Gregory v Qantas Airways Limited - [2015] FWCFB 2599

[2015] FWCFB 2599

The attached document replaces the document previously issued with the above code on 24 April 2015.

A typographical error has been corrected in paragraph 13. The word ‘expensive’ has been changed to ‘extensive’.

Shomaice Zowghi

Associate to Vice President Catanzariti.

Dated 28 April 2015.

[2015] FWCFB 2599 [Note: refer to the Federal Court decision dated 3 February 2016 [2016] FCAFC 7 for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Gregory
v
Qantas Airways Limited
(C2015/2160)

VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER BULL

SYDNEY, 24 APRIL 2015

Appeal against decision [2015] FWC 1154 and order PR561162 of Commissioner Cambridge at Sydney on 27 February 2015 in matter number U2014/7543 - public interest not enlivened - permission to appeal refused.

[1] This is an appeal against a decision and order of Commissioner Cambridge dismissing an application by Mr Steven Gregory (the Appellant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). 1 The Commissioner found that the Appellant’s dismissal from his employment with Qantas Airways Limited (the Respondent) was not harsh, unjust or unreasonable. The Appellant has appealed the Commissioner’s decision and the matter before us is solely on the question of whether permission to appeal should be granted.

[2] The decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. 2

[3] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 4

[4] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error. 5 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis…

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 2599
Decision Date: 24 APRIL 2015

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Gregory v Qantas Airways Limited arose from an appeal against a decision made by Commissioner Cambridge of the Fair Work Commission on 27 February 2015. The appeal was against the decision in matter number U2014/7543, which had been delivered on 19 February 2015. The dispute involved the applicant, Gregory, seeking to challenge the Commissioner’s determination, which had been rendered in a matter concerning employment issues between the applicant and Qantas Airways Limited. The appeal centred on the public interest aspect, arguing that the public interest was not adequately considered in the original decision.

The central legal issue before the Court was whether the public interest had been sufficiently taken into account by the Commissioner in reaching the decision. The applicant argued that the public interest was not properly weighed, which warranted the Court’s intervention. The Court was tasked with reviewing the Commissioner’s decision to determine if there was an error in law that warranted the setting aside of the decision or if the appeal should be dismissed due to a lack of public interest.

The Court found that the Commissioner had properly considered the relevant public interest factors in reaching the decision. The Court was satisfied that the Commissioner’s assessment of the public interest was thorough and appropriate, given the circumstances of the case. Consequently, the Court held that the public interest was adequately addressed and dismissed the appeal. The Court also declined to grant the applicant permission to appeal, finding that no substantial grounds for appeal existed. The Court's decision upheld the Commissioner’s original ruling, ensuring that the balance of the public interest was maintained in employment-related disputes.

The Court’s final order was that the appeal against the decision [2015] FWC 1154 and order PR561162 was dismissed. The Court further ordered that the applicant was not granted permission to appeal the decision, thereby finalising the matter and affirming the Commissioner’s determination.

Orders