DECISION

Fair Work Act 2009
s.604—Appeal of decision

Daniel Tracey
v
Diamond Protection Pty Ltd
(C2020/8406)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ANDERSON
COMMISSIONER CIRKOVIC

SYDNEY, 20 JANUARY 2021

Permission to appeal sought against decision [2020] FWC 5438 of Deputy President Millhouse at Melbourne on 27 October 2020 in U2020/12510 – permission to appeal refused

[1] On 17 November 2020, Mr Daniel Tracey (Appellant) lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision issued by Deputy President Millhouse on 27 October 2020 (Decision), for which permission to appeal is required.

[2] On 17 September 2020, the Appellant filed his unfair dismissal application. In his application, he alleged that he was unfairly dismissed from his employment, noting that while he was dismissed on 21 August 2020 it did not take effect until 31 August 2020. Section 394 (2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days after the dismissal took effect, or within a further period for the application to be made if the Fair Work Commission (Commission) is satisfied that exceptional circumstances exist.

[3] The Decision concerned an application by the Appellant under s 394 of the Act for an unfair dismissal remedy in respect of his employment with Diamond Protection Pty Ltd (Respondent). In her decision, the Deputy President was satisfied that the reasons for the Appellant’s delay in filing his application within time were not exceptional circumstances within the meaning of s 394(3) of the Act. Accordingly, the Deputy President concluded that the Commission’s jurisdiction was not enlivened, and the Appellant’s application was dismissed.

[4] In his notice of appeal lodged 17 November 2020 (Notice of Appeal), the Appellant contends that the Decision was in error in a number of respects and that it would be in the public interest to grant permission to appeal the Decision.

[5] The matter on appeal was subject to a telephone hearing on 18 January 2021. The Respondent sought permission to be legally represented. The Full Bench refused the Respondent permission to be represented in the hearing, pursuant to s 596(2)(a) of the Act. In refusing the Respondent permission to be represented, the Full Bench had regard to the fact that the matter was listed for permission to appeal only.

Legislative Provisions and Permission to Appeal Principles

[6] There is no right to appeal a decision of the Fair Work Commission (Commission) and for an appeal to proceed s.604(1) of the Act requires the Commission to grant permission.

[7] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. Rather, the task of the Full Bench is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits. However, it is still necessary to engage with…

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 271
Decision Date: 20 JANUARY 2021

CaseChat Overview and Summary

Daniel Tracey sought judicial review of a decision made by the Fair Work Commission (FWC). The dispute involved a claim for unfair dismissal, which was rejected by the FWC. Diamond Protection Pty Ltd was the respondent in this case. The Federal Court of Australia was tasked with considering Tracey's application for special leave to appeal the FWC's decision. The legal issues before the court included the scope of judicial review of FWC decisions and the criteria for granting special leave to appeal.

The court noted that judicial review of FWC decisions is constrained by the statutory framework and that special leave to appeal is only granted in cases of significant importance or where there is a substantial question of law of general public importance. In examining the FWC's decision, the court assessed whether it contained errors of law or whether there was any miscarriage of justice. The court found no grounds to grant special leave to appeal, concluding that the FWC's decision was within its jurisdiction, and no substantial question of law was evident. The court held that the FWC had correctly interpreted and applied the relevant law to the facts of the case.

Consequently, the court refused permission to appeal the FWC's decision. The legal principles and the FWC's interpretation of the relevant legislation were found to be sound, and there was no basis for further judicial intervention. The court's decision underscored the limited scope of judicial review in employment matters and the deference owed to the FWC's expertise in labour law.

Orders