Church of Ubuntu v Lainie Chait

[2023] FWCFB 20

FAIR WORK COMMISSION

CORRECTION TO DECISION

Fair Work Act 2009

s.604—Appeal of decision

Church Of Ubuntu
v

Lainie Chait

(C2022/6387)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CROSS
COMMISSIONER P RYAN

SYDNEY, 1 FEBRUARY 2023

Appeal against order PR745276 of Deptuy President Asbury at Brisbane on 29 August 2022, and Decision [2022] FWC 2947 on 7 November 2022 in matter number U2021/9704 – correction to appeal decision

The decision issued by the Fair Work Commission on 30 January 2023 [[2023] FWCFB 20] (‘Original Decision’) is corrected as follows:

Paragraph [12] of the Original Decision stated: “For the reasons that follow, permission to appeal is refused.” This paragraph has been deleted and replaced with:

“At the commencement of the hearing, we granted permission to appeal. The Full Bench was satisfied that the grant of permission to appeal in this matter was in the public interest as the appeal was jurisdictional in nature. Permission to appeal was therefore granted in accordance with ss. 400(1) and 604(2) of the Act.”

Paragraph [48] of the Original Decision, as set out below, has been deleted:

“Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
(a)There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b)The appeal raises issues of importance and/or general application;
(c)The decision at first instance manifests an injustice, or the result is counter intuitive; or
(d)The legal principles applied by the Deputy President when compared with other decisions dealing with similar matters.”

Paragraph [49] of the Original Decision stated: “For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the Act, that it would be in the public interest to grant permission to appeal, and permission to appeal is refused.” This paragraph has been deleted and replaced with:

“[48] As noted above, at the commencement of the hearing, we granted permission to appeal because the appeal was jurisdictional in nature.”

Paragraph [54] of the Original Decision has been amended for grammatical purposes and to delete “1. Permission to appeal is refused.” It now reads:

“[53] The Order of the Commission is:

1. The matter is referred to Deputy President Asbury to determine whether the Appellant’s unfair dismissal application was filed within the time required in s.394(2) of the Act.”

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The appeal, heard by the Fair Work Commission Full Bench, involved Church of Ubuntu challenging a decision made by Deputy President Asbury in the matter of Lainie Chait. The crux of the dispute was whether the Full Bench should grant permission for an appeal against the earlier decision that had dismissed the appellant's application for unfair dismissal. The appeal pertained to the jurisdictional limits and procedural correctness of the initial decision.

The legal issues before the Full Bench included determining whether the grant of permission to appeal was in the public interest and whether the appeal had jurisdictional implications. The Full Bench had to consider the criteria set out in section 400(1) of the Fair Work Act 2009, specifically whether the appeal raised issues of general application, manifested an injustice, or required guidance due to a diversity of first instance decisions.

The Full Bench found that the appeal was jurisdictional in nature and, therefore, granting permission to appeal was in the public interest. The Full Bench emphasised that the appeal's jurisdictional character warranted the review of the Deputy President's decision. The Full Bench concluded that the original decision to refuse permission to appeal was incorrect and that the appeal had indeed met the threshold for public interest as per the Act.

The Full Bench corrected the original decision by granting permission to appeal and referred the matter back to Deputy President Asbury to determine if the Appellant's unfair dismissal application was filed within the requisite time frame under section 394(2) of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established