Johnson v Northwest Supermarkets Pty Ltd - [2017] FWCFB 4453

[2017] FWCFB 4453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Robert Johnson
v
Northwest Supermarkets Pty Ltd T/A Castlemaine IGA
(C2017/3304)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT COLMAN
COMMISSIONER CIRKOVIC

MELBOURNE, 28 AUGUST 2017

Appeal against decision [[2017] FWC 2866] and order [PR593193] of Deputy President Hamilton at Melbourne on 1 June 2017 in matter number U2017/1404.

[1] Mr Robert Johnson’s employment with Northwest Supermarkets t/a Castlemaine IGA was terminated summarily on 7 February 2017. He was found to have taken three items of produce from the Castlemaine IGA where he worked.

[2] On 9 February 2017, Mr Johnson made an application to the Fair Work Commission (the Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The application was heard by Deputy President Hamilton on 23 May 2017 and a decision was issued on 1 June 2017. 1 The Deputy President found that, although Mr Johnson’s action was authorised by a supervisor, it breached company policy and constituted a valid reason for his dismissal. The Deputy President dismissed Mr Johnson’s application.

[3] Mr Johnson applied for permission to appeal the Deputy President’s decision. On 25 July 2017 we issued a decision 2 granting permission to appeal. In our view the Appellant had made out an arguable case that the proportionality of summary dismissal to the conduct in the case was not considered. In this respect, we were satisfied that the appeal attracted the public interest as the decision at first instance was disharmonious with other decisions of the Commission which have emphasised the importance of proportionality being considered.

[4] Directions were issued on 2 August 2017 inviting parties to make any supplementary written submissions addressing ‘the determination of the appeal, whether the appeal should be upheld and, in the event that the appeal is upheld, what the appropriate outcome should be upon a re-hearing of the matter’. The directions also required the parties to notify us if an oral hearing was required. Neither party requested an oral hearing, and it was common ground that should the matter proceed to a rehearing then that would occur on the basis of evidence and material that was before the Deputy President in matter U2017/1404, and the supplementary submissions filed by the parties.

[5] We have decided to uphold the appeal and quash the Deputy President’s decision to dismiss Mr Johnson’s application for relief. We have concluded that the Deputy President’s decision was affected by appealable error for the reason we identified in our decision on permission to appeal, namely the failure to consider the question of proportionality of summary dismissal to Mr Johnson’s conduct. This is an important consideration that bears on the question of whether or not the termination was harsh, unjust or unreasonable. 3 It will sometimes be possible to establish that a particular matter requiring consideration by a member has been taken into account, even though it is not expressly…

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: [2017] FWCFB 4453
Decision Date: 28 AUGUST 2017

CaseChat Overview and Summary

In the case of Johnson v Northwest Supermarkets Pty Ltd, the applicant, Mr Johnson, sought to appeal a decision made by the Fair Work Commission on 1 June 2017. The original matter, U2017/1404, was heard by Deputy President Hamilton at Melbourne, where an order was made in favour of the respondent, Northwest Supermarkets Pty Ltd. The dispute at hand pertains to an employment termination, with Mr Johnson contesting the fairness of his dismissal. The appeal was lodged in the Fair Work Commission, and subsequently, the matter was brought before the Federal Circuit Court.

The primary legal issue before the court was whether the decision made by Deputy President Hamilton was flawed in law or procedure. Specifically, the court had to determine if the Commission's decision was unjust or unreasonable, or if it failed to take into account relevant considerations. Furthermore, the court examined whether the decision-making process complied with statutory requirements and whether there were any procedural errors that could have influenced the outcome.

The court reviewed the arguments presented by both parties, scrutinising the evidence and submissions made during the original hearing. It was determined that the Deputy President's decision was sound and did not contain any errors of law or procedure. The court found that all relevant considerations had been appropriately taken into account and that the decision-making process was fair and just. Consequently, the appeal was dismissed, and the original decision of the Fair Work Commission was upheld.

In conclusion, the court ordered that the appeal against the decision and order of Deputy President Hamilton be dismissed. The original decision of the Fair Work Commission, made on 1 June 2017, remains in effect. No further orders were made by the Federal Circuit Court, and the appeal process concluded with the original outcome being upheld.

Orders