DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Christopher Chambers
v
CA Investigations Pty Ltd
(C2020/6957)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT MANSINI
COMMISSIONER WILSON

SYDNEY, 20 NOVEMBER 2020

Appeal against decision [2020] FWC 4704 of Commissioner Simpson at Brisbane on 3 September 2020 in matter number U2020/6449.

Introduction and background

[1] Mr Christopher Chambers has lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (FW Act), for which permission to appeal is required, against a decision issued by Commissioner Simpson on 3 September 2020 1 (decision). The decision concerned an application made by Mr Chambers for an unfair dismissal remedy in respect of the termination of his employment with CA Investigations Pty Ltd (company). The Commissioner determined that a binding settlement agreement was reached and accordingly dismissed the application pursuant to s 587(1)(c) of the FW Act on the basis that it had no reasonable prospects of success.

[2] By his notice of appeal, we understand that Mr Chambers contends that the decision was affected by a significant error of fact in that no settlement was reached. Details of the appeal ground(s) follow in this decision.

[3] Mr Gaffney of Unfair Dismissal Experts Pty Ltd (as Mr Chambers’ then representative) lodged the unfair dismissal remedy application on 8 May 2020. The matter was listed for initial conciliation but did not resolve and accordingly it was allocated to Commissioner Simpson.

[4] On 16 July 2020, Mr Chambers’ then representative made an application to vacate a conference which was to take place before the Commissioner later that day on the basis that agreement had been reached to settle the matter. The company’s representative consented to the adjournment and the conference was vacated. Subsequently, on 6 August 2020, Mr Chambers emailed the Commissioner’s chambers to the effect that the settlement was rejected and he intended to pursue the matter further. On 12 August 2020, Unfair Dismissal Experts Pty Ltd informed the Commission that it no longer acted for Mr Chambers and confirmed that Mr Chambers had agreed to a settlement but subsequently rejected it because he did not realise the amount would be subject to tax. The company’s representative opposed Mr Chambers’ purported rejection of the settlement agreement and produced email records regarding the offer to resolve the matter and the acceptance of that offer by Mr Chambers’ then representative.

[5] On 20 August 2020, the matter was listed for mention/hearing before the Commissioner. Mr Chambers represented himself and was given a further opportunity to make submissions by 28 August 2020 as to why the emails produced by the company did not indicate a settlement had been reached. Mr Chambers did not file submissions.

The decision

[6] In determining that a binding settlement agreement had been reached, the Commissioner found:

“[22] The email correspondence relied on by the Respondent indicates that the parties negotiated and agreed on a resolution to the Applicant’s application. It appears an offer was made in writing…

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] FWCFB 6224
Decision Date: 20 NOVEMBER 2020

CaseChat Overview and Summary

In the matter of Christopher Chambers v CA Investigations Pty Ltd, the appellant, Mr Chambers, sought to appeal a decision made by Commissioner Simpson, who dismissed Mr Chambers' unfair dismissal remedy application on the basis that a binding settlement agreement had been reached. The Full Bench of the Fair Work Commission, consisting of Vice President Hatcher, Deputy President Mansini, and Commissioner Wilson, considered the appeal. The primary issue before the Full Bench was whether permission to appeal should be granted to Mr Chambers under s 604 of the Fair Work Act 2009. The Full Bench noted that an appeal could only be made with the permission of the Commission, and under s 400 of the FW Act, the Commission must not grant permission to appeal unless it is in the public interest to do so. The Full Bench found that Mr Chambers' appeal did not disclose any reasonably arguable contention of appealable error and did not raise any issue of law, principle, or general application warranting the grant of permission to appeal in the public interest. The Full Bench concluded that there was no basis to be satisfied that the grant of permission to appeal would be in the public interest and accordingly refused permission to appeal.

The Full Bench observed that Mr Chambers had not participated in the hearing of his appeal, despite being given a fair opportunity and reasonable assistance to make written and oral submissions. The Full Bench found that Mr Chambers had not made reasonable efforts to follow up or understand what was required of him in a timely manner and that he had deliberately chosen not to participate in the hearing of his appeal. The Full Bench considered the matter on the basis of the contents of Mr Chambers' notice of appeal. The Full Bench concluded that the appeal did not involve reasonably arguable contentions of appealable error on the part of the Commissioner in determining that a binding settlement agreement was reached and that Mr Chambers' unfair dismissal remedy application should be dismissed pursuant to s 587(1)(c) on the basis of no reasonable prospects of success. The Full Bench further found that there was no basis for it to be satisfied that the grant of permission to appeal would be in the public interest and accordingly refused permission to appeal.

Orders