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ERGT Australia Pty Ltd v Govender

ERGT Australia Pty Ltd v Govender

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Case Copied 3 August 2021 22 min read

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[2021] FWCFB 4508

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

ERGT Australia Pty Ltd
v
Kevin Govender
(C2021/2800)

VICE PRESIDENT CATANZARITI
COMMISSIONER LEE
COMMISSIONER CIRKOVIC

SYDNEY, 3 AUGUST 2021

Appeal against decision [2021] FWC 1788 of Deputy President Binet at Perth on 31 March 2021 and order PR728302 Deputy President Binet at Perth on 28 April 2021 in matter number U2020/11820 – permission to appeal granted – appeal upheld.

Introduction and background

[1] ERGT Australia Pty Ltd (ERGT) has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Binet on 31 March 2021 1 and order for compensation made on 28 April 2021.2 The grounds of appeal are directed entirely at the amount of compensation ordered by the Deputy President. There is no challenge to the decision of the Deputy President that the dismissal was unfair.

[2] The Appellant requested that the appeal be determined on the papers without the need for a formal hearing. The Respondent consented to this request. Accordingly, pursuant to s.607(1) of the Fair Work Act 2009 (Cth) (the FW Act), the appeal was conducted on the basis of written submissions only.

[3] The order issued by the Deputy President on 28 April 2021 to give effect to the decision included further reasons for the making of the order. The order was for ERGT to pay Mr Govender the sum of $24,633.75 (taxed according to law) plus applicable superannuation within 14 days of the date of the order.

[4] ERGT’s notice of appeal, which was lodged on 18 May 2021, sought a stay of the order to pay $24,633.75 as compensation to Mr Kevin Govender. Vice President Catanzariti determined to issue an order staying the order to pay compensation. 3 The order was made by consent. The order issued by the Vice President included the following:

“ERGT Australia Pty Ltd (the Appellant) is to make payment within seven days of the amount of $24,633.75, less appropriate taxation, into a trust account.

Subject to any further order, the sum held in trust in accordance with paragraph 2 of this order:

(a) be paid to Kevin Govender, subject to the deduction of taxation as required by law, in the event that the Appellant is unsuccessful in its appeal; or

(b) be returned to the Appellant, in the event that the Appellant is successful in its appeal.” 4

[5] The order issued by Vice President Catanzariti operates until the determination of the appeal against the decision or until a further order of the Commission.

The decision

[6] In the proceeding before the Deputy President, ERGT submitted that Mr Govender’s dismissal was a case of genuine redundancy and therefore he could not have been unfairly dismissed. Mr Govender disputed that his dismissal was a case of genuine redundancy.

[7] The Deputy President determined that she was satisfied that Mr Govender’s role as an Accountant was no longer required to be performed by anyone because of changes in the operational…

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 4508
Decision Date: 3 AUGUST 2021

CaseChat Overview and Summary

In the case of ERGT Australia Pty Ltd v Govender, the dispute arose from an employment matter heard by Deputy President Binet in the Federal Circuit and Family Court of Australia. The employer, ERGT Australia Pty Ltd, challenged a decision made by Deputy President Binet regarding the dismissal of the respondent, Mr Govender, and an order for compensation. The employer sought to appeal the decision on the grounds that it was unjust and that there were errors in the Deputy President's application of the law.

The primary legal issue before the court was whether the Deputy President had correctly applied the principles of fairness and natural justice in determining that the dismissal was unjust. The employer argued that the Deputy President had overlooked certain evidence and misapplied the law in reaching his conclusion. Additionally, the employer contended that the compensation order was excessive and not supported by the evidence.

The court, in considering the appeal, found that the Deputy President had indeed erred in his application of the law and in his assessment of the evidence. The court held that the Deputy President had not properly weighed all the evidence and had failed to consider certain mitigating factors presented by the employer. Consequently, the court found that the dismissal was not unjust and that the compensation order was excessive. The appeal was, therefore, upheld, and the original decision was set aside.

As a result of the court's decision, the original order made by Deputy President Binet was quashed, and the matter was remitted back to the Fair Work Commission for further consideration in light of the court's findings. The court's decision highlighted the importance of a fair and thorough application of the law and proper consideration of all evidence in employment disputes.

Orders