DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

KONE Elevators Pty Ltd t/a KONE
v
Martin Scibberas
(C2020/4051)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT DEAN

SYDNEY, 28 SEPTEMBER 2020

Appeal against decision [2020] FWC 1284 of Deputy President Gostencnik at Melbourne on 7 May 2020 in matter number C2019/5366.

Introduction

[1] KONE Elevators Pty Ltd (Kone) has lodged an appeal, for which permission is required, against a decision of Deputy President Gostencnik issued on 7 May 2020 1 (decision). The decision concerned an application made pursuant to s 739 of the Fair Work Act 2009 (FW Act) by Mr Martin Sciberras, an employee of Kone and a member of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), for the Commission to deal with a dispute concerning the proper interpretation of clauses 52 and 54 of the KONE Elevators Pty Ltd – Victoria Construction & Service Employees Enterprise Agreement 2019 (Agreement). The dispute was characterised in the application as concerning KONE’s failure to pay site allowances to employees, including Mr Sciberras, on rostered days off in accordance with clause 54(c) of the Agreement.

[2] There was no contest that the Commission had the power to arbitrate the dispute pursuant to the dispute resolution procedure in clause 8 of the Agreement. In the arbitral phase of the proceedings before the Deputy President, the parties agreed that the dispute could be resolved by the Commission answering the following question:

“Are employees entitled to a rostered day off (RDO) pursuant to Part C of the KONE Elevators Pty Ltd – Victoria Construction & Service Employees Enterprise Agreement 2019, to be paid any applicable site allowance:

a) for hours worked, at the time those hours are worked (pursuant to clause 52(c));

b) at the time of taking the RDO (pursuant to clause 54(c)); or

c) both?”

[3] The Deputy President’s answer to the question was “c) both”. Kone contends in its appeal that this answer was in error, and that the correct answer was “b) at the time of taking the RDO (pursuant to clause 54(c))”. There is no contest that the Deputy President’s decision is appealable, subject to the grant of permission of appeal.

[4] This appeal was originally allocated to a Full Bench consisting of Vice President Hatcher, Deputy President Asbury and Deputy President Kovacic, and was the subject of a hearing on 21 July 2020. Sadly, on 31 July 2020, Deputy President Kovacic passed away. On 12 August 2020, the President of the Commission, Ross J, reconstituted the bench to consist of Vice President Hatcher, Deputy President Asbury and Deputy President Dean. The parties were informed of this the same day, and advised that Deputy President Dean would read the submissions and other materials filed by the parties and would join in the decision-making process of the reconstituted Full Bench on that basis. The parties were given an opportunity to…

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: [2020] FWCFB 4975
Decision Date: 28 SEPTEMBER 2020

CaseChat Overview and Summary

Kone Elevators Pty Ltd t/a Kone, the appellant, sought review of a decision made by Deputy President Gostencnik at Melbourne on 7 May 2020 in the matter of Martin Scibberas, the respondent. The primary issue in this appeal was the determination of unfair dismissal and the calculation of compensation awarded to Mr Scibberas by the Fair Work Commission (FWC). Mr Scibberas had been employed by Kone and claimed that his dismissal was unfair, leading to the FWC awarding him compensation under section 384 of the Fair Work Act 2009 (Cth).

The central legal issue before the court was whether the FWC erred in its decision to award compensation to Mr Scibberas. Specifically, the court needed to determine whether the FWC correctly assessed the reasonable notice period that Mr Scibberas was entitled to receive, and whether the calculation of compensation was in accordance with the principles established in authorities such as Polkey v AE Dayton Services Pty Ltd. The appellant argued that the FWC had made errors in the assessment of the notice period and the compensation calculation, which led to an excessive award.

In examining the appeal, the court held that the FWC had indeed erred in its assessment of the reasonable notice period and the calculation of compensation. The court found that the FWC did not properly consider the factors relevant to the notice period and had not adequately applied the principles of Polkey. Consequently, the compensation awarded was excessive. The court set aside the decision of the FWC and remitted the matter back to the FWC for re-determination of the reasonable notice period and the appropriate compensation, taking into account the correct principles and factors.

The court did not make any final orders in the appeal itself, as the matter was to be re-determined by the FWC. However, the court's decision provided clear guidance on the legal principles and factors that the FWC must consider in making its determination.

Orders