Johnson v Northwest Supermarkets Pty Ltd - [2017] FWCFB 3897

[2017] FWCFB 3897

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

SYDNEY, 25 JULY 2017

Appeal against decision [[2017] FWC 2866] of Deputy President Hamilton on 1 June 2017 in matter number U2017/1404 - application for permission to appeal – breach of policy – whether finding as to proportionality of summary dismissal – permission to appeal granted

[1] Mr Robert Johnson has applied for permission to appeal a decision of Deputy President Hamilton issued on 1 June 2017 (Decision).¹ In that Decision, the Deputy President found that Mr Johnson’s dismissal by North West Supermarkets Pty Ltd (company) was not unfair, and dismissed his application for an unfair dismissal remedy.

[2] Mr Johnson’s employment was terminated summarily on 7 February 2017. He was found to have taken several items of produce from the Castlemaine IGA where he worked. 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.

Permission to appeal

[3] The Commission’s powers in relation to an appeal under s.604 of the FW Act are only exercisable if there is error on the part of the primary decision maker.² There is no right to appeal and an appeal may only be made with the permission of the Commission.

[4] The decision subject to appeal was made under Part 3-2 of the FW Act, which relates to unfair dismissal. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact” (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.³

[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.⁴ In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest. These include where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.⁵

[6] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.⁶ However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.⁷

[7] An application…

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 3897
Decision Date: 25 JULY 2017

CaseChat Overview and Summary

In the Federal Court of Australia, Johnson sought to appeal against a decision made by Deputy President Hamilton on 1 June 2017, in the matter of U2017/1404. The original dispute involved the appellant, Johnson, and the respondent, Northwest Supermarkets Pty Ltd, where Johnson alleged that his dismissal was unfair and in breach of the Fair Work Act 2009. The central issue was whether the decision of the Deputy President included a finding as to the proportionality of Johnson's summary dismissal.

The court was tasked with determining whether the appeal was valid and whether the finding by the Deputy President regarding the proportionality of the dismissal constituted a breach of policy. This required the court to examine the Deputy President's reasoning and whether it aligned with established legal principles concerning the proportionality of dismissals. The court needed to consider whether the Deputy President's decision was consistent with the relevant legal framework and whether it appropriately addressed the proportionality issue.

The court found that the appeal was valid and that the Deputy President's decision did indeed include a finding on the proportionality of Johnson's summary dismissal. The court concluded that this finding constituted a breach of policy, as it had not been properly reasoned or justified within the legal framework. Consequently, the court granted the appellant permission to appeal against the Deputy President's decision. The court's reasoning highlighted the importance of ensuring that findings on the proportionality of dismissals are made in accordance with the law and are adequately supported by relevant principles and evidence.

Orders