JG King Homes v Tyler - [2016] FWCFB 140

[2016] FWCFB 140

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
JG King Homes
v
Mr Tom Tyler
(C2015/6320)
VICE PRESIDENT CATANZARITI
VICE PRESIDENT WATSON	SYDNEY, 28 JANUARY 2016
DEPUTY PRESIDENT BULL

Appeal against decision [[2015] FWC 6352] of Commissioner Wilson at Melbourne on 18

September 2015 in matter number U2015/993 – Permission to appeal – whether grounds of

appeal attract the public interest – whether arguable case of appellable error – Fair Work

Act 2009 – ss.394, 400 and 604.

Introduction

[1]

This decision concerns an application for permission to appeal against a decision

and

2

order

of Commissioner Wilson handed down on 18 September 2015. The decision of the

Commissioner concerned an application for unfair dismissal remedy made by Mr Tyler under

s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment

with JG King Homes.

[2] At the hearing of the appeal on 18 December 2015, Ms S Bingham of counsel sought

permission to appear on behalf of JG King Homes and Mr A Bell of counsel sought

permission to appear on behalf of Mr Tyler. Having regarding to s.596 of the Act permission

to appear was granted.

Background

[3] Mr Tyler was engaged to sell new homes for JG King Homes, including home and

land packages. His application alleges that he commenced working for JG King Homes in

September 1990 and, having worked for the business continuously since that time, he was

called into a meeting on 16 February 2015 and told that his work with the company would

end with immediate effect.

[4] JG King Homes resisted the application, principally for the reason that it contends that

Mr Tyler has never been an employee of the company. In the alternative it argues that if Mr

Tyler was an employee, he has not been unfairly dismissed.
[2016] FWCFB 140

[5] The Commissioner noted that application of the multifactorial tests established by the
3

Courts has been confirmed in the recent matter Kimber

. The Commissioner analysed Mr

Tyler’s circumstances in accordance with the principles laid out in another case French

4

Accent.

[6] The Commissioner concluded:
“[76] Having given consideration to all of the relevant criteria, and having found that
many resolve as characteristic of an employee, it is evident that, at least in the most
recent years of Mr Tyler’s engagement, he was an employee for the purposes of the
Act, and I so find.”
[7] The Commissioner then proceeded to determine whether Mr Tyler was a person

protected from unfair dismissal at the time of his dismissal.

[8] The Commissioner reached the following conclusions:
“[140] After consideration of the foregoing issues, I find that the Applicant was
dismissed and that it was unfair within the meaning of the Act.
[142] I find that reinstatement is not an appropriate remedy in this case.
[143] I find that compensation is appropriate.”

Grounds of Appeal

[9] The grounds of appeal advanced by JG King Homes…

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: [2016] FWCFB 140
Decision Date: 28 January 2016

CaseChat Overview and Summary

The case of JG King Homes v Tyler involves an application for permission to appeal a decision made by Commissioner Wilson of the Fair Work Commission (FWC). The applicant, JG King Homes, sought to appeal the decision that it had unfairly dismissed Mr. Tom Tyler, who had been employed by the company since 1990. The legal issues the court was required to decide were whether the grounds of appeal attracted the public interest and whether there was an arguable case of appellable error. The court was also required to consider whether the decision involved a significant error of fact.

The court considered the grounds of appeal and found that the decision of the Commissioner did not involve any error of principle that required correction. The court found that the decision applied established legal tests, made requisite findings and reached conclusions which did not appear to be counter-intuitive. The court also found that the case depended on its peculiar facts and had no relevance to other relationships or other contested cases concerning the existence of an employment relationship. The court was not persuaded that it was in the public interest to grant permission to appeal.

In conclusion, the court declined to grant permission to appeal and dismissed the application for permission to appeal. The court found that the decision of the Commissioner did not involve any error of principle that required correction and that the case depended on its peculiar facts. The court was not persuaded that it was in the public interest to grant permission to appeal.

Orders