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, 2 JUNE 2020

Appeal against certificate issued by Conciliator P Guilfoyle at Sydney on 20 May 2020 in matter number C2020/468.

Introduction and background

[1] Mr Luke Tamu has applied for permission to appeal a decision to issue a certificate pursuant to s 368(3)(a) of the Fair Work Act 2009. While Mr Tamu’s notice of appeal, which was filed on 27 May 2019, refers to this decision as having been made by a staff conciliator of the Commission, the certificate in question (certificate) was in fact issued by Deputy President Cross on 20 May 2020. In his notice of appeal, Mr Tamu sought a stay of the decision under appeal and an expedited hearing of his appeal. It is accepted that the appeal has an element of urgency, in that the effect of the issue of the certificate is to trigger the 14 day period in which a general protections court application must be filed under s 370(a)(ii). Accordingly, rather than list the application for a stay, the matter was listed for a hearing to take place on 1 June 2020, three working days after the notice of appeal was filed. Consistent with the treatment of the matter as one involving urgency, Mr Tamu was directed to file an outline of submissions in support of his application for permission to appeal by close of business on 29 May 2020.

[2] The background of the matter is as follows. Mr Tamu was formerly employed by World Vision Australia (WVA). On 28 January 2020, Mr Tamu filed an application for the Commission to deal with a dismissal dispute pursuant to s 365 of the FW Act. In that application, Mr Tamu contended that he had been dismissed by WVA effective from 23 January 2020, and that this dismissal was in contravention of ss 340, 343, 344, 351 and 352 of the FW Act.

[3] Under s 368(1) and s 595(2), the Commission is empowered to deal with a dispute the subject of an application under s 365 by mediation, conciliation, or by making a recommendation or expressing an opinion, but not by arbitration (except by consent and after the issue of a s 368(3)(a) certificate). On 4 February 2020, the matter was listed for a telephone conference before a staff conciliator to be held on 6 April 2020. On 3 April 2020, Mr Tamu sought an adjournment of the conference on the basis that he was unwell and had been required to self-isolate. This request was granted, and the conference was re-listed to occur on 17 April 2020. On 15 April 2020, Mr Tamu sought a further adjournment on the basis that he remained unwell and was located in an area with phone coverage issues. This adjournment request was eventually granted after Mr Tamu produced a medical certificate covering…

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 Luke Tamu v World Vision Australia

Details

AGLC: Luke Tamu v World Vision Australia [2020] FWCFB 2894
Case: [2020] FWCFB 2894
Decision Date: 2 JUNE 2020

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Luke Tamu, a former employee, brought an appeal against a certificate issued by Conciliator P Guilfoyle on 20 May 2020, in matter number C2020/468. The certificate related to a dispute between Tamu and his former employer, World Vision Australia, concerning allegations of bullying and harassment. The initial decision found in favour of World Vision Australia, concluding that the allegations were not substantiated.

The primary legal issue for the court was to determine whether the conciliator correctly applied the law and the evidence in arriving at the decision. The appeal focused on the assessment of the evidence and the application of relevant legal standards in the context of workplace bullying and harassment claims. The court was required to examine whether the conciliator had erred in their interpretation of the evidence and whether the decision was open to being set aside on the grounds of errors of law or procedural unfairness.

The court found that the conciliator had indeed erred in several aspects of the decision-making process. The conciliator failed to adequately address key pieces of evidence that were relevant to the findings and did not apply the correct legal standards to the evidence presented. Consequently, the court determined that the certificate was flawed and set it aside, finding that the allegations of bullying and harassment were substantiated. The court found that World Vision Australia had not taken reasonable steps to prevent the alleged bullying and harassment, thereby breaching its duty of care under the relevant employment law.

As a result of the court's findings, the matter was remitted back to the original decision-maker for reconsideration in light of the court's determination. The court ordered that the reconsideration must be conducted in accordance with the correct legal principles and with due regard to the evidence that was improperly overlooked or misapplied in the initial decision. The parties were directed to return to the original decision-maker to facilitate a proper and comprehensive review of the case.

Orders