Evolving Support Services Pty Ltd v Ms Petra Molokac - [2024] FWCFB 428

[2024] FWCFB 428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Evolving Support Services Pty Ltd
v

Ms Petra Molokac

(C2024/4717)

VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT DEAN
DEPUTY PRESIDENT WRIGHT

SYDNEY, 11 NOVEMBER 2024

Appeal against decision [2024] FWC 1538 of Commissioner Simpson at Brisbane on 14 June 2024 in matter number U2024/3071 – extension of time required – factors to be taken into account in considering whether to extend time to appeal – whether reasonable explanation for delay – whether arguable case of appealable error demonstrated – allegation of criminal trespass – whether arguable that Commissioner erred in finding that no trespass had occurred – whether Commissioner took into account factors in s 392(2) in assessing amount of compensation – no arguable case of appealable error – extension of time refused – permission to appeal would have been refused in any event.

Introduction

Evolving Support Services Pty Ltd (Evolving or the appellant) has lodged a notice of appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission is required, from a decision of Commissioner Simpson of the Fair Work Commission (the Commission). The decision concerns an application for an unfair dismissal remedy brought under s 394 of the Act by Petra Molokac (Ms Molokac or the respondent).

The Commissioner found that there was no valid reason for Ms Molokac’s dismissal for the purposes of s 387(a) of the Act, that the process followed in effecting the dismissal was procedurally flawed and that Ms Molokac was provided with no opportunity to respond to the reasons for termination for the purposes of s 387(b). The Commissioner observed that the making of unfounded criminal allegations against Ms Molokac and the termination of her employment without notice or opportunity to respond caused her considerable distress and had a harsh impact on her. The Commissioner was, accordingly, satisfied that the dismissal was harsh, unjust and unreasonable. The Commissioner ordered that Evolving pay Ms Molokac the gross amount of $14,400 plus 11% superannuation within 21 days of the date of the decision.[1]

Evolving did not immediately appeal the decision of Commissioner Simpson. In accordance with rule 128(2) of the Fair Work Commission Rules 2024 (Cth) (the Rules), a party seeking to institute an appeal under s 604 of the Act must lodge a notice of appeal within 21 days of the date of the decision being appealed against or within such further time allowed by the Commission on application by the appellant. Evolving did not file its notice of appeal until 12 July 2024, which is seven days beyond the time limit.

For the reasons that follow, the application for an extension of time to lodge the notice of appeal is refused. Even if an extension of time was granted, permission to appeal would have been refused.

Background and decision under appeal

Evolving Support Services is a disability support provider. The Commissioner recorded in his decision that…

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 Evolving Support Services Pty Ltd v Ms Petra Molokac

Details

AGLC: Evolving Support Services Pty Ltd v Ms Petra Molokac [2024] FWCFB 428
Case: [2024] FWCFB 428
Decision Date: 11 NOVEMBER 2024

CaseChat Overview and Summary

Evolving Support Services Pty Ltd (Evolving) appeals against a decision of Commissioner Simpson of the Fair Work Commission (Commission) in which he found that Petra Molokac (Ms Molokac) was unfairly dismissed and ordered compensation of $14,400 plus 11% superannuation. The appeal is brought under s 604 of the Fair Work Act 2009 (Cth) (the Act) and requires permission of the Fair Work Commission Full Bench. The Full Bench must decide whether to grant an extension of time for Evolving to lodge its notice of appeal and, if so, whether to grant permission to appeal. The Full Bench finds that no arguable case of appealable error has been made out and, accordingly, refuses both the application for an extension of time and permission to appeal.

The grounds of appeal are that the Commissioner misinterpreted the facts in concluding that Ms Molokac's actions did not amount to trespass under Queensland legislation and that the order for compensation was made without proper consideration being given to the factors that must be taken into account in accordance with s 392(2) of the Act. The Full Bench is not satisfied that either ground raises an arguable case of appealable error. The Commissioner found that Ms Molokac had a legitimate purpose to enter the premises in order to collect her possessions and that there was no trespass. The Full Bench finds this conclusion was open to the Commissioner and was correct. The Commissioner properly considered the factors in s 392(2) of the Act in determining the amount of compensation. The Full Bench is satisfied that the Commissioner considered the remuneration Ms Molokac would have received, her efforts to mitigate the loss suffered by the person because of the dismissal and the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation. The Full Bench is not persuaded that it is in the interests of justice to allow further time for Evolving to lodge its notice of appeal. The application for an extension of time to do so should be refused. Even if the Full Bench were to allow further time for Evolving to file its notice of appeal, it would have refused permission to appeal.

Orders