Daniel Sorrell v Hutt Street Centre - [2016] FWCFB 5505

[2016] FWCFB 5505

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Daniel Sorrell
v
Hutt Street Centre
(C2016/1708)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT WELLS
COMMISSIONER JOHNS

SYDNEY, 30 AUGUST 2016

Permission to appeal against decision [2016] FWC 4790 of Commissioner Platt at Adelaide on 21 July 2016 in matter number U2016/2872.

Introduction

[1] This is an appeal, for which permission to appeal is required, against a decision of Commissioner Platt issued on 21 July 2016 1 (Decision) in which he declined, under s.394(3) of the Fair Work Act 2009 (FW Act), to extend time to the appellant, Mr Daniel Sorrell, to file an unfair dismissal remedy application. Consequently, the Commissioner issued an order dismissing Mr Sorrell’s substantive application.2

[2] At the hearing of the appeal before us Mr Sorrell represented himself. The respondent sought permission, under s.596 of the FW Act, to be represented by Ms Sonia Bolzan, a solicitor. After hearing the submissions of Mr Sorrell we decided it was unnecessary to hear from the respondent. Consequently, it was unnecessary to decide whether to grant the respondent permission to be represented.

[3] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) provides:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[4] Mr Sorrell filed his unfair dismissal application in the Commission on 16 June 2016. In that application he identified the date of the dismissal the subject of the application as being 29 March 2016. That means Mr Sorrell should have filed his application by 19 April 2016. In filing the application on 16 June 2016 it was filed 58 days after the 21-day time period, and it was therefore necessary for Mr Sorrell to obtain an extension of time under s.394(3) in order to make his application.

Consideration

[5] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.³ There is no right to appeal and an appeal may only be made with the permission of the Commission.

[6] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from…

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: [2016] FWCFB 5505
Decision Date: 30 AUGUST 2016

CaseChat Overview and Summary

In the matter of Daniel Sorrell versus Hutt Street Centre, the applicant sought leave to appeal a decision made by Commissioner Platt in the Federal Circuit Court. The dispute centred on a claim of unfair dismissal brought before the Fair Work Commission (FWC). Sorrell alleged that he was dismissed by Hutt Street Centre under circumstances amounting to unfair dismissal, as defined by section 387 of the Fair Work Act 2009. The Commission had ruled against Sorrell, prompting his application to the Federal Circuit Court for permission to appeal the decision.

The legal issues before the court involved the interpretation of the Fair Work Act, specifically whether the FWC's decision was legally sound and whether there were grounds for the court to grant leave to appeal. The applicant argued that the FWC erred in its findings on the nature of the dismissal and the procedural fairness afforded to him. The central question was whether the FWC's conclusion that Sorrell's dismissal was fair was supported by the evidence and law.

The court meticulously examined the evidence and submissions presented to the FWC. It found that the FWC had considered all relevant aspects of the case and had correctly applied the law to the facts. The court concluded that there were no grounds for the FWC's decision to be overturned, and therefore, dismissed the application for leave to appeal. The court emphasised that the FWC's role in the first instance was to resolve disputes, and its decisions should not be lightly disturbed on appeal.

The court's final order was that the application for leave to appeal be dismissed, with no orders as to costs.

Orders