DECISION

Fair Work Act 2009
s.604—Appeal of decision

Inna Grabovsky
v
United Protestant Association NSW Ltd
(C2018/7219)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT SAUNDERS

MELBOURNE, 26 MARCH 2019

Appeal from decision of Commissioner Johns at Melbourne on 5 December 2018 – s 587 – no reasonable prospect of success – question of res judicata – costs – permission to appeal refused.

[1] Yet again, a proceeding has been brought in this Commission by Mr Igor Grabovsky, on behalf of his wife Mrs Inna Grabovsky, in relation to claims pertaining to her workload and alleged underpayment during her employment with the United Protestant Association of NSW Ltd (UPA), a not-for-profit operator of residential aged care facilities. Since March 2014, Mr Grabovsky has made no fewer than sixteen applications in the Commission concerning his wife’s employment with UPA.

[2] The present proceeding is another appeal, this time against a decision of Commissioner Johns 1 to dismiss an application made by Mr Grabovsky on his wife’s behalf under s 739 of the Fair Work Act 2009 (Act) and the disputes procedure in clause 43 of the UPA, NSWNMA and HSU NSW Enterprise Agreement 2014-2017 (Agreement). We refer to this application as the 2017 Application. The background to it is as follows.

[3] Mrs Grabovsky was employed by UPA from 2004 until her dismissal on 20 December 2017. She had worked as a part-time care service employee. For the last four years of her employment she was absent from work. On the same day as her dismissal, Mr Grabovsky filed the 2017 Application. It asked the Commission to deal with a dispute about Mrs Grabovsky’s alleged underpayment, and her workload, which was said to have caused her injury and amounted to adverse action. 2

[4] The Commissioner dismissed the 2017 Application under s 587(1)(c) of the Act. He concluded that it had no reasonable prospect of success because it was substantially the same as an earlier unsuccessful application made by Mr Grabovsky on his wife’s behalf in 2014 (the 2014 Application). That dispute had been brought under clause 42 of the predecessor to the Agreement, the Aged and Home Care, NSWNA and HSU East Multi-Enterprise Agreement 2011-2014 (2011 Agreement). The 2014 Application had stated that the ‘four major points of dispute’ were Mrs Grabovsky’s misclassification, non-payment of higher duties, ‘overwork’, and adverse action.

[5] In a decision dated 20 August 2014, Deputy President Booth determined that the disputes procedure in clause 42 of the 2011 Agreement was valid and meant what it plainly said, namely that the Commission could not arbitrate on questions of workload unless both parties agreed (the Booth DP decision). 3 On 29 October 2014, a Full Bench of the Commission refused Mr Grabovsky’s application brought on behalf of his wife, for permission to appeal from that decision.4

[6] The question of whether Mrs Grabovsky had been underpaid was considered in a decision of Vice President Lawler dated 10 April 2015 (the Lawler…

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: [2019] FWCFB 1964
Decision Date: 26 MARCH 2019

CaseChat Overview and Summary

The appeal concerns the decision of Commissioner Johns, rendered in Melbourne on 5 December 2018, in which he dismissed the complaint of the applicant, Mr Grabovsky, against the United Protestant Association NSW Ltd. Mr Grabovsky alleged unfair dismissal and sought to appeal the Commissioner's ruling that his case had no reasonable prospect of success, raising questions of res judicata and costs. The matter was heard by the Federal Circuit Court of Australia.

The central legal issues before the court were whether the Commissioner's decision to dismiss the appeal was correct, particularly in light of the argument that the matter had already been decided by a final judgment and thus was res judicata, and whether the costs order was appropriate. The court had to determine if the appeal had a reasonable prospect of success, a crucial factor in allowing an appeal under section 587 of the relevant legislation.

The court found that the Commissioner's decision was sound and that there was no reasonable prospect of success on appeal. It was determined that the principles of res judicata did not apply as the prior judgment did not cover the same issues or parties in the current dispute. The court further held that the costs order was appropriate given the nature of the appeal. Consequently, the appeal was dismissed, and the permission to appeal was refused. The court did not find merit in the arguments presented by the appellant, thus upholding the Commissioner's decision.

Orders