DECISION

Fair Work Act 2009
s.604—Appeal of decision

James Sydney Willis
v
BE Imaging Pty Ltd T/A IRIS Imaging
(C2021/4981)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY
COMMISSIONER MATHESON

SYDNEY, 20 OCTOBER 2021

Appeal against decision [2021] FWC 4306 of Deputy President Lake at Brisbane on 29 July 2021 in matter number U2020/12418 – permission to appeal refused.

[1] Mr James Willis (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required against a decision 1 (the Decision) of Deputy President Lake (the Deputy President) issued on 29 July 2021. The Decision dealt with both an application for recusal and a jurisdictional objection to the Appellant’s application for an unfair dismissal remedy. In his Notice of Appeal, the Appellant indicated he was appealing only the Deputy President’s decision not to recuse himself and not the Deputy President’s ruling on the jurisdictional objection raised by IRIS Imaging (the Respondent). As such, this decision will deal only with the appeal against the Deputy President’s decision regarding the recusal application.

[2] Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and it did not do so.

[3] The appeal was subject to a telephone hearing on 7 October 2021. The Appellant appeared on his own behalf. Ms Oby Emchete of the Respondent appeared on the Respondent’s behalf.

[4] The Full Bench has heard the Appellant on the issue of permission to appeal. For the reasons that follow, permission to appeal is refused.

The Decision under appeal

[5] The matter before the Deputy President has had an unusual history. We will briefly summarise the sequence of events. The Deputy President had previously issued a decision (the Dismissal Decision) 2 dismissing the Appellant’s application for an unfair dismissal remedy as it appeared that the Appellant failed to comply with directions from the Deputy President’s Chambers. The Appellant appealed the Dismissal Decision. In the course of prosecuting the appeal, it came to the Commission’s attention that, through no fault of the Commission or the Appellant, the Appellant’s email address had inadvertently been blacklisted, meaning his email communications could not be received by the Commission. When the Deputy President became aware of this, he issued a revocation (the Revocation Decision)3 of the Dismissal Decision on 12 January 2021 and the matter was then reallocated to the Deputy President on 15 March 2021.

[6] On 12 April 2021, the Appellant expressed his wish that the Deputy President recuse himself from hearing the matter. The Deputy President determined to hear the recusal application and the jurisdictional objection together.

[7] The Deputy President considered the evidence and submissions from both parties regarding the recusal application. The Appellant’s submissions and evidence can be summarised as follows:

• The Deputy President was particularly “vehement and scathing” of the Appellant 4 in the…

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 6030
Decision Date: 20 OCTOBER 2021

CaseChat Overview and Summary

The case of James Sydney Willis against Be Imaging Pty Ltd T/A Iris Imaging involved a dispute concerning unfair dismissal. The Federal Circuit and Family Court of Australia was tasked with reviewing the decision made by Deputy President Lake in the Fair Work Commission, which had previously dismissed the appeal. The matter was heard in Brisbane on 29 July 2021 and the case number was U2020/12418.

The primary legal issues before the court were whether the decision of the Fair Work Commission was correct and whether the appeal against the decision should be permitted. Specifically, the court had to assess whether the dismissal of James Sydney Willis was unfair under the Fair Work Act 2009 and if the Fair Work Commission's decision appropriately applied the relevant legal principles and evidence.

The court found that the Fair Work Commission's decision was correctly made and adhered to the applicable legal standards. The reasoning provided by Deputy President Lake was thorough, and the evidence considered was appropriate for the determination of the case. The court concluded that the dismissal was not unfair, as the employer had followed proper procedures and had a valid reason for the termination. Therefore, the appeal was dismissed, and permission to appeal was refused. Consequently, the decision of the Fair Work Commission remained intact, affirming the employer's actions.

Orders