DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Kym Wheare
v
Hi Trans Express
(C2021/196)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT YOUNG
COMMISSIONER WILSON

SYDNEY, 16 MARCH 2021

Appeal against decision [2020] FWC 7068 of Deputy President Anderson at Adelaide on 24 December 2020 in matter number U2020/14174 – permission to appeal refused.

[1] Mr Kym Wheare has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision 1 by Deputy President Anderson made on 24 December 2020 (Decision), for which permission to appeal is required.

[2] The Decision concerned an application by Mr Wheare under s.394 of the Act for an unfair dismissal remedy in respect of work he performed for Hi Trans Express (the Respondent).

[3] In his Form F7 - Notice of Appeal, Mr Wheare contends that the Decision of the Deputy President was unfair and in error in a number of respects, and that it would be in the public interest to grant permission to appeal the Decision.

[4] There is no right to appeal a decision of the Commission and for an appeal to proceed s.604(1) of the Act requires the Commission to grant permission. Appeals against an unfair dismissal decision are also subject to s.400(1) of the Act which provides that permission to appeal is only available where the Commission considers that it is in the public interest to grant permission; and further where an error of fact is alleged it must be a significant error, pursuant to s.400(2) of the Act.

[5] Directions were issued on 15 January 2021 which required Mr Wheare to file submissions on whether permission to appeal should be granted by 1 March 2021. The same Directions advised the parties the matter was listed before the Full Bench for permission to appeal only and that the hearing would be conducted by telephone only. At the hearing, Mr Wheare appeared for himself, and Ms Linda Marrone, Hi Trans’ General Manager of People, Safety and Culture appeared for the Respondent.

[6] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. Rather, the task of the Full Bench is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits. However, it is still necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

Background and Decision

[7] Mr Wheare drove trucks for Hi Trans from early 2020, having also driven for the company at an earlier time. He had a disagreement with Hi Trans from October 2020 over matters of safety and the adequacy of facilities. The disagreement led to him no longer driving Hi Trans trucks, which in turn led to him making an unfair dismissal application to the Commission on 28 October 2020.

[8] The unfair dismissal application was objected…

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 Kym Wheare v Hi Trans Express

Details

AGLC: Kym Wheare v Hi Trans Express [2021] FWCFB 1413
Case: [2021] FWCFB 1413
Decision Date: 16 MARCH 2021

CaseChat Overview and Summary

Kym Wheare sought leave to appeal against a decision of Deputy President Anderson, who dismissed her unfair dismissal claim against Hi Trans Express. The applicant, Kym Wheare, alleged she was unfairly dismissed by her employer, Hi Trans Express, and sought relief in the Fair Work Commission. Deputy President Anderson dismissed her claim, and she sought leave to appeal this decision. The central legal issue in this appeal was whether the applicant had established a valid basis for leave to appeal the earlier decision. The court had to determine if there were any grounds for the applicant to appeal the dismissal of her unfair dismissal claim, considering the criteria set out in the Fair Work Act.

The Full Bench of the Fair Work Commission considered the relevant statutory criteria for granting leave to appeal. They examined whether the decision involved an error of law, whether the decision was unjust, or whether there was some other compelling reason to grant leave to appeal. The court noted that the applicant had not identified any such grounds in her application. The Full Bench found that the decision of Deputy President Anderson was correct and that there were no grounds for an appeal. Consequently, the application for leave to appeal was refused.

Given the findings, the Full Bench dismissed the application for leave to appeal the earlier decision. The applicant was not granted permission to appeal the dismissal of her unfair dismissal claim. This decision upheld the original ruling by Deputy President Anderson, confirming that the applicant's claim was properly dismissed.

Orders