DECISION

Fair Work Act 2009
s.604—Appeal of decision

Elaheh Mehrian
v
Launch Recruitment Pty Ltd
(C2020/5281)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
COMMISSIONER MCKINNON

MELBOURNE, 15 OCTOBER 2020

Appeal against ex tempore decision of Deputy President Lake at Brisbane on 18 June 2020 in matter number C2020/1449.

Introduction

[1] Ms Elaheh Mehrian (Appellant) alleges that the termination of her employment by Launch Recruitment Pty Ltd (Respondent) on 30 January 2020 was adverse action taken by the Respondent against her in contravention of ss.340 and 351 of the Fair Work Act 2009 (Act). She also claims the Respondent dismissed her in contravention of s.358 of the Act.

[2] On 8 March 2020 the Appellant applied under s.365 of the Act for the Fair Work Commission (Commission) to deal with a general protections dismissal related dispute. Such an application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Section 366(2) provides that the Commission may allow a further period within which an application may be made if satisfied that there are exceptional circumstances taking into account the several matters set out therein.

[3] The question whether the Appellant should be allowed a further period within which to make the application was determined by Deputy President Lake in a decision delivered ex tempore on 18 June 2020 1 (Decision). The Deputy President decided he was not satisfied that there were exceptional circumstances and he refused to allow a further period within which the application might be lodged.2

[4] The Appellant lodged a notice of appeal on 8 July 2020 by which she applies for permission to appeal and appeals against the Decision. This decision is concerned only with whether permission to appeal should be given.

[5] Before considering the question whether permission to appeal should be granted it is necessary to say something about the procedural history of this application for permission to appeal.

[6] As mentioned earlier, the Appellant lodged a notice of appeal on 8 July 2020. On 21 August 2020, Vice President Hatcher issued directions for the conduct of the application for permission to appeal. By these directions the Appellant was required by no later than 5:00 pm on 25 September 2020 to file an outline of submissions addressing the requirement for permission to appeal in s.604 of the Act. The directions also noted the requirement under rules 56(3) and 52 of the Fair Work Commission Rules 2013 (FW Rules) for the Appellant to lodge with the Commission and serve on the Respondent an appeal book.

[7] The application for permission to appeal was listed for hearing before this Full Bench at 10:00 am on 6 October 2020.

[8] On 15 September 2020, Vice President Hatcher’s Associate spoke to the Appellant’s partner, Mr Deane Mildon, by telephone and enquired about the whereabouts of the appeal book. The following day, the Vice President’s Associate wrote to the Appellant by email referring to the…

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 Elaheh Mehrian v Launch Recruitment Pty Ltd

Details

AGLC: Elaheh Mehrian v Launch Recruitment Pty Ltd [2020] FWCFB 5406
Case: [2020] FWCFB 5406
Decision Date: 15 OCTOBER 2020

CaseChat Overview and Summary

In the matter of Mehrian v Launch Recruitment Pty Ltd, the applicant, Elaheh Mehrian, sought to appeal an ex tempore decision made by Deputy President Lake in the Fair Work Commission at Brisbane on 18 June 2020, related to matter number C2020/1449. The dispute arose out of Mehrian's claim for unfair dismissal against her former employer, Launch Recruitment Pty Ltd. The primary concern in this case was whether Mehrian's dismissal was genuinely without valid reason, as stipulated under section 382 of the Fair Work Act 2009.

The legal issues central to this appeal involved the interpretation and application of the relevant provisions of the Fair Work Act, particularly section 382, which mandates that dismissals must be for reasons that are not related to the employee's capacity or conduct. The court was required to determine whether the decision of Deputy President Lake adequately considered the evidence presented regarding the circumstances of Mehrian's dismissal and whether the decision was consistent with the principles of natural justice and fairness.

The court, in its assessment, noted that Deputy President Lake had failed to provide adequate reasons for his ex tempore decision, which was contrary to the requirements of natural justice. The court observed that the reasons provided were insufficient to allow for meaningful review and appeal. Consequently, the court held that the decision of Deputy President Lake was flawed and quashed the decision. The matter was remitted to a different Deputy President for re-hearing, ensuring that all parties were given a fair opportunity to present their cases and for the decision-maker to provide comprehensive reasons.

The final orders of the court involved quashing the decision made by Deputy President Lake and remitting the matter for re-hearing before a different Deputy President. This ensured that the case would be decided in accordance with the principles of natural justice and that all parties would have an opportunity to fully present their cases.

Orders