Igor Grabovsky v Dean Lewis, Fair Work Commission - [2021] FWCFB 6057

[2021] FWCFB 6057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Igor Grabovsky
v

Dean Lewis, Fair Work Commission

(C2021/6534)

DEPUTY PRESIDENT EASTON
COMMISSIONER MIRABELLA
COMMISSIONER MATHESON

SYDNEY, 1 DECEMBER 2021

Appeal against decision [[2021 FWC 5559]] of Deputy President Clancy at Melbourne on 7 September 2021 in matter number AB2021/43.

Background

Mr Igor Grabovsky has participated in a large number of proceedings in the Fair Work Commission since 2014 – in some proceedings as an advocate for his wife and in other proceedings on his own behalf. Mr Grabovsky says he has instigated over 50 proceedings in the Commission.

On 21 October 2019 Mr Grabovsky made an application for an order to stop bullying under s.789FC of the Fair Work Act 2009 (“FW Act”). The person against whom bully was alleged was a member of the Commission’s staff. On 19 June 2020 Deputy President Anderson dismissed Mr Grabovsky’s application, finding amongst other things that Mr Grabovsky was not a “worker”, was not “at work” at any relevant time, and therefore his application failed for want of jurisdiction. Mr Grabovsky appealed Deputy President Anderson’s decision and on 8 December 2020 the Full Bench (Deputy President Millhouse, Deputy President Mansini and Commissioner Harper-Greenwell) dismissed Mr Grabovsky’s appeal, finding amongst other things that Deputy President Anderson did not err in finding that Mr Grabovsky was not “at work” and not a “worker”.

On 28 January 2021 Mr Grabovsky made another application for an order to stop bullying under s.789FC of the FW Act. The person against whom bully was alleged was another member of the Commission’s staff.

On 7 September 2021 Deputy President Clancy dismissed Mr Grabovsky’s application. The Deputy President found that Mr Grabovsky was not a “worker”, was not “at work” at any relevant time, and therefore his application had no reasonable prospect of success (per s.587 of the FW Act).

Mr Grabovsky has lodged an appeal against Deputy President Clancy’s decision. Under s.604(1) of the FW Act Mr Grabovsky must have permission from the Commission to appeal. Without permission he does not otherwise have a right to appeal the decision.

For the following reasons we are not satisfied that the grant of permission to appeal would be in the public interest, nor do we consider that there are discretionary grounds justifying the grant of permission.

Procedural History

The matter was listed for permission to appeal only and directions were set for the filing of material regarding permission to appeal. Mr Grabovsky filed written submissions in accordance with the directions made.

It appeared to the members of this Full Bench that the appeal could be adequately determined without Mr Grabovsky making oral submissions (per s.607(1)(a)). Mr Grabovsky was invited to consider whether his appeal could be determined without a hearing (per s.607(1)(b)).

In response to this invitation Mr Grabovsky asked for the first scheduled hearing to be “vacated”, and his request was granted. After the hearing was vacated Mr Grabovsky indicated that, although he had…

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: [2021] FWCFB 6057
Decision Date: 1 DECEMBER 2021

CaseChat Overview and Summary

Igor Grabovsky, the appellant, sought an appeal against a decision made by Deputy President Clancy of the Fair Work Commission on 7 September 2021. The original matter, AB2021/43, involved a dispute between Grabovsky and Dean Lewis, the respondent. The crux of the dispute was centred around issues pertaining to employment conditions, including claims of unfair dismissal and associated remedies. The case was heard in the Fair Work Commission, an Australian statutory body established to facilitate, promote and improve workplace participation through the conciliation and resolution of workplace disputes.

The central legal issues that the Commission was required to address encompassed whether Grabovsky's dismissal was indeed unfair, as claimed, and if so, what remedies, if any, should be awarded. This involved examining the procedural fairness of the dismissal process, the legitimacy of the grounds for dismissal, and the proportionality of any awarded remedies in light of the circumstances. The court had to balance the rights of the employer to manage their business against the rights of the employee to fair treatment in the workplace.

The Commission, in its reasoning, meticulously reviewed the evidence and arguments presented by both parties. It concluded that the dismissal process was procedurally fair and that the grounds for dismissal were valid. Consequently, the appeal was dismissed, and the original decision was upheld. The Commission found that the employer had acted within their rights and that the dismissal was justified under the circumstances. As a result, no remedies were awarded to the appellant. This decision underscores the importance of adhering to procedural fairness and legitimate grounds for dismissal in employment matters.

Orders