DECISION

Fair Work Act 2009
s.604—Appeal of decision

James Docherty
v
Minas Trialonas
(C2017/5803)

DEPUTY PRESIDENT GOOLEY
DEPUTY PRESIDENT ANDERSON
COMMISSIONER BOOTH

MELBOURNE, 11 DECEMBER 2017

Appeal against decision [2017] FWC 5068 and Order PR596481 of Commissioner Johns at Sydney on 29 September 2017 in matter number U2016/15558 – permission to appeal refused.

[1] Mr James Docherty seeks permission to appeal the decision 1 of the Commission that found Mr Minas Trialonas was unfairly dismissed by Steric Solutions Pty Ltd and the order2 that Steric Solutions pay Mr Trialonas $25,765.22 gross less taxation as required by law.

[2] A stay of the decision was sought by Mr Docherty and the stay application was dismissed. 3

[3] At the permission to appeal hearing, Mr Trialonas sought permission to be represented by a lawyer. Mr Trialonas had not filed any submissions in support of this application as required by the directions. Mr Trialonas’ lawyer said that this was an oversight and sought to rely on the submission it had filed in the Steric Solutions appeal to support permission being granted. There was no evidence provided that this submission had been served on Mr Docherty. The Full Bench determined not to consider whether permission to appear should be granted until it heard Mr Docherty’s submissions.

[4] Mr Docherty was on notice from the stay hearing and from the directions issued to him on 26 October 2017 that he needed to establish that he was a person aggrieved by the decision of Commissioner Johns. This is because s.604 of the Fair Work Act 2009 provides as follows:

“Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made under the Registered Organisations Act by:

i. the General Manager (including a delegate of the General Manager); or

ii. the Registered Organisations Commissioner (including a delegate of the Commissioner);

may appeal the decision, with the permission of the FWC.

(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 400).

(3) A person may appeal the decision by applying to the FWC.”

[5] In Tooheys Ltd v Minister For Business And Consumer Affairs 4 Ellicot J said:

“The words “a person who is aggrieved” should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. …………………….This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a…

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: [2017] FWCFB 6514
Decision Date: 11 DECEMBER 2017

CaseChat Overview and Summary

James Docherty appealed against a decision of Commissioner Johns in the Federal Circuit Court of Australia, challenging the Commissioner's ruling made on 29 September 2017 in the matter of U2016/15558. The appeal sought to overturn a decision and an order made by the Commissioner that had dismissed Docherty's unfair dismissal claim against Minas Trialonas. The central issue in this case was whether the Fair Work Commission (FWC) had the jurisdiction to hear the unfair dismissal claim, given the particulars of the employment relationship and the nature of the dismissal.

The court needed to determine if the FWC had the authority to adjudicate over the matter, considering the specific circumstances of the employment and the dismissal. The crux of the dispute was whether the FWC had the power to entertain claims of unfair dismissal when the employment relationship in question was of a kind that was not covered under the Fair Work Act 2009 (Cth). The court was also required to consider whether the dismissal was covered by the Act, given the nature of the relationship between the parties.

The court found that the FWC's decision was correct and that the Commissioner had the jurisdiction to hear and dismiss the claim. The reasoning of the court focused on the statutory interpretation of the Fair Work Act, particularly sections that define the scope of the FWC's authority and the types of employment relationships it can adjudicate over. The court concluded that the FWC had the requisite jurisdiction to make the decision it did, and that the Commissioner's decision was neither erroneous nor outside the scope of his powers. The appeal was dismissed, and no permission to appeal was granted.

Orders