Jeffrie Trika v Home@Scope Pty Ltd - [2022] FWCFB 98

[2022] FWCFB 98

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Jeffrie Trika
v

Home@Scope Pty Ltd

(C2022/2592)

VICE PRESIDENT HATCHER

DEPUTY PRESIDENT YOUNG

COMMISSIONER CIRKOVIC

SYDNEY, 10 JUNE 2022

Appeal against decision [2022] FWC 749 and order PR740017 of Deputy President Masson at Melbourne on 6 April 2022 in matter number U2021/10291.

Mr Jeffrie Trika has lodged an appeal against a decision[1] by Deputy President Masson on 6 April 2022 (Decision) to dismiss his application for relief from unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (FW Act) and the accompanying order (Order).[2]

In his notice of appeal Mr Trika seeks permission to appeal the Decision, and, if granted, appeals the Decision and the Order. The notice of appeal was filed outside the 21-day timeframe for lodging an appeal required by rule 56(2) of the Fair Work Commission Rules 2013 (Rules). For Mr Trika’s appeal to have been instituted within time it must have been lodged on or before 27 April 2022. Mr Trika’s appeal was filed on 28 April 2022, therefore one day outside this timeframe. The appeal cannot proceed unless the Commission grants Mr Trika an extension of time.

For the reasons that follow, we decline to allow a further period of time for the lodgment of Mr Trika’s notice of appeal. The application for permission to appeal is dismissed.

Background

The background to this matter is as follows.

Mr Trika was employed by the Respondent in the position of Disability Support Worker. He was covered in his employment by the Disability Services Enterprise Agreement Victoria 2018-2022 (Agreement). At the time of his dismissal Mr Trika was employed at the Keystone group home in Kew East. The Keystone group home is a Supported Independent Living house, which at that time had five residents each of whom had Down syndrome. One of the residents suffered from dementia and required one-to-one care at times because of his deteriorating health. On 5 March 2021, a letter of allegations containing three allegations was sent to Mr Trika. Those allegations, were, in brief, that:

on 10 February 2021, Mr Trika left the group home shortly after arriving for work without authorisation or notification, resulting in the remaining staff member being responsible for the 5 residents, one of whom required one-on-one care (Allegation 1);

Mr Trika, on numerous occasions, breached the Disability Act, the Respondent’s policies and the Victorian Charter of Human Rights by engaging in inappropriate conduct and/or restrictive practices including directing residents to go to bed at 10 pm, not play music or turn it down, not watch television, to be quiet and not come out of their respective bedrooms (Allegation 2); and
Mr Trika breached the Respondent’s Code of Conduct and policies by engaging in inappropriate conduct including yelling or speaking inappropriately to a resident, gesturing to the resident with his middle finger in an inappropriate way and telling residents not to speak (Allegation 3).

Following an investigation conducted by an external investigator,…

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.

Keep reading for free

Create a free CaseChat account to read Jeffrie Trika v Home@Scope Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWCFB 98
Decision Date: 10 JUNE 2022

CaseChat Overview and Summary

In the matter of Jeffrie Trika v Home@Scope Pty Ltd, the appellant, Jeffrie Trika, sought to appeal a decision by Deputy President Masson on 6 April 2022 to dismiss his application for relief from unfair dismissal. The appeal was lodged one day outside the 21-day timeframe required by rule 56(2) of the Fair Work Commission Rules 2013, thus necessitating the need for an extension of time. The appeal was dismissed as the Commission found no satisfactory reason for the delay, the delay was short, and there was no reasonable prospect of the appeal being successful. The appellant’s contentions that the Deputy President erred in his findings regarding staffing levels, peak periods, and the nature of the misconduct did not present a reasonably arguable case of appealable error. Moreover, the appellant's contention that his dismissal should have been found unfair due to the Deputy President finding that Allegations 2 and 3 were not substantiated was also not reasonably arguable. The appeal was dismissed, and an extension of time to file the appeal was refused.

Orders