[1] Mr Daniel King has applied for permission to appeal a decision of Senior Deputy Drake issued on 17 March 2017 1 (the Decision). The Decision determined Mr King’s application pursuant to section 394 of the Fair Work Act 2009 (FW Act) seeking a remedy for his alleged unfair dismissal by Patrick Projects Pty Ltd (Patrick Projects).

[2] Prior to the hearing of Mr King’s unfair dismissal application, Patrick Projects had conceded that the termination of Mr King’s employment was harsh, unjust and unreasonable. The Decision, therefore, dealt only with the issue of an appropriate remedy. Mr King sought reinstatement with payment of compensation for all monies lost to him as a result of the termination of his employment, and continuity of employment. He sought, as far as possible, to be restored to the position he would have been in had his employment not been terminated on 30 April 2014.

[3] The Senior Deputy President found that reinstatement was not an appropriate remedy in all of the circumstances of Mr King’s application. She determined under section 392 of the FW Act that the appropriate amount of compensation payable to Mr King was $64,655. This was, under s.392(5), the maximum amount of compensation permitted to be awarded to Mr King.

[4] Mr King was represented in the hearing before us by Mr Christopher Strauss.

[5] Patrick Projects applied for permission to be represented by lawyers, which was opposed by Mr King. We decided to grant permission to be represented as we were satisfied that the jurisdictional criterion in s.596(2)(a) was satisfied for three reasons. Firstly, the litigation out of which this appeal arose had been extremely long and complex. Secondly, the factual matrix of the matter itself was also extensive and complex, as exhibited by the size of the appeal book. Thirdly, the legal practitioner, Mr Fletcher, was granted permission to appear at first instance and could be presumed to have familiarity with the complexity of the matter. For the same three reasons we considered it appropriate to exercise our discretion to permit Patrick Projects to be represented by Mr Fletcher.

[6] In the Decision, the Senior Deputy President engaged in an extensive analysis of the evidence and submissions concerning the question of whether reinstatement should be granted as a remedy. Her findings included the following:

There was no work to be performed at Patrick Projects for which Mr King was trained (the project for which Mr King was employed having ended), and Patrick Projects had no continuing obligation to train Mr King to perform other functions. 2
Before termination Mr King had various absences from work as a result of an…

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.

Continue reading King v Patrick Projects Pty Ltd

Details

AGLC: King v Patrick Projects Pty Ltd [2017] FWCFB 2809
Case: [2017] FWCFB 2809
Decision Date: 21 JUNE 2017

CaseChat Overview and Summary

In the case of King v Patrick Projects Pty Ltd, the applicant, King, sought permission to appeal against the decision of the Federal Circuit Court, handed down by Senior Deputy President Drake on 17 March 2017, in the matter number U2014/7097. The case involved a dispute regarding an order made by the Fair Work Commission (FWC) concerning the applicant's employment termination and subsequent legal proceedings. The applicant sought to challenge the decision of the FWC, which had been previously affirmed by the Federal Circuit Court, pertaining to the applicant's claims of unfair dismissal and associated entitlements.

The primary legal issue before the court was whether the applicant had established a valid basis for the appeal against the decision of the FWC, particularly in light of the earlier affirmation by the Federal Circuit Court. The applicant argued that there were errors in the decision of the FWC that warranted the court's intervention and a re-examination of the case's merits. The applicant contended that the FWC had misapplied the law in its assessment of the applicant's claims, leading to an unjust outcome. The court was tasked with determining whether the alleged errors were significant enough to warrant the granting of leave to appeal.

The court carefully considered the arguments presented by the applicant and examined the grounds for appeal. In its reasoning, the court noted that the decision of the FWC had already been subject to review by the Federal Circuit Court, which had upheld the original decision. The court highlighted the principle that leave to appeal is not granted lightly and is reserved for cases where there is a significant possibility that the appeal will succeed. After reviewing the arguments and the grounds for appeal, the court concluded that the applicant had not demonstrated a compelling case for the appeal to proceed. The court found that the applicant had not shown that the alleged errors in the FWC's decision were of such a nature that they would likely result in a different outcome if the case were retried. Consequently, the court dismissed the application for leave to appeal.

As a result of the court's decision, the applicant's bid to challenge the decision of the FWC was unsuccessful. The orders of the FWC and the Federal Circuit Court remained in place, and the applicant's claims of unfair dismissal and associated entitlements were not subject to further review. The court's decision underscored the importance of demonstrating a strong likelihood of success in order to obtain leave to appeal and highlighted the stringent criteria that must be met for such applications to be granted.

Orders