Daniel James Hunter v Karara Mining Ltd - [2022] FWCFB 73

[2022] FWCFB 73

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Daniel James Hunter
v

Karara Mining Ltd

(C2022/2001)

VICE PRESIDENT Catanzariti
deputy president clancy
commissioner wilson

PERTH, 16 MAY 2022

Appeal against decision [[2022]FWC494 of Deputy President Beaumont at Perth on 08 March 2022 in matter number U2022/409 – permission to appeal refused.

Daniel Hunter (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Deputy President Beaumont (Deputy President) issued on 11 March 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy again Karara Mining Ltd (the Respondent), pursuant to s.394 of the Act.

Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s.394(2). It was not in dispute that the dismissal took effect on 15 December 2022, accordingly, the period of 21 days ended at midnight on 5 January 2022. The application before the Deputy President was made on 6 January 2022 and therefore filed 1 day outside the 21-day period.

Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made by a person under s.394(1) if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.

The Deputy President was not satisfied that there were exceptional circumstances and declined the Appellant’s request, issuing the Decision and an Order dismissing his application. The Appellant seeks to appeal the Decision.

Appeal Notice and Submissions

The Appellant lodged his Notice of Appeal on 28 March 2022. The primary contention within the Notice was that the Appellant had been treated unfairly in the initial decision because the Deputy President’s chief consideration was the jurisdictional question of whether an extension of time should be granted, rather that the merits of his unfair dismissal claim.

The Notice of Appeal also went into some detail of the merits of the Appellant’s unfair dismissal claim, stating that the Respondent’s requirement that he be vaccinated or dismissed, without a risk analysis of the vaccine he found satisfactory, amounted to bribery, coercion, and intimidation into economic duress.

Following the lodgement of the Appellant’s Notice of Appeal, the matter was listed for permission to appeal only with directions set for filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to…

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.

Continue reading Daniel James Hunter v Karara Mining Ltd

Details

AGLC: Daniel James Hunter v Karara Mining Ltd [2022] FWCFB 73
Case: [2022] FWCFB 73
Decision Date: 16 MAY 2022

CaseChat Overview and Summary

Daniel James Hunter (the Appellant) appealed against a decision of Deputy President Beaumont (Deputy President) that dismissed his unfair dismissal application as outside the 21-day deadline set out in s.394 of the Fair Work Act 2009 (Cth) (the Act). The appeal required the permission of the Fair Work Commission (the Commission). The appeal was heard by Vice President Catanzariti, Deputy President Clancy, and Commissioner Wilson. The Full Bench considered whether there was an arguable case of error in the Deputy President's decision and whether the appeal was in the public interest. The Appellant argued that the Deputy President failed to consider the merits of his unfair dismissal claim and only focused on the jurisdictional question of whether to extend the time for lodging his application. The Full Bench found no error in the Deputy President's decision, as she applied the correct legal principles and made findings of fact based on the evidence. The Full Bench also found that the appeal did not attract the public interest as it did not raise issues of importance or general application, nor did it manifest an injustice or result in a counter-intuitive outcome. The Full Bench refused permission to appeal.

Orders