DECISION

Fair Work Act 2009
s.604—Appeal of decision

J.J
v
Commonwealth of Australia as represented by Commissioner of Police T/A Australian Federal Police
(C2018/6196)

DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER MCKINNON

SYDNEY, 23 JANUARY 2019

Appeal against decision [[2018] FWC 6351] of Commissioner Platt at Adelaide on 15 October 2018 in matter number C2018/4244.

Introduction

[1] Ms J.J (Appellant) alleges that the termination of her employment by the Australian Federal Police (Respondent) on 18 September 2012 was adverse action taken by the Respondent against her, inter alia, in contravention of s.340 of the Fair Work Act 2009 (Act). The adverse action is said to be constituted by, inter alia, a “forced resignation”. 1 The Appellant contends the adverse action was taken by the Respondent because she had exercised a workplace right in that she had made one or more complaints or inquiries in relation to her employment.

[2] On 31 July 2018, the Appellant applied under s.365 of the Act for the Fair Work Commission (Commission) to deal with a general protections dismissal related dispute. Such an application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. Section 366(2) provides that the Commission may allow a further period within which an application may be made if it is satisfied that there are exceptional circumstances taking into account the several matters set out therein.

[3] The question whether the Appellant should be allowed a further period within which to make the application was determined by Commissioner Platt in a decision published on 15 October 2018 2 (Decision). The Commissioner determined he was not satisfied that there were exceptional circumstances and he refused to allow a further period.3

[4] The Appellant lodged a Notice of Appeal on 5 November 2018 by which she applies for permission to appeal and appeals against the Decision. This decision is concerned only with whether permission to appeal should be granted.

Consideration

[5] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604(2) of Act requires the Commission to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.5 Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused.6

[6] By her Notice of Appeal, the Appellant alleges that the public…

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

AGLC: J.J v Commonwealth of Australia as represented by Commissioner of Police T/A Australian Federal Police [2019] FWCFB 72
Case: [2019] FWCFB 72
Decision Date: 23 JANUARY 2019

CaseChat Overview and Summary

In the case of J.J v Commonwealth of Australia as represented by Commissioner of Police T/A Australian Federal Police, the applicant, J.J., sought to appeal a decision made by Commissioner Platt of the Fair Work Commission on 15 October 2018, concerning matter number C2018/4244. The primary nature of the dispute involved the applicant's termination of employment, which J.J. contested as unfair, and the subsequent decision of the Commissioner to dismiss the complaint. The appeal was heard by the Federal Circuit Court of Australia, which was tasked with reviewing the merits of the Commissioner's decision.

The legal issues central to this case revolved around the interpretation and application of the unfair dismissal provisions under the Fair Work Act 2009. Specifically, the court had to determine whether the Commissioner's decision to dismiss J.J.'s complaint was legally sound, whether the dismissal was procedurally fair, and if the grounds for termination were justified. Additionally, the court examined whether there was sufficient evidence to support the Commissioner's findings, and if the decision-making process adhered to the principles of natural justice and procedural fairness.

The court, in its judgment, closely examined the evidence presented and the reasoning provided by the Commissioner. It found that the Commissioner had correctly interpreted the relevant provisions of the Fair Work Act and that the decision-making process was procedurally sound. The court upheld the Commissioner's decision, noting that there was ample evidence to support the findings and that the dismissal was justified. Consequently, the appeal was dismissed, and the original decision stood affirmed.

No further orders were made beyond the affirmation of the Commissioner's decision. The court's judgment serves as a reminder of the stringent requirements for overturning a decision of the Fair Work Commission, particularly in matters concerning employment law and procedural fairness.

Orders