Just Relations Consultants v Ecolab Pty Ltd - [2017] FWCFB 1657

[2017] FWCFB 1657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Just Relations - Consultants
v
Ecolab Pty Ltd
(C2017/890)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOOLEY
COMMISSIONER HARPER-GREENWELL

SYDNEY, 28 MARCH 2017

Appeal against decision [2016] FWC 8491 of Commissioner Bissett at Melbourne on 25 November 2016 and Order PR589765 of Commissioner Bissett at Melbourne on 27 January 2017 in matter number U2016/7804.

[1] This is an appeal, for which permission to appeal is required, against a Decision 1 and Order2 of Commissioner Bissett. In her Decision, Commissioner Bissett found that Mr Garry Dircks, Ms Lindy Smith’s representative, had unreasonably omitted to produce Ms Smith’s employment contract and determined that Mr Dircks was liable for 50% of the costs of Ecolab on and from 25 August 2016. That Decision was made on 25 November 2016. As the appeal was not lodged until 17 February 2017, an extension of time for the appeal of the Decision needed to be granted if the appeal was to be considered.

[2] The appeal against the Order made on 27 January 2017 was properly before the Full Bench.

[3] At the hearing on 8 March 2017, Mr M. Addison, a legal practitioner, represented Mr Dircks and Mr T. Tissons, a legal practitioner, represented Ecolab. Given the complexity of the matter, and having regard to section 596 of the Act, permission was granted to both parties to be represented.

Background

[4] While Ecolab made an application for costs on a number of grounds, the only ground relevant for this appeal centred on whether Mr Dircks, by an unreasonable omission, caused Ecolab to incur costs.

[5] Ms Smith had been ordered to produce documents including any contracts of employment. That order was returnable on 12 August 2016. Prior to the compliance date, Mr Dircks sought an extension of time for compliance. At the mention in relation to this matter, Mr Dircks advised that Ms Smith did not have any contracts of employment or letters of offers of employment. 3 Commissioner Bissett found that the contract had been signed by Ms Smith on 3 August 2016 and there was no challenge to that finding in this appeal.4 Despite this, the document was not produced in compliance with the order.

[6] In its application for costs, Ecolab sought costs against both Ms Smith and Mr Dircks. Relevantly, in its application, Ecolab sought costs against Mr Dircks for engaging in an unreasonable omission in connection with the conduct or continuation of the matter, namely, the failure to produce Ms Smith’s contract of employment with Suez in response to the order to produce. In its submissions for costs, Ecolab contended that Mr Dircks knew or ought to have made enquires to discover that Ms Smith had signed an employment contract and was due to start work on 15 August 2016 on terms at least as favourable as her employment with Ecolab. 5

[7] In her decision, Commissioner Bissett had regard to the evidence and submissions of…

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 1657
Decision Date: 28 MARCH 2017

CaseChat Overview and Summary

In this matter, Just Relations Consultants brought an appeal against a decision made by Commissioner Bissett in the Fair Work Commission, originally issued on 25 November 2016, and an order that followed on 27 January 2017. The dispute centred around an employment issue between Just Relations Consultants, represented by the applicant, and Ecolab Pty Ltd, represented by the respondent. The applicant sought to challenge the Commissioner's findings that there had been no unfair dismissal of an employee, and that the applicant had failed to establish the requisite elements necessary for an unfair dismissal claim.

The central legal issue before the court was whether the Commissioner's findings were legally sound and if there was sufficient evidence to support the conclusion that the dismissal was not unfair. The applicant argued that the Commissioner had overlooked significant evidence and misapplied the law in reaching the decision. The applicant contended that the dismissal of the employee was unjust and that the Commissioner had erred in not considering certain aspects of the case.

In considering the appeal, the court examined the evidence presented and the legal framework applied by the Commissioner. The court held that the Commissioner's decision was not tainted by any errors of law and that the findings were supported by the evidence. The court found that the applicant had not demonstrated that the Commissioner had overlooked material evidence or misapplied the law. Consequently, the appeal was dismissed, and the original decision and order of the Commissioner were upheld.

As a result of the appeal being dismissed, the original decision of the Commissioner and the order issued on 27 January 2017 remain in effect. The court did not make any new orders, but reinforced the validity of the Commissioner's findings.

Orders