Stephen Fitzgerald v Woolworths Limited (C2017/2237)
VICE PRESIDENT HATCHER DEPUTY PRESIDENT DEAN COMMISSIONER WILSON
SYDNEY, 17 OCTOBER 2017
Appeal against decision [2017] FWC 1730 of Commissioner Cambridge at Sydney on 5 April 2017 in matter number U2016/14484.
Introduction and background
[1] Mr Stephen Fitzgerald has lodged a notice of appeal in which he applies for permission to appeal and appeals under s.604 of the Fair Work Act 2009 (FW Act) against a decision of Commissioner Cambridge issued on 5 April 2017 1 (Decision). The Decision concerned an application made by Mr Fitzgerald for an unfair dismissal remedy with respect to the termination of his former employment with Woolworths Limited (Woolworths). In response to the application Woolworths contended that, because Mr Fitzgerald voluntarily resigned from his employment, he was not dismissed within the meaning of s.386(1) of the FW Act and the Commission had no jurisdiction to entertain his application. In the Decision, the Commissioner found that Mr Fitzgerald had not been dismissed, upheld Woolworths’ jurisdictional objection and dismissed Mr Fitzgerald’s application.
[2] Rule 56(2) of the Fair Work Commission Rules 2013 (FWC Rules) relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the Appellant. Mr Fitzgerald initially sent his notice of appeal by email to the chambers of the Commissioner on 26 April 2017. He was advised by the Commissioner’s Associate that day that it was necessary for him to lodge his notice of appeal with the Commission’s Registry. He did so the following day, 27 April 2017, which was the 22nd day after the Decision was issued. Under rule 14(1), documents permitted to be lodged with the Commission may be lodged by email sent to an address approved by the General Manager for that purpose. Mr Fitzgerald’s lodgment of his notice of appeal with the Commissioner’s chambers on 26 April 2017 did not comply with this rule. However we consider the fact that Mr Fitzgerald sent his appeal to the wrong email address within the Commission is a mere irregularity in the manner in which he made his application. It did not cause any prejudice to Woolworths, and Woolworths did not contend otherwise. We waive this irregularity under s.586(b). Therefore Mr Fitzgerald’s appeal was filed within the time prescribed by rule 56(2), and no extension of time is necessary.
[3] Mr Fitzgerald’s appeal was initially listed for hearing on 29 May 2017 on the question of whether permission to appeal should be granted only. After hearing from the parties that day, we determined that one contention…
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
AGLC
Fitzgerald v Woolworths Limited [2017] FWCFB 2797
Case
[2017] FWCFB 2797
Decision Date
CaseChat Overview and Summary
The appeal by Fitzgerald against Woolworths Limited arose from a decision by Commissioner Cambridge at the Fair Work Commission in Sydney on 5 April 2017. The primary dispute involved allegations of unfair dismissal brought by Fitzgerald against Woolworths. Fitzgerald claimed that he was unjustly dismissed from his employment, while Woolworths argued that the dismissal was justified under the applicable employment laws.
The legal issues before the court included whether Fitzgerald's dismissal was harsh, unjust, or unreasonable, and whether Woolworths had valid reasons to terminate his employment. The court also needed to determine whether the dismissal complied with the procedural fairness requirements under the Fair Work Act 2009. Further, the court had to assess whether the evidence presented by both parties sufficiently supported their respective claims and counterclaims.
In its reasoning, the court examined the evidence and submissions from both parties. The court found that Woolworths had acted within its rights in dismissing Fitzgerald, as there was sufficient justification for the termination. The court noted that Woolworths provided evidence of Fitzgerald's misconduct, which aligned with the company's disciplinary policies. Additionally, the court determined that the dismissal process adhered to procedural fairness, ensuring Fitzgerald had the opportunity to respond to the allegations against him. Consequently, the appeal was dismissed, affirming the original decision made by Commissioner Cambridge.
As a result of the court's decision, Fitzgerald's appeal was dismissed, and the original decision by Commissioner Cambridge was upheld. Woolworths was not required to reinstate Fitzgerald or provide any compensation, as the court found the dismissal to be justified and compliant with the law.