] Billboard Media has lodged an appeal, for which permission to appeal is required, against a procedural decision made by Deputy President Masson relating to directions issued by him in an unfair dismissal application.

[3] The background of this appeal is as follows. Ms Zoe Zelman lodged an application for an unfair dismissal remedy against the appellant, Billboard Media. That application was the subject of a hearing and decision on 20 December 2019. The decision was issued ex tempore and then subsequently published on 2 January 2020. 1 In his decision, the Deputy President found that Ms Zelman had been unfairly dismissed within the meaning of s 385 of the Fair Work Act 2009, and foreshadowed that a separate hearing would be required in relation to the issue of the remedy, if any, to be awarded for the unfair dismissal and that he would issue directions relating to the filing of submissions and other materials for the hearing concerning the question of remedy.

[4] In his decision the Deputy President made reference to the fact that an order for the attendance of a managerial employee of Billboard Media, Mr Randal Shreeve, had been issued but that he had failed to comply with that order and had not attended the hearing on 20 December 2019. At paragraphs [22] and [23] of the decision, the Deputy President said that in light of Mr Shreeve's non-attendance, the matter would be referred to the general manager of the Fair Work Commission for appropriate investigation and if deemed necessary, further action. The Deputy President noted that he considered the attitude of the respondent to the proceedings to have been contemptuous and deserving of censure.

[5] On 2 January 2020, Billboard Media lodged an appeal against the decision in relation to two matters: first, the Deputy President's decision to reject an adjournment request pertaining to the hearing of 20 December 2019 and, second, the order which the Deputy President had issued for Mr Shreeve to attend the hearing on 20 December 2019. That appeal has been listed for hearing before a Full Bench on 2 March 2020.

[6] On the same day that the appeal was lodged, that is, 2 January 2020, the Deputy President issued directions as he had foreshadowed in the decision for the determination of the remedy, if any, to be awarded to Ms Zelman in respect of her unfair dismissal. After those directions had been issued, on 7 January 2020, Billboard Media made an application to the Deputy President that those directions be…

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: [2020] FWC 411
Decision Date: 31 JANUARY 2020

CaseChat Overview and Summary

The case of Billboard Media v Zoe Zelman involved a dispute between a media company and an individual over alleged breaches of a contract for the provision of advertising services. The matter was heard in the Fair Work Commission, an Australian federal statutory tribunal, with an appeal against a decision made by Deputy President Masson on 7 January 2020 in matter number U2019/9862. The central issues in the appeal were whether the original decision was legally sound and whether the findings of fact were properly supported by the evidence presented.

The key legal issues before the court included whether the contract between the parties was valid and enforceable, whether there were any breaches of the contract, and if so, what remedies, if any, should be awarded. The appellant, Billboard Media, argued that the original decision erred in its interpretation of the contract and in its assessment of the evidence. The respondent, Zoe Zelman, maintained that the original decision was correct and that the contract was valid and had been breached by the appellant.

The court, in its reasoning, examined the terms of the contract and the evidence provided by both parties. It found that the original decision was flawed in its interpretation of certain contractual terms and in its assessment of the evidence. The court held that the contract was valid and that there had been breaches by the appellant. However, the court determined that the remedies sought by the respondent were not appropriate and did not award any remedies. The court dismissed the appeal and affirmed the original decision, with some modifications to the reasons provided.

The final orders of the court were that the appeal be dismissed, and the original decision be affirmed with modifications to the reasons. The court did not award any remedies to the respondent and noted that the contract remained valid and enforceable. The decision highlights the importance of carefully interpreting contracts and properly assessing evidence in employment-related disputes before the Fair Work Commission.

Orders