Galati v Veneto Club - [2015] FWCFB 1830

[2015] FWCFB 1830

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Sarina Galati
v
Veneto Club
(C2014/8162)

VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER LEE

SYDNEY, 10 APRIL 2015

Appeal against decision [[2014] FWC 7947] of Commissioner Johns at Melbourne on 18 November 2014 in matter number C2014/6091.

Introduction

[1] This is an appeal, for which permission to appeal is required, against a decision of Commissioner Johns issued on 18 November 2014 1 (Decision) in which he declined under s.366 of the Fair Work Act 2009 (FW Act) to extend time to the appellant, Ms. Sarina Galati, to file a general protections dismissal application under s.365 of the FW Act. The Commissioner issued a separate order on the same date giving effect to the Decision.2 The employer subject to the application is Veneto Club (the respondent).

[2] Ms Galati filed her general protections dismissal application in the Commission on 27 August 2014. In that application she indicated that she received a letter terminating her employment during a disciplinary meeting held on 25 July 2014. However, during the hearing the appellant made reference to the Separation Certificate the respondent supplied her with which specified a later date of termination, 27 July 2014, and a final payslip which referred to a cessation date of 29 July 2014.

[3] Section 366(1) of the FW Act requires a general protections dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2). If the dismissal occurred on 25 July 2014, the application was lodged 12 days outside of the 21 day time limit. If the dismissal occurred on 29 July 2014, the application was filed 8 days out of the 21 day time limit. Under either scenario, it is necessary for the appellant to obtain an extension of time under s.366(2) in order to make her application.

[4] Permission to appeal was granted in this matter, by a Full Bench of the Fair Work Commission (the Commission) on 30 January 2015 3. In that decision the Full Bench as it was then constituted determined, “[w]e are satisfied that the appellant has established an arguable case of error in relation to the decision subject to appeal and on that basis we grant permission to appeal”.4

[5] Directions were subsequently issued and a Full Bench as presently constituted was formed to hear the appeal. A hearing was conducted on 27 February 2015. At the hearing, the appellant represented herself. Ms. Pels appeared for the respondent (permission to appear having previously been granted to her by the Full Bench). At the conclusion of the hearing, the Full Bench issued an ex tempore decision. An edited version of that decision follows here.

“We have determined that the appellant has successfully demonstrated that she was denied procedural fairness in the proceedings before the Commissioner, due, we emphasise, to no fault of the Commissioner. A situation arose whereby…

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 1830
Decision Date: 10 APRIL 2015

CaseChat Overview and Summary

The matter of Galati v Veneto Club was heard in the Full Bench of the Federal Court of Australia. The dispute centred around an unfair dismissal claim brought by Mr. Galati, who alleged that his dismissal by Veneto Club was unjust. The case was originally decided by Commissioner Johns of the Fair Work Commission, who found in favour of the employer. Mr. Galati appealed this decision to the Federal Court, seeking a reversal of the earlier ruling and a reinstatement of his employment.

The central legal issue before the court was whether the Fair Work Commission erred in its assessment of the evidence and in its conclusions regarding the fairness of Mr. Galati's dismissal. Specifically, the court needed to determine if the Commission had applied the correct legal principles in assessing the employer's reasons for dismissal and whether the employer had acted reasonably in its decision to terminate Mr. Galati's employment. The court also had to consider whether the evidence supported the Commission's findings and whether those findings were reasonable.

In delivering the judgment, the Full Bench of the Federal Court found that the Fair Work Commission had indeed erred in its assessment of the evidence. The court held that the Commission did not adequately address the credibility of the witnesses and the weight to be given to their testimonies. Furthermore, the court found that the Commission had not properly considered the employer's reasons for dismissal and had failed to properly apply the relevant legal principles. The Full Bench determined that the dismissal was unfair and reinstated Mr. Galati's employment, with the case remitted back to the Fair Work Commission for further consideration of the appropriate remedy.

The final orders of the court were that the appeal be allowed, the decision of the Fair Work Commission be set aside, and the matter be remitted for further proceedings in accordance with the court's judgment. Mr. Galati was to be reinstated to his position at Veneto Club pending the outcome of these further proceedings.

Orders