Eliana Construction and Developing Group Pty Ltd v Leyla Moghimi - [2015] FWCFB 7476

[2015] FWCFB 7476 [Note: refer to the Federal Court decision dated 18 August 2016 [2016] FCAFC 113 for result of appeal

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Eliana Construction and Developing Group Pty Ltd

Leyla Moghimi

(C2015/5674)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER JOHNS

MELBOURNE, 6 november 2015

Appeal against decision [[2015] FWC 4864] of Commissioner Roe at Melbourne on 23 July 2015 in matter number U2015/2893 – Permission to appeal – Whether grounds of appeal attract the public interest – Permission to appeal not granted – Fair Work Act 2009 – ss. 394, 400 and 604.

Introduction

On 23 July 2015 Commissioner Roe issued a decision[1] and order[2] granting an application made by Leyla Moghimi under s.394 of the Fair Work Act 2009 (the Act). On 13 August 2015 Eliana Construction and Developing Group Pty Ltd (Eliana) lodged an appeal against the decision and order.

Eliana was directed to file and serve an outline of submissions addressing the issue of why it is in the public interest to grant permission to appeal, and if the appeal is on a question of fact, what is the significant error of fact involved in the decision. The matter was listed for hearing on 27 October 2015.

As the application arises from an unfair dismissal decision, s.400 applies to the appeal. That section provides:
“400 Appeal rights

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’.[3] The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.

Factors that might invoke the public interest have been held to include where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counterintuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[4]

Submissions of appellant

Eliana submitted that too much weight was placed on the issue of family violence committed outside the workplace, that it acted reasonably and diligently in not terminating the employment of Ms Moghimi’s former partner as requested, that family violence is an important issue as are institutional responses, and other…

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: [2015] FWCFB 7476
Decision Date: 6 NOVEMBER 2015

CaseChat Overview and Summary

Eliana Construction and Developing Group Pty Ltd appealed against a decision of Commissioner Roe in the Fair Work Commission, seeking to overturn a ruling that had been made against them. The respondent, Leyla Moghimi, was an employee of Eliana Construction who had lodged a claim for unfair dismissal and various other entitlements. The Commission found in favour of Moghimi, leading to the present appeal. The appeal was heard in the Federal Circuit Court of Australia.

The central issue in the appeal was whether the grounds presented by Eliana Construction were sufficient to warrant an appeal on the basis of public interest, as required by the Fair Work Act 2009. The appellant argued that the decision contained errors in law and procedure, and that it was in the public interest to allow an appeal because of the potential implications for similar cases in the future. The respondent contended that the appeal did not meet the threshold for public interest and should be dismissed.

The court examined the grounds of appeal and found that they did not demonstrate the necessary public interest required to permit an appeal. The court held that the issues raised were largely about the interpretation and application of existing legal principles rather than introducing new legal concepts or addressing significant ambiguities in the law. Consequently, the court ruled that the appeal did not meet the statutory criteria under section 394 and 400 of the Fair Work Act 2009. The appeal was therefore dismissed, and the original decision of the Commission stood.

No further orders were made by the court, and the decision of the Fair Work Commission remained in effect.

Orders