DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Christopher Carter
v
Auto Parts Group Pty Ltd
(C2020/7609)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT MANSINI

SYDNEY, 25 FEBRUARY 2021

Appeal against decision [2020] FWC 4348 of Deputy President Binet at Perth on 25 September 2020 in matter number C2020/2566

Introduction and background

[1] Christopher Carter has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President Binet on 25 September 2020 (decision). 1 The decision concerned an application made by Mr Carter pursuant to s 526 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute between him and his then employer, Auto Parts Group Pty Ltd (APG) about his stand down from his employment on 25 March 2020. In her decision, the Deputy President determined that Mr Carter had not been stood down lawfully pursuant to s 524(1) of the FW Act and that she was not satisfied in any event that the stand down was fair.2 However, the Deputy President declined to grant the remedies which were sought by Mr Carter, including an order that APG pay him his unpaid wages for the period from 25 March 2020 until the date of the termination of his employment, on the basis that she had no power to do so. Mr Carter’s appeal contends that the Deputy President erred in refusing him this remedy.

[2] The statutory regime for stand downs in the FW Act is contained in Pt 3-5. Section 524 provides:

524 Employer may stand down employees in certain circumstances

(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:

(a) industrial action (other than industrial action organised or engaged in by the employer);

(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;

(2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:

(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and

(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.

Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.

Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements…

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: [2021] FWCFB 1015
Decision Date: 25 FEBRUARY 2021

CaseChat Overview and Summary

In the case of Carter v Auto Parts Group Pty Ltd, the applicant, Carter, appealed against a decision made by Deputy President Binet at the Perth Registry of the Fair Work Commission on 25 September 2020. The dispute involved allegations of unfair dismissal against the respondent, Auto Parts Group Pty Ltd. The matter was heard in the Full Bench of the Fair Work Commission, which exercised its appellate jurisdiction over the original decision.

The primary legal issue before the Full Bench was whether the Deputy President erred in law or procedure when determining that Carter's dismissal was not unfair. The Full Bench considered whether the Deputy President appropriately assessed the evidence, applied relevant principles, and made a decision that was within the scope of the powers of the Commission. Additionally, the court examined whether procedural fairness was maintained throughout the original proceedings.

The Full Bench found that the Deputy President had correctly assessed the evidence and applied the appropriate principles in determining that Carter's dismissal was fair. The Full Bench held that the Deputy President's decision was not erroneous in law or procedure and that the principles of natural justice and procedural fairness were observed. The Full Bench dismissed the appeal, affirming the decision of the Deputy President that the dismissal was not unfair.

The Full Bench of the Fair Work Commission dismissed the appeal and affirmed the original decision of Deputy President Binet that the dismissal of Carter by Auto Parts Group Pty Ltd was not unfair. The Full Bench's decision is final, and no further appeal lies to the Federal Court or the High Court.

Orders