Brett Steed v Active Crane Hire Pty Ltd - [2023] FWCFB 152

[2023] FWCFB 152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Brett Steed
v

Active Crane Hire Pty Ltd

(C2023/557)

VICE PRESIDENT ASBURY
COMMISSIONER BISSETT
COMMISSIONER JOHNS

BRISBANE, 1 SEPTEMBER 2023

Appeal against decision [2023] FWC 15 of Deputy President Boyce at Sydney on 25 January 2023 in matter number U2022/4290.

Overview

Mr Brett Steed (the Appellant) has lodged an appeal under s. 604 of the Fair Work Act 2009 (the Act), for which permission is required, against a Decision of Deputy President Boyce issued on 25 January 2023[1] (Merits Decision). In the Merits Decision, the Deputy President determined that the Appellant had been unfairly dismissed, notwithstanding that the Respondent was found to have a valid reason for dismissing the Appellant.

The Deputy President reached this conclusion based on a finding that the Respondent’s failure to give the Appellant an opportunity to respond or raise issues of mitigation before the Respondent decided to dismiss the Appellant, weighed in favour of the dismissal being harsh, unjust and unreasonable. The Deputy President also concluded that reinstatement was inappropriate, finding that the Appellant had shown no contrition or remorse for his conduct, and that there was clear animosity between the Appellant and the Respondent’s management. On this basis the Deputy President considered that an award of compensation to the Appellant would be an appropriate remedy for his unfair dismissal.

After setting out the legislative provisions relevant to an award of compensation, the Deputy President noted that evidence was not tendered during the hearing in relation to the matters required to be considered in the calculation of compensation and decided to issue further directions for the filing of evidence and written submissions prior to any order for compensation being made.

The appeal was lodged on 22 February 2023 and was listed for hearing before the Full Bench on 9 March 2023. At the request of the parties, the hearing of the appeal was deferred until the Deputy President handed down his decision on compensation on the basis that this would enable the matter to be finally resolved by the Full Bench in the event that permission was granted, and the appeal succeeded on one or more grounds.

On 3 March 2023, the Deputy President issued a further decision[2] ordering the Respondent to pay the Appellant compensation in the amount of $6,043.92 (Compensation Decision), pending the resolution of this appeal. The Appellant pressed the appeal, and it was listed for hearing on 24 May 2023 in relation to both permission to appeal and the merits of the appeal. The Appellant was granted permission to be legally represented on the basis that we were satisfied that the appeal raised issues of complexity and that legal representation would enable the matter to be dealt with more efficiently. The Appellant was represented by Mr P Boncardo of Counsel in the appeal and by the Transport Workers Union of Australia at the first instance hearing. The Respondent was represented by its Director, Mr H Buchberger.

Permission…

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] FWCFB 152
Decision Date: 1 SEPTEMBER 2023

CaseChat Overview and Summary

Brett Steed has appealed a decision of Deputy President Boyce (Merits Decision) in which it was determined that Mr Steed had been unfairly dismissed by his employer, Active Crane Hire Pty Ltd, despite finding that the dismissal was based on a valid reason. The Full Bench granted permission for the appeal and allowed the appeal on three grounds. Firstly, the Full Bench found that the Deputy President had failed to address a substantial component of Mr Steed’s case in relation to remedy, namely, that reinstatement should be ordered as there had been no loss of trust and confidence as between the parties. Secondly, the Full Bench found that the Deputy President’s finding that there was clear animosity between Mr Steed and the Respondent’s management denied Mr Steed procedural fairness. Thirdly, the Full Bench found that the Deputy President made a significant error of fact in finding that there was a valid reason for Mr Steed’s dismissal on the basis that he had no reason to be resting up or escaping the rain in the truck. The Full Bench quashed the Merits Decision and the Compensation Decision, and remitted the application for unfair dismissal remedy to Commissioner Johns for redetermination.

Orders