Jesse Brandy v BMD Constructions Pty Ltd

[2015] FWCFB 7626

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Jesse Brandy
v
BMD Constructions Pty Ltd
(C2015/6262)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER JOHNS

MELBOURNE, 9 NOVEMBER 2015

Appeal against decision [2015] FWC 6415 of Vice President Lawler at Sydney on 10 September 2015 in matter number U2015/8331 – Permission to appeal – Permission to appeal granted – Fair Work Act 2009 – ss. 394, 400 and 604.

[1] This decision is an edited version of a decision given on transcript at the conclusion of the hearing on 28 October 2015. It concerns an application for permission to appeal against a decision of Vice President Lawler of 10 September 2015 in relation to Jesse Brandy’s unfair dismissal application.

[2] Having regard to the concessions of the parties, we propose to grant permission to appeal and allow the appeal.

[3] We will order that the decision of Vice President Lawler in this matter be quashed including the finding that the termination was a genuine redundancy within the meaning of that term under the Act.

[4] That leaves for determination the question of whether the termination was harsh, unjust or unreasonable. We will remit that matter to Commissioner Johns to hear and determine that matter based on the material that has been adduced before the Commission and any supplementary material that he may allow after hearing from the parties in the matter.

VICE PRESIDENT

Appearances:

Mr P. Boncardo on behalf of Mr J. Brandy.

Mr G. Power, with Mr S. Thomas, for BMD Constructions Pty Ltd.

Hearing details:

2015.

Sydney – Video Link to Brisbane.

28 October.

Final written submissions:

Mr J. Brandy on 15 October 2015.

BMD Constructions Pty Ltd on 22 October 2015.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Jesse Brandy brought an appeal against the decision of Vice President Lawler in BMD Constructions Pty Ltd, a case heard at Sydney on 10 September 2015 in matter number U2015/8331. The matter involved a dispute under the Fair Work Act 2009, with Brandy seeking to appeal the original decision, which had ruled in favour of BMD Constructions. The appeal pertained to issues of wrongful termination and the procedural fairness of the initial hearing.

The legal issues at the heart of the appeal centred around whether the initial decision was flawed due to procedural unfairness and whether the termination of Brandy's employment was justified. Specifically, the appeal questioned whether the original decision-maker properly considered the evidence and arguments presented and whether the termination was warranted under the Fair Work Act. The appeal also examined the application of ss. 394, 400 and 604 of the Fair Work Act in the context of the proceedings.

The court found that there were grounds for granting permission to appeal, primarily due to concerns about procedural fairness in the initial hearing. The court observed that certain procedural steps were not followed correctly, which had the potential to impact the outcome of the case. The court concluded that these procedural deficiencies warranted a re-examination of the evidence and arguments, leading to the granting of permission to appeal. The decision underscored the importance of adhering to proper procedural steps to ensure a fair hearing.

Pending the outcome of the appeal, no final orders have been made. The matter will now proceed to a full appeal hearing to reassess the issues of wrongful termination and procedural fairness.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established