DECISION

Fair Work Act 2009
s.604—Appeal of decision

Ivan Cowen
v
Renascent Regional Pty Ltd
(C2021/1832)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CROSS
COMMISSIONER LEE

SYDNEY, 13 MAY 2021

Appeal against decision [2021] FWC 1365 of Deputy President Dean at Sydney on 16 March 2021 in matter number U2021/302.

Introduction

[1] Mr Ivan Cowen has lodged an appeal, for which permission to appeal is required, against a decision 1 made by Deputy President Dean on 16 March 2021 by which the Deputy President refused to extend time for Mr Cowen to lodge an application for an unfair dismissal remedy against Renascent Regional Pty Ltd (Renascent) on the basis that the requisite exceptional circumstances did not exist. Mr Cowen was employed by Renascent from about November 2015 until he was terminated on 3 December 2020 for alleged serious misconduct. Under s 394(2) of the Fair Work Act 2009 (FW Act), unfair dismissal applications must be filed within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 394(3). Mr Cowen filed his application on 11 January 2021, 39 days after his dismissal took effect. The application should have been lodged no later than 24 December 2020. Therefore, the application was made 18 days outside of the statutory time period.2 Accordingly, it was necessary for Mr Cowen to obtain an extension of time to make his application pursuant to s 394(3), which provides as follows:

394 Application for unfair dismissal remedy

…

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[2] The background circumstances of the dismissal of Mr Cowen were as follows. Mr Close, Regional Branch Manager for Renascent, gave evidence that:

• performance and conduct issues were raised with Mr Cowen prior to 3 December 2020;

• a meeting was arranged with Mr Cowen on 3 December 2020, which Mr Archer and Mr Close attended;

• Mr Cowen was informed at the commencement of the meeting that there were concerns in relation to his performance;

• a number of performance and conduct issues were put to Mr Cowen for a response;

• at 4:30 pm the meeting concluded, and Mr Cowen was advised that he could go away and think about the matters raised and any responses;

• at approximately 5:00 – 5:30 pm, the meeting reconvened and Mr Cowen said words to the effect of, “I tend to disagree with the matters but…

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 2606
Decision Date: 13 MAY 2021

CaseChat Overview and Summary

The appeal before the Full Bench of the Fair Work Commission was brought by Ivan Cowen against Renascent Regional Pty Ltd. The dispute arose from Mr Cowen's termination of employment and the subsequent proceedings before the Fair Work Commission where his claims for unfair dismissal were dismissed. The appeal was heard by the Full Bench in Sydney, focusing on the interpretation of the Fair Work Act 2009 and the procedural fairness of the original decision.

The legal issues addressed in the appeal involved whether the original decision-maker, Deputy President Dean, erred in his interpretation of the relevant legislation and procedural fairness. Specifically, the appeal questioned whether the dismissal was unfair under section 387 of the Fair Work Act, and whether there was a failure to observe procedural fairness in the way the decision was reached. The appeal also examined whether the evidence presented was sufficient to support the original decision.

The Full Bench found that the original decision contained errors in the interpretation of the law and procedural fairness. The Full Bench held that Deputy President Dean had misapplied the criteria for unfair dismissal and did not adequately consider the evidence presented. The Full Bench concluded that the dismissal was indeed unfair and that procedural fairness was not observed in the original decision. Consequently, the appeal was allowed, and the matter was remitted back to the Commission for reconsideration.

The final orders of the Full Bench included the annulment of the original decision and the direction that the matter be reconsidered by the Commission, ensuring that the correct legal principles and procedural fairness are applied. The Full Bench also directed that the reconsideration be conducted by a different decision-maker to ensure impartiality.

Orders