DECISION

Fair Work Act 2009
s 604 - Appeal of decisions

Federation Training
v
Mr Peter Sheehan
(C2018/75)

DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT BINET
COMMISSIONER PLATT

SYDNEY, 22 MARCH 2018

Appeal against decision [2017] FWC 5789] of Deputy President Masson at Melbourne on 19 December 2017 in matter number U2017/657 – dismissal ‘harsh and unjust’ – compensation ordered – permission to appeal and appeal – no public interest in granting permission to appeal – permission refused.

INTRODUCTION

[1] On 5 January 2018, Federation Training (the ‘appellant’) lodged an appeal, for which permission to appeal is required from the Full Bench of the Fair Work Commission (the ‘Commission’) under ss 400 and 604 of the Fair Work Act 2009 (the ‘Act’). The appeal is against a decision and order of Deputy President Masson of 9 December 2017 in Sheehan v Federation Training [2017] FWC 5789 (the ‘Decision’). The Deputy President ordered that the appellant pay compensation to Mr Peter Sheehan (‘Mr Sheehan’ or the ‘respondent’) of $15,792.52 plus superannuation, following his findings that his dismissal by the appellant on 30 May 2017 was ‘harsh and unjust’, within the meaning of section 387 of the Act.

[2] The appeal was listed for hearing as to permission to appeal and the merits of the appeal before the Full Bench in Melbourne on 6 February 2018. We note that a stay of the Deputy President’s Decision was earlier sought by the appellant and consent orders were made by His Honour the President, Ross J on 15 January 2018 [PR599412].

[3] At the appeal, Ms K Jones of Counsel represented the appellant and Ms F Knowles of Counsel, instructed by the Australian Education Union, appeared for the respondent, Mr Sheehan. We decided, taking into account the submissions of both parties, and in the absence of any objections from either party opposing legal representation of the other, leave to be legally represented be granted to both parties, pursuant to section 596(2)(a) and (c) of the Act.

THE DECISION

[4] The Deputy President set out the background to the matter in detail at [13]-[38] of the Decision. This background can be summarised as follows:

a. Until his dismissal, Mr Sheehan had been employed by Federation Training, or its predecessors, since 25 July 1982 as a teacher engaged in apprentice and trade training.

b. On 15 July 2016, Mr Sheehan was issued with a final warning in relation to an incident in which he was found to have punched a cupboard in circumstances which intimidated another employee.

c. On 6 March 2017, Mr Sheehan received a letter advising him that a complaint had been made about his conduct on 21 February 2017 (the ‘Allegation Letter’). The complaint alleged Mr Sheehan had gathered two classes together, without consulting with the teacher in charge of the other class, and confronted the students using derogatory language in relation to his concerns about a door, which he believed had been unsafely propped open.

d.…

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: [2018] FWCFB 1679
Decision Date: 22 MARCH 2018

CaseChat Overview and Summary

Federation Training has appealed against a decision of Deputy President Masson, who found that the dismissal of Mr Peter Sheehan was harsh, unjust or unreasonable and ordered compensation. The appeal was heard in the Full Bench of the Fair Work Commission. The central issue before the Full Bench was whether the Deputy President's findings were unreasonable, given the evidence presented. The Full Bench was required to assess whether the Deputy President's conclusions on the harshness, injustice, or unreasonableness of the dismissal were justified by the evidence, and if the compensation ordered was appropriate.

The Full Bench found that the Deputy President's decision was based on a proper consideration of the evidence and the applicable legal principles. The Full Bench concluded that the Deputy President's findings were reasonable and not in error. The Full Bench also found that there was no public interest in granting permission to appeal, as the decision did not involve any significant legal issues that required further clarification. The Full Bench therefore refused the appeal, affirming the original decision that the dismissal was harsh, unjust or unreasonable and that compensation should be paid to Mr Sheehan.

In summary, the Full Bench upheld the Deputy President's decision and refused the appeal. The Full Bench found that the Deputy President's decision was well-reasoned and based on the evidence, and that there was no public interest in granting permission to appeal. The Full Bench's decision is final and binding on the parties.

Orders