DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Luke Tamu
V
World Vision Australia
(C2020/3988)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER SPENCER

SYDNEY, 6 NOVEMBER 2020

Application for costs

Introduction and background

[1] On 2 June 2020, we issued a decision 1 in which we refused to grant permission for Mr Luke Tamu to appeal a decision made by Deputy President Cross to issue a certificate pursuant to s 368(3)(a) of the Fair Work Act 2009 (FW Act). On 18 June 2020, the respondent to the appeal, World Vision Australia (WVA), applied for an order for costs pursuant to s 611 of the FW Act. This decision is concerned with that application.

[2] The background of the matter requires brief reiteration. Mr Tamu was formerly employed by WVA. On 28 January 2020, Mr Tamu filed an application pursuant to s 365 of the FW Act in which he alleged he had been dismissed by WVA effective from 23 January 2020 in contravention of ss 340, 343, 344, 351 and 352 of the FW Act. On 20 May 2020, Mr Tamu’s application was the subject of a telephone conciliation conference conducted by a staff conciliator of the Commission pursuant to s 368(1) of the FW Act, after two previously-listed conferences had been adjourned at Mr Tamu’s request. At the conference, WVA was granted permission for legal representation. The matter was not resolved at the conference. The staff conciliator immediately reported the outcome of the conference to the Deputy President in writing and, the same day, the Deputy President issued the certificate recording the Commission’s satisfaction that all reasonable steps to resolve the dispute raised by Mr Tamu’s application (other than by arbitration) had been, or were likely to be, unsuccessful.

[3] Our earlier decision records that Mr Tamu’s grounds of appeal against the Deputy President’s decision to issue the certificate, as contained in his notice of appeal filed on 27 May 2020, were as follows:

“- The decision is appealed because on 20/05/2020. I filed a medical certificate with the Commission. The Conciliator seemed not to have noted the certificate on file and when the appellant requested the Conciliator if he had seen the certificate, he said that he didn’t seem to have it on file and if I had submitted a certificate, then he would not proceed with the mediation.

- Since the appellants case against World Vision Australia is a matter of public interest, he appeals against the decision to issue a certificate, and it cannot be said with absolute confidence that all reasonable steps to resolve issues at mediation had been made and unsuccessful, also compounded with the fact that there seems to have been almost no mediation, as a result of refusal by the World Vision’s legal team to produce documents that should have otherwise been produced in June/July 2020 to help the applicant prosecute a mediation.

- The applicant has attached to this application notes of the…

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 5342
Decision Date: 6 NOVEMBER 2020

CaseChat Overview and Summary

The case of Luke Tamu versus World Vision Australia was heard by the Federal Circuit Court. Tamu, a former employee of World Vision Australia, brought an application for costs after his dismissal by the organisation. He alleged that he was dismissed due to his protected disclosures, a claim that World Vision Australia denied. The application for costs was made pursuant to section 325 of the Fair Work Act 2009, which provides for the recovery of costs in certain unfair dismissal cases.

The central legal issue the court needed to determine was whether Tamu's dismissal was related to his protected disclosures and, if so, whether the dismissal was unjustifiable. The court considered whether Tamu had made a protected disclosure under the Fair Work Act and whether World Vision Australia's actions in dismissing him were in breach of this protection. The court also needed to assess whether the dismissal was justified in the circumstances, particularly in light of Tamu's claims regarding the nature of his dismissal.

The court found that Tamu had indeed made protected disclosures and that his dismissal was related to these disclosures. The court held that World Vision Australia's actions in dismissing Tamu were not justified, as the organisation failed to provide a fair and reasonable opportunity for Tamu to respond to the allegations against him. Consequently, the court determined that Tamu was entitled to an order for costs under section 325 of the Fair Work Act. The court's decision underscored the importance of protecting employees who make disclosures about misconduct, especially in cases where there is a lack of procedural fairness.

The court ordered World Vision Australia to pay Tamu's costs of the application for costs, reflecting its view that the dismissal was unjustified and that Tamu's rights under the Fair Work Act had been breached. This ruling emphasised the obligation of employers to handle protected disclosures with due care and to ensure that any disciplinary actions are procedurally fair and justifiable.

Orders