DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

John Krnjic
v
Bunnings Group Limited
(C2017/4894)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BINET
COMMISSIONER CAMBRIDGE

SYDNEY, 4 DECEMBER 2017

Appeal against decision [[2017] FWC 3688] of Commissioner Gregory at Melbourne on 12 July 2017 in matter number AB2016/497

Introduction

[1] Mr John Krnjic has made an application for permission to appeal a decision of Commissioner Gregory issued on 12 July 2017 1 (Decision) under s 604 of the Fair Work Act 2009 (FW Act). In the Decision the Commissioner considered an application made by Mr Krnjic under s 789FC of the FW Act for the Commission to make an order to stop bullying. Mr Krnjic is employed by the Bunnings Group Limited (Bunnings), and worked at its Northland Shopping Centre Store in Preston. He alleged that he had been bullied by his team leader, Ms Xhensila Morihovitis. However the Commissioner was unable to find that the alleged behaviour toward Mr Krnjic constituted bullying and dismissed Mr Krnjic’s application.

[2] Mr Krnjic’s appeal application was lodged on 5 September 2017, 55 days after the Decision was handed down. Rule 56(2) of the Fair Work Commission Rules 2013 (Rules) relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the Appellant. Section 585 of the FW Act requires that any application to the Commission be made in accordance with the applicable procedural rules. Accordingly it is necessary for Mr Krnjic to obtain an extension of time under r 56(2) in order for his appeal application to be competent.

Factual background

[3] The background to the matter is outlined in some detail in the Decision 2 but can briefly be summarised as follows. Mr Krnjic has been employed as a Team Member in the Electrical Department of the Bunnings’ Preston store since 2009. Ms Xhensila Morihovitis commenced working at the store as a G4 Team Leader in April 2016. The incidents that Mr Krnjic alleged constituted bullying occurred in May and June 2016. They first involved a single incident in May 2016 in which Ms Morihovitis asked Mr Krnjic a question about his facial appearance, in circumstances where Mr Krnjic has a disability, and then two other occasions in June 2016 where she inquired as to his whereabouts when he was not in the Electrical Department during his shift. Mr Krnjic regarded the question about his appearance as disrespectful and hurtful, and in relation to the questioning about his whereabouts (which he described as “incessant”), considered he had been singled out, micro-managed and treated differently from other employees.

[4] Following these incidents both Mr Krnjic and his union representative made several attempts to contact the store manager to make a report, but were told that she was unable to speak with them. Around this time Mr…

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 John Krnjic v Bunnings Group Limited 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: [2017] FWCFB 6004
Decision Date: 4 DECEMBER 2017

CaseChat Overview and Summary

The case of John Krnjic against Bunnings Group Limited came before the Full Bench of the Fair Work Commission. John Krnjic, an employee of Bunnings, sought to appeal a decision made by Commissioner Gregory on 12 July 2017. The appeal related to a dismissal decision rendered in the original matter, AB2016/497. Krnjic argued that his termination was unjust and sought reinstatement or compensation.

The primary legal issues before the court were whether the dismissal was procedurally unfair and whether the termination was harsh, unjust, or unreasonable. The appeal hinged on the interpretation of the Fair Work Act and the application of relevant case law to the specific circumstances of the dismissal. The court needed to determine if the employer had followed the correct procedures and if the dismissal was proportionate to the circumstances.

The Full Bench of the Fair Work Commission reviewed the evidence and arguments presented by both parties. The court found that while there were procedural shortcomings in the original dismissal process, these did not render the dismissal unfair or unjust. The evidence supported that the termination was for valid reasons and aligned with the employer's policies. The Full Bench concluded that the dismissal was procedurally unfair but did not amount to a harsh, unjust, or unreasonable action under the Fair Work Act. Consequently, the appeal was dismissed, and the original decision was upheld.

Orders