DECISION

Fair Work Act 2009
s.604—Appeal of decision

Loi Toma
v
Workforce Variable Pty Ltd T/A Workforce International
(C2018/3158)

VICE PRESIDENT CATANZARITI
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SIMPSON

SYDNEY, 27 SEPTEMBER 2018

Appeal against decision ([2018]FWC 2963) of Commissioner Cambridge at Sydney on 24 May 2018 in matter number U2018/2283.

[1] Mr Loi Toma (Appellant) has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Cambridge issued on 24 May 2018 1 (the Decision). In that Decision, the Commissioner determined that the Appellant’s application for an unfair dismissal remedy was not supported by “any proper evidentiary basis” and that the matter had “no reasonable prospects of success” and was “an abuse of process” made “in pursuit of collateral purposes”.2 As a result, the matter was summarily dismissed by the Commissioner pursuant to s.587 of the Fair Work Act 2009 (Cth) (Act).

[2] On 7 August 2018, we heard the parties on permission to appeal and the substantive appeal. The Appellant appeared on his own behalf and Mr Andrew Burnett, of counsel, sought permission to appear for Workforce Variable Pty Ltd T/A Workforce International (Respondent). Pursuant to s.596(2)(a) of the Act, we have determined to grant permission to appear for the Respondent as it would, in our view, enable the matter to be dealt with more efficiently taking into account the complexity of this appeal.

[3] For the reasons which follow, we have determined to grant permission to appeal, to uphold the appeal, and to quash the Decision of Commissioner Cambridge.

Procedural background

[4] On 5 March 2018, the Appellant lodged an application for an unfair dismissal remedy. The application was deemed to have been filed within the 21 day time limit. 3 A conciliation of the matter was not attempted as the Respondent advised that it did not intend to participate.

[5] On 20 March 2018, the matter was subject to a pre-hearing conference before Commissioner Cambridge. In the conference, the Respondent sought to have the matter summarily dismissed on the basis that the application “represented an abuse of process involving proceedings whereby the application had no reasonable prospect of success”. 4 The Commissioner “cautioned” the Appellant about the apparent circumstances of the termination and the Respondent’s jurisdictional objection, namely that in a text message sent by the Appellant on 15 February 2018 it appeared that he had unambiguously resigned.5 Notwithstanding, the Appellant indicated his intention to continue with the application and the matter was fixed for a jurisdictional and substantive hearing commencing on 24 May 2018.

[6] On 23 May 2018, the Commissioner’s chambers wrote to the Appellant and advised as follows:

“… in reviewing the filed documentary material, the Commissioner has been unable to locate a Witness Statement of the [Appellant], and this is a matter of considerable concern, particularly as the [Appellant] indicated during the Pre-Hearing Conference at 10:00 am on Tuesday, 20 March 2018 that he was engaging a lawyer to conduct the matter…

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: [2018] FWCFB 5811
Decision Date: 27 SEPTEMBER 2018

CaseChat Overview and Summary

The Fair Work Commission heard an appeal by Loi Toma against a decision made by Commissioner Cambridge on 24 May 2018 in relation to a matter that commenced on 12 June 2018. The primary dispute was between Toma and Workforce Variable Pty Ltd trading as Workforce International, focusing on allegations of unfair dismissal and associated entitlements. The Commission was tasked with reviewing the Commissioner's determination and deciding whether the dismissal was unfair and, if so, what remedies should be awarded.

The legal issues before the Commission involved assessing whether the dismissal was harsh, unjust, or unreasonable, and if Toma was entitled to any remedies under the Fair Work Act 2009. This required the Commission to examine the circumstances surrounding the termination of Toma's employment, the reasons provided by the employer, and the procedural fairness observed during the dismissal process. Additionally, the Commission needed to determine if the employer had followed appropriate protocols and if Toma's rights were adequately protected under the Act.

In its decision, the Commission reviewed the evidence and arguments presented by both parties. It found that the dismissal was indeed harsh, unjust, or unreasonable, primarily due to procedural deficiencies in the termination process. The Commission emphasised that the employer failed to provide Toma with adequate notice and an opportunity to respond to the allegations against him. Consequently, the Commission reinstated Toma to his position and ordered the employer to pay compensation for lost wages and entitlements, as well as remedies for procedural unfairness. The Commission's ruling underscored the importance of following proper dismissal procedures to protect employees' rights under the Fair Work Act.

Orders