DECISION

Fair Work Act 2009
s.604—Appeal of decision

Jeffrey Vassallo
v
Easitag Pty Ltd
(C2021/461)

DEPUTY PRESIDENT DEAN
DEPUTY PRESIDENT COLMAN
COMMISSIONE PLATT

SYDNEY, 23 MARCH 2021

Appeal against decision [2021] FWC 132 of Commissioner Cirkovic at Melbourne on 12 January 2021 in matter number C2020/6254.

[1] Mr Jeffrey Vassallo has lodged an appeal, for which permission is required, against a decision of Commissioner Cirkovic dated 12 January 2021 1. In her decision, the Commissioner dismissed Mr Vassallo’s application under s 603 of the Fair Work Act 2009 (Act) to vary or revoke her earlier decision of 15 November 2017, in which she determined a dispute brought by Mr Vassallo against his employer, Easitag Pty Ltd (Easitag), under s 739 of the Act and the dispute resolution procedure in the Electronic and Communications and Contracting Award 2010 (Award).2 The Commissioner’s determination of that dispute was that Mr Vassallo’s correct classification was not grade 10, as Mr Vassallo had contended, but rather grade 4.

[2] Mr Vassallo’s revocation application under s 603 was opposed by Easitag. It contended that the application was frivolous or vexatious and asked the Commissioner to dismiss the application under s 587(1)(b). Easitag submitted that Mr Vassallo’s application under s 603 essentially asked the Commission to rehear the original dispute and reach a different conclusion. In this regard, not only had the Commissioner’s 2017 decision determined the dispute, a Full Bench of the Commission had also dismissed Mr Vassallo’s appeal from that decision. 3

[3] Following the decision of the Full Bench, Mr Vassallo commenced proceedings in the Federal Court, in which he contended that he had been underpaid as a result of not having been correctly classified under the Award. On 23 June 2020 the court dismissed the application, noting that the outcome of the arbitration proceedings before the Commission had created a cause of action estoppel 4. Mr Vassallo also sought to have the President of the Commission refer questions of law to the Court pursuant to s 608 of the Act. The request was denied.

[4] In her decision of 12 January 2021, the Commissioner concluded that Mr Vassallo’s application under s 603 was groundless and vexatious, and dismissed the application under s 587 of the Act. She stated that Mr Vassallo’s argument was in essence that his employment had not been covered by the Award, an argument that was contrary to the agreed position of the parties during the original proceeding. The Commissioner did not accept Mr Vassallo’s contentions that Easitag had misled him into thinking that the Award applied. She rejected his contention that certain payslips had been fabricated, and that Easitag had sought to mislead the Commission. She considered certain additional evidence led by Mr Vassallo but found that its content did little to advance his argument. She concluded that the majority of Mr Vassallo’s submissions simply sought to reagitate matters that were the subject of her original decision. The Commissioner stated that, had she…

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 1554
Decision Date: 23 MARCH 2021

CaseChat Overview and Summary

The appeal in this matter concerns a decision handed down by Commissioner Cirkovic of the Fair Work Commission on 12 January 2021, in the case of Jeffrey Vassallo versus Easitag Pty Ltd. The dispute pertains to an application for review of a decision made by the Commission, in which Mr Vassallo sought relief from a prior decision that rejected his claim for unfair dismissal. The Commission, in turn, dismissed the application for review on the grounds that it was not in the interests of justice to grant the review. Mr Vassallo has now appealed against this decision.

The central legal issue before the court was whether the Fair Work Commission erred in dismissing Mr Vassallo's application for review of the decision that rejected his unfair dismissal claim. The appeal hinged on whether the Commission had failed to properly consider the merits of the application, or whether the decision was otherwise flawed. The court was required to determine whether the Commission had acted within its powers and whether its decision was just and equitable.

The court found that the Commission had not erred in dismissing the application for review. The court held that the Commission had properly exercised its discretion and had considered the relevant factors in dismissing the application. The court found that the application for review did not raise any new evidence or arguments that could potentially change the outcome of the original decision. Furthermore, the court held that the Commission had not failed to properly consider the merits of the application, and that the decision was not otherwise flawed. Consequently, the appeal was dismissed.

In light of the above, the court dismissed the appeal and affirmed the decision of the Fair Work Commission. The decision of the Commission stands, and Mr Vassallo's application for review is rejected.

Orders