City Motor Transport Group v Devcic - [2014] FWCFB 6074

[2014] FWCFB 6074

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

City Motor Transport Pty Ltd
v
Zlatko Devcic
(C2014/926)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER JOHNS

SYDNEY, 11 SEPTEMBER 2014

Appeal against decision [2014] FWC 3040 of Commissioner Cambridge at Sydney on 9 May 2014 in matter number U2013/12907 - permission to appeal - whether Commissioner had erred in law in respect to his findings on repudiation - errors of fact - whether Commissioner’s findings were inconsistent with contemporaneous documents - no appealable error - permission to appeal refused.

[1] This is an application by City Motor Transport Pty Ltd (the Company) for permission to appeal and, if granted, an appeal against a decision 1 and order2 made by Commissioner Cambridge on 9 May 2014. The Commissioner determined that Mr Zlatko Devcic (the respondent) had been unfairly dismissed by the Company and that an amount approximating 26 weeks’ remuneration be ordered to be paid as compensation.

[2] The factual background to the matter may be set out in brief terms as follows:

- the Company operates a motor vehicle rental business and employs about twelve persons in an office-based environment;

- the respondent commenced employment with the Company in August 2006 and was employed in the full-time position of a rental manager;

- on 20 June 2013 the respondent sent an email to the Company requesting annual leave of 4 weeks and 4 days (from 1 July to 1 August 2013) to facilitate his travel to Croatia to attend to his father’s burial;

- the respondent had only 2 weeks accrued annual leave available and expected to take the additional amount of time off as unpaid leave;

- on 28 June 2013 the respondent was paid his weekly wages and given a cheque for payment of two weeks annual leave, together with a note which was headed “Termination Pay - Employer [sic] Resigned (Notice by Employee)”;

- on 1 July 2013, the day the respondent departed for Croatia, he sent an email to the Company refuting that he had resigned and requesting confirmation that he was on 2 weeks annual leave and the remainder as leave without pay;

- the respondent returned to Australia on 1 August and, after a brief telephone call to the Company, he received an SMS message which invited him to “apply for a position”;

- later that day the respondent sent an email refuting that he had resigned;

- on 5-9 August 2013, the respondent attended the workplace and undertook limited duties;

- during that week, the Company’s managing director was absent due to a serious medical condition; and

- on 9 August 2013, the respondent was advised by the Company’s operations manager that she considered he had resigned and that he should leave the premises.

[3] The respondent claimed that he was unfairly dismissed when he was directed to leave the workplace on 9 August 2013. The Company contended that the respondent had resigned his employment…

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: [2014] FWCFB 6074
Decision Date: 11 SEPTEMBER 2014

CaseChat Overview and Summary

City Motor Transport Group sought an appeal against the decision made by Commissioner Cambridge in the Fair Work Commission on 9 May 2014 in the matter of U2013/12907. The decision was being appealed by the employer, City Motor Transport Group, following an employee's claim regarding alleged unfair dismissal. The nature of the dispute centred around the Commissioner's findings concerning a repudiation of contract by the employer and whether there were factual errors in the determination, particularly in relation to the consistency of findings with contemporaneous documents.

The primary legal issues before the court were whether the Commissioner had erred in law in respect to his findings on the alleged repudiation and whether there were errors of fact in the Commissioner's findings. Additionally, the court needed to determine if the Commissioner's findings were inconsistent with the contemporaneous documents provided. The employer argued that the Commissioner had made an error in law and that there were factual inconsistencies in the decision.

In assessing the appeal, the court found that there was no appealable error in the Commissioner's decision. The court held that the Commissioner's findings on the issue of repudiation were not erroneous in law and that the findings were consistent with the evidence and documents provided. The court concluded that the employer had not demonstrated any inconsistencies between the Commissioner's findings and the contemporaneous documents, and therefore, the appeal was without merit. Consequently, the court refused the employer's application for permission to appeal.

Orders