Dafallah v Fair Work Commission

Mariam Dafallah commenced proceedings against the Fair Work Commission (FWC) challenging the FWC's decision to refuse her leave to appeal a decision regarding her unfair dismissal by Melbourne Health. Ms Dafallah sought judicial review of the Full Bench decision on several grounds, including jurisdictional error, and claimed that the FWC's refusal to grant her leave to appeal was unreasonable, unfair and oppressive. Ms Dafallah further contended that the FWC failed to give her an opportunity to be heard and to act fairly in relation to her application for leave to appeal, and that the delay in the decision-making process affected the public interest. The court needed to determine if the Full Bench's decision to refuse leave to appeal was subject to judicial review on the grounds of jurisdictional error, and whether the FWC's decision was unreasonable, unfair or oppressive.

The court found that Ms Dafallah had not established any of her claims except her claims that Melbourne Health contravened cl 38 of the Health Services Union of Australia - Health and Allied Services, Administrative Officers - Victorian Public Sector - Multi Employer Certified Agreement 2006-2009. The court held that the Full Bench's decision was not affected by jurisdictional error and that Ms Dafallah had not demonstrated that the Full Bench failed to address the evidence and submissions put to it, misunderstood the operation of s 400 of the Fair Work Act 2009 (Cth) or failed to deal with the delay in the Commissioner’s decision as a matter capable of affecting the public interest. The court also found that the Full Bench's decision to refuse leave to appeal was not unreasonable, unfair or oppressive. The court concluded that the Full Bench had given Ms Dafallah a sufficient opportunity to be heard and to act fairly in relation to her application for leave to appeal, and that the delay in the decision-making process did not affect the public interest. The court found that Ms Dafallah was entitled to compensation in relation to the breach of cl 38 of the Agreement.

The court ordered Melbourne Health to pay Ms Dafallah compensation in the amount of $3,000 for the contravention of cl 38 of the Agreement, together with interest at the rate of 4% per annum from 1 September 2010 until the date of payment. The court dismissed the remainder of Ms Dafallah’s claims against the FWC and Melbourne Health.