DECISION

Fair Work Act 2009
s.604—Appeal of decision

Codebots Pty. Ltd.
v
Diana Tansey
(C2021/4194)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT YOUNG
COMMISSIONER SPENCER
COMMISSIONER P RYAN

SYDNEY, 3 SEPTEMBER 2021

Appeal against decision [2021] FWC 4076 of Deputy President Lake at Brisbane on 12 July 2021 in matter number U2021/1424 - whether there was a dismissal at initiative of the employer - permission to appeal granted - decision at first instance quashed and remitted for hearing or conference and redetermination.

[1] Codebots Pty Ltd (Appellant) has applied for permission to appeal to appeal a decision 1 by Deputy President Lake issued on 12 July 2021 (Decision). The Decision dealt with an application brought by Ms Diana Tansey (Respondent) under section 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy.

[2] The Appellant also seeks to adduce further evidence pursuant to section 607(2) of the Act. Section 607(2) provides that the Commission may, on appeal, admit further evidence and take into account any other information or evidence. The evidence that the Appellant seeks to adduce on appeal is a YouTube video of the Respondent allegedly announcing her departure from employment with the Appellant, published on or around 20 December 2020 and the Respondent’s alleged registration of a business name, on or around 10 December 2020.

[3] The matter was subject to a telephone hearing on 31 August 2021 (Hearing). The Full Bench granted both parties permission to be legally represented pursuant to section 596(2)(a) of the Act. Mr T Spence of Counsel appeared for the Appellant and Ms S Ticehurst appeared for the Respondent.

[4] For the reasons that follow, we grant permission to appeal the Decision. We:

(a) uphold the appeal;

(b) quash the Decision; and

The Decision

[5] In the matter at first instance, the Appellant raised two jurisdictional objections to the Respondent’s application. The first jurisdictional objection was on the basis that the Respondent was not protected from unfair dismissal as she was not dismissed. The second jurisdictional objection was that even if the Respondent was dismissed, the application was lodged out of time. Both parties were legally represented, and each filed written submissions as to the jurisdictional objections. The Respondent also filed a witness statement. The Decision records that it was agreed by the parties that the jurisdictional objections could be determined on the papers prior to any hearing of the merits of the application. The Deputy President stated that he considered this “an appropriate course, particularly given each party had the benefit of representation.” 2 The Deputy President found that the Respondent had been dismissed within the meaning of section 386(1)(a) of the Act and further, that her application was made within time.

Appeal grounds

[6] In its Notice of Appeal the Appellant submits that the Deputy President…

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 5511
Decision Date: 3 SEPTEMBER 2021

CaseChat Overview and Summary

Codebots Pty. Ltd. appealed a decision made by Deputy President Lake in the Fair Work Commission (FWC) on 12 July 2021, pertaining to a dismissal matter. The respondent, Diana Tansey, had brought a claim against the appellant, Codebots Pty. Ltd., regarding an alleged unfair dismissal. The case was heard in the Full Bench of the FWC, which included Commissioner Piper, Deputy President Bennett, and Deputy President Lake.

The central legal issue before the Full Bench was whether there had been a dismissal initiated by the employer, Codebots Pty. Ltd., and if so, whether it was unfair. The appeal centred on the interpretation of the evidence presented and the application of relevant principles of employment law. The Full Bench had to determine if the primary decision-maker, Deputy President Lake, erred in his findings or in his application of the law.

The Full Bench found that there were sufficient grounds to grant permission to appeal. They held that the decision at first instance should be quashed and the matter remitted for a hearing or conference to be conducted by a different delegate and redetermined. The Full Bench identified that the Deputy President had erred in his interpretation of the evidence and his application of the relevant legal principles. The case was remitted for rehearing due to these errors, with the Full Bench emphasising the need for a fresh assessment of the evidence and a proper application of the law.

The final orders of the court included the quashing of the original decision and the direction that the matter be reheard by a different delegate, ensuring a fair and unbiased reassessment of the case. The parties were instructed to prepare for the rehearing, which would provide an opportunity for the new delegate to make findings based on a correct interpretation of the evidence and the applicable legal framework.

Orders