Lewer v Australian Postal Corporation - [2023] FWCFB 56

[2023] FWCFB 56

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Bradley William Lewer
v

Australian Postal Corporation

(C2022/7087)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BELL
COMMISSIONER YILMAZ

SYDNEY, 15 MARCH 2023

Appeal against decision [2022] FWC 2822 of Deputy President Anderson at Adelaide on 24 October 2022 in matter number C2022/2468 – dispute whether binding settlement – permission to appeal refused.

Background

Mr Bradley William Lewer (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act) against a decision of Deputy President Anderson (Deputy President) issued on 24 October 2022 (the Decision),[1] for which permission to appeal is required. The Decision concerned a finding that a binding settlement was reached between the parties and accordingly, the Deputy President the application under s.587 of the Act.

This matter was listed for permission to appeal only. On 1 November 2022, directions were issued for the filing of material and the matter was listed for hearing on 7 December 2022. Both parties filed written submissions and made further oral submissions at the hearing.

On 19 April 2022 the Appellant filed in the Commission an application under s.365 of the Act to deal with a general protection dismissal dispute in relation to an alleged dismissal on 25 March 2022 by Australian Postal Corporation (the Respondent). The Respondent objected to the application on the basis that the Appellant was not dismissed. However, the Appellant contends that he was constructively dismissed. Whether the Appellant was dismissed or voluntarily resigned was the subject of the jurisdictional objection before the Deputy President.

The parties attended a conciliation conference with a staff conciliator on 27 July 2022 where an offer to settle was made by the Respondent, but the matter did not settle.

The Deputy President issued directions to deal with the jurisdictional objection soon after the conciliation conference. Directions were issued for the filing of materials and a hearing was scheduled for 21 September 2022.

Prior to the hearing, the Deputy President received correspondence from the Appellant and the Respondent that a settlement was reached. The last email from the Appellant was on 16 September 2022 confirming that an agreement had been reached. Consequently, the scheduled hearing was vacated.

On 26 September 2022, the Appellant advised the Deputy President that the email he sent on 16 September 2022, that an agreement was reached, was sent in error. The Appellant sent further emails advising that no agreement was reached. In response, the Deputy President instructed the parties to advise the Commission whether a binding settlement agreement had been reached. The parties remained in dispute as to whether a binding settlement agreement or agreed Deed had been reached and whether the Commission had jurisdiction to conduct further proceedings on the application.

The Deputy President issued directions on 5 October 2022 for the determination of the issues in dispute: whether a binding settlement agreement or Deed had been reached and whether the Commission has jurisdiction to conduct further proceedings on the 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: [2023] FWCFB 56
Decision Date: 15 MARCH 2023

CaseChat Overview and Summary

The matter before the Full Bench of the Fair Work Commission (FWC) was an appeal by Bradley William Lewer (the Appellant) against a decision of Deputy President Anderson (Deputy President), issued on 24 October 2022, which found that a binding settlement agreement was reached between the parties. The appeal required permission under s.604 of the Fair Work Act 2009 (the Act). The appeal was heard on 7 December 2022. The Full Bench was composed of Vice President Catanzariti, Deputy President Bell, and Commissioner Yilmaz. The appeal concerned the Deputy President's finding that a binding settlement agreement had been reached between the parties and whether the Commission had jurisdiction to conduct further proceedings on the application. The Appellant's grounds for appeal included errors in law, lack of procedural fairness, and dissatisfaction with the outcome. The Respondent argued that there was no public interest in granting permission to appeal. The Full Bench found that the Appellant had not demonstrated an arguable case of appealable error. The Full Bench rejected the grounds for appeal, including the Appellant's contentions regarding unilateral mistake, consent, and the validity of the Deed. The Full Bench found that the Deputy President's determination that a binding settlement agreement existed was correct and that the Appellant's application was extinguished by the settlement agreement. The Full Bench concluded that the appeal did not attract the public interest and refused permission to appeal. The Full Bench's decision was based on the evidence and facts presented, and the Deputy President's findings were not in error. The Full Bench found that the Appellant's dissatisfaction with the outcome did not satisfy the public interest to grant an appeal. The Full Bench's decision was in line with the principles governing the FWC in relation to the effect of binding settlement agreements and the Commission's jurisdiction to conduct further proceedings on the application. The Full Bench's decision was consistent with the objects of the Act and the Commission's powers to dismiss an application under s.587 of the Act. The Full Bench's decision was based on the evidence and facts presented, and the Deputy President's findings were not in error. The Full Bench's decision was in line with the principles governing the FWC in relation to the effect of binding settlement agreements and the Commission's jurisdiction to conduct further proceedings on the application. The Full Bench's decision was consistent with the objects of the Act and the Commission's powers to dismiss an application under s.587 of the Act.

Orders