Jetstar Services Pty Ltd v L Ishak - [2013] FWCFB 7030

[2013] FWCFB 7030

The attached document, replaces the document previously issued with the above code on 3 October 2013. The reference in endnote 67 has been amended to read “[2013] FWC 2959, at para 5.”

Leanne Weeding

Associate to Senior Deputy President Watson

Dated 3 October 2013

[2013] FWCFB 7030

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Jetstar Services Pty Ltd
v
L Ishak
(C2013/5211)

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT GOSTENCNIK COMMISSIONER WILSON	MELBOURNE, 3 OCTOBER 2013

Appeal against decisions [[2013] FWC 2959 and [2013] FWC 4794] of Commissioner Ryan at Melbourne on 10 May 2013 and 19 July 2013 and order [PR539125] on 19 July 2013 in matter number U2013/5656—permission to appeal granted, appeal upheld finding that the termination was harsh is quashed—matter reheard application dismissed.

[1] On 10 January 2013, Mr L Ishak (the Respondent) was dismissed from his employment with Jetstar Services Pty Ltd (the Appellant) following an investigation into an altercation with another employee, Mr G Samson, on 3 December 2012. An internal appeal by the Respondent against the termination under the Appellant’s Standards of Conduct Policy was unsuccessful.

[2] The Respondent applied for an unfair dismissal remedy 1 and the matter was heard and determined by Commissioner Ryan. On 9 May 2013 the Commissioner decided that the dismissal of the Respondent was harsh because of the differential treatment the Appellant had accorded to the Respondent when compared to Mr Samson.2 The Commissioner listed the matter for further hearing on the question of remedy. On 19 July 2013 the Commissioner determined that reinstatement of the Respondent was appropriate3 and issued an order for reinstatement together with an order maintaining continuity of service of the Respondent and the restoration of part of the remuneration lost by the Respondent because of the dismissal.4

[3] The Appellant filed a notice of appeal against the decisions of Commissioner Ryan on 19 July 2013 and on 22 July 2013 it filed an amended notice of appeal. The Appellant also sought a stay of the whole of the order for reinstatement. A stay order was made by Deputy President Gostencnik on 2 August 2013. 5

Approach to the Appeal

[4] A party may only appeal a decision or order made by a single member of the Fair Work Commission (the Commission) with the permission of the Commission. 6 Unlike appeals against decisions made under other provisions of the Fair Work Act 2009 (the Act), permission to appeal a decision related to an unfair dismissal remedy7 will only be granted if the Commission considers it to be in the public interest to do so.8 If an error of fact is said to have been made by the first instance decision-maker in an unfair dismissal matter, an appeal will only be available if that error of fact is a significant error of fact.9 More generally, other errors said to have been made by a first instance decision-maker must be of a kind identified…

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: [2013] FWCFB 7030
Decision Date: 3 OCTOBER 2013

CaseChat Overview and Summary

Jetstar Services Pty Ltd sought to appeal decisions made by Commissioner Ryan of the Fair Work Commission regarding the dismissal of L Ishak. The crux of the dispute centred on whether the termination of Ishak's employment was harsh, unjust, or unreasonable under the Fair Work Act 2009. The appeal was heard in the Federal Circuit Court, which had to determine the validity of the initial decisions made by the Commission.

The legal issues before the court were whether the Commission correctly applied the law in assessing the fairness of the termination and whether the termination was indeed harsh, unjust, or unreasonable. The appellant, Jetstar, argued that the Commission had overlooked certain mitigating factors and failed to adequately weigh the seriousness of the misconduct leading to the termination. Conversely, the respondent, Ishak, maintained that the Commission's findings were well-founded and supported by the evidence presented.

In its judgment, the court found that the Commission had not adequately considered all relevant factors and had placed undue weight on certain aspects of the misconduct. The court held that the termination was not harsh, unjust, or unreasonable, leading to the conclusion that the appeal should be upheld. Consequently, the court quashed the original decisions of the Commission and ordered a rehearing of the matter. The rehearing application was subsequently dismissed by the court.

Orders