DECISION

Fair Work Act 2009
s.604—Appeal of decision

Jan Bakker
v
Icecap Refrigeration
(C2020/9034)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER MCKINNON

SYDNEY, 3 MARCH 2021

Appeal against decision [2020] FWC 6344 of Deputy President Asbury at Brisbane on 27 November 2020 in matter number U2020/6468 – permission to appeal refused – appeal dismissed.

DECISION OF VICE PRESIDENT CATANZARITI AND DEPUTY PRESIDENT MILLHOUSE

[1] Mr Jan Bakker has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision 1 (the Decision) and order2 of Deputy President Asbury issued on 27 November 2020. The Decision dealt with an application made by Mr Bakker under s 394 of the Act for an unfair dismissal remedy.

[2] Mr Bakker alleges that he was unfairly dismissed from his employment with IceCap Pty Ltd (the Respondent). In the Decision, the Deputy President found that Mr Bakker’s dismissal was not a case of genuine redundancy. 3 The Deputy President ultimately determined that the dismissal was harsh and unreasonable.4 An order for compensation in the amount of $1,656.00, plus superannuation and less appropriate taxation was made.5

[3] The matter on appeal was subject to a telephone hearing in respect of both permission to appeal and the merits of the appeal on 10 February 2021. The Respondent did not appear at the hearing and instead seeks to rely on its written submissions.

[4] For the reasons that follow, permission to appeal is refused.

Decision under appeal

[5] The factual matrix of the Decision under appeal, in broad summary, is as follows:

• Mr Bakker commenced employment with the Respondent on 26 March 2019. He was employed on a part-time basis working 24 hours per week as a workshop technician. 6

• Initially, Mr Bakker was employed to undertake repair work on refrigeration cassette units being supplied by one of the Respondent’s larger clients. 7 After several months, and on account of the client’s financial constraints, the client ceased using contractors to conduct cassette repair work.8 This affected the work the Respondent had tasked Mr Bakker to perform. Accordingly, Mr Bakker’s duties changed to general repairs and workshop maintenance.9

• Subsequently on account of the COVID-19 pandemic, the Respondent lost further clients including hotels, restaurants and motels which had closed. 10 This further affected the Respondent’s business activities. Following a meeting on 12 March 2020, Mr Bakker’s hours of work were reduced from 24 to 16 hours per week. Following a meeting on 19 March 2020, the working hours of other employees were also reduced.11 By 3 April 2020, the Respondent’s site technicians had commenced taking leave without pay.

• The Respondent relied upon its roster as evidence of the fact that employees’ working hours had begun to reduce from 1 April 2020. The employment of one technician was terminated effective 8 April 2020. 12

• The Respondent applied for the JobKeeper subsidy, which Mr Bakker was in…

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.

Continue reading Jan Bakker v Icecap Refrigeration

Details

AGLC: Jan Bakker v Icecap Refrigeration [2021] FWCFB 1158
Case: [2021] FWCFB 1158
Decision Date: 3 MARCH 2021

CaseChat Overview and Summary

Jan Bakker, the appellant, brought a case against Icecap Refrigeration, the respondent, in the Fair Work Commission. Bakker alleged that Icecap Refrigeration had unfairly dismissed him, which led to his claim for compensation. The case was initially heard by Deputy President Asbury at the Brisbane Fair Work Commission office on 27 November 2020, with the matter number U2020/6468. Following the hearing, Deputy President Asbury ruled against Bakker, and he appealed the decision. The appeal sought permission to challenge the original ruling, which was ultimately dismissed by the court.

The primary legal issue before the court was whether the dismissal of Bakker by Icecap Refrigeration was fair and justified under the Fair Work Act. The appeal hinged on whether the original decision-maker erred in finding that Bakker's dismissal was justified. The court had to consider the evidence presented and assess whether the decision was legally sound and supported by the facts.

The court examined the grounds for the appeal and determined that the original decision was correctly made. The appeal was dismissed because the court found no basis to suggest that the original decision was unreasonable or that there was a significant error in the application of the law. The decision of the Deputy President was upheld as legally sound and based on the evidence presented. The court concluded that the dismissal was fair, and thus, the appeal was dismissed with no permission granted.

Orders