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Hewitt v Topero Nominees Pty Ltd

Hewitt v Topero Nominees Pty Ltd

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[2013] FWCFB 6321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Ms Delwyn Hewitt
v
Topero Nominees Pty Ltd T/A Michaels Camera Video Digital
(C2013/5100)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER JOHNS

MELBOURNE, 3 SEPTEMBER 2013

Appeal against decision [2013] FWC 3711 - s.604 Fair Work Act 2009 - public interest - permission to appeal granted - general protections dismissal dispute - s.365 - Commission not required to determine whether the applicant was dismissed - appeal upheld - decision quashed.

Introduction

[1] Ms Delwyn Hewitt (the appellant) resigned from her employment with Topero Nominees Pty Ltd t/as Michaels Camera Video Digital (the respondent) on 29 October 2012. On 9 January 2013 Ms Hewitt made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). Ms Hewitt contended that she was forced to resign her employment because of the respondent’s conduct. The application was made within the time prescribed in s.366 and was accompanied by the prescribed fee (see s.367).

[2] In a decision of 19 June 2013, the Commissioner concluded:

“... that the Applicant was not dismissed from her employment. A dispute of requisite kind for an application under s.365 of the Act therefore does not exist. The Commission therefore has no power to issue a certificate as required under s.369 of the Act.” 1

[3] The effect of the Commissioner’s decision is that Ms Hewitt is unable to pursue her general protections application in the Court, because of the operation of s.371(1)(a) of the Act.

[4] Ms Hewitt has appealed the Commissioner’s decision. Rule 12 of the Fair Work Australia Rules 2010 deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision subject to appeal. The appeal was filed on 11 July 2013, one day out of time. Rule 12.3(b) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.

[5] We have decided to extend the time for the lodgement of the appeal having regard to the following matters: the appeal was only filed one day out of time; the delay was occasioned by representative error; the public interest in having the appeal heard; and the merits of the appeal itself.

The Appeal

[6] An appeal under s.604 is an appeal by way of rehearing and the tribunal’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2

[7] An appeal may only be made with the permission of the Commission. Sub-section 604(2) provides:

“604 Appeal of decisions

...

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section…

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: [2013] FWCFB 6321
Decision Date: 3 SEPTEMBER 2013

CaseChat Overview and Summary

Hewitt, an employee, appealed a decision of the Full Bench of the Fair Work Commission in relation to his claim of unfair dismissal against Topero Nominees Pty Ltd. The applicant contended that the Commission erred in its decision [2013] FWC 3711 by not determining whether he was dismissed and by not granting him reinstatement and compensation. The Full Bench had upheld the dismissal of his general protections claim. The primary concern for the court was whether the Full Bench had correctly exercised its discretion in declining to determine the dismissal issue and whether the Full Bench had erred in not granting him reinstatement and compensation. The court found that the Full Bench had exercised its discretion correctly and that there was no error in not determining the dismissal issue. The Full Bench had considered the appropriate remedy and had decided not to grant reinstatement or compensation. The court upheld the appeal and quashed the decision of the Full Bench, ordering that the matter be remitted to the Full Bench for consideration of the appropriate remedy.

Orders