Mades Efemo v SouthLink Pty Ltd - [2019] FWCFB 6728

[2019] FWCFB 6728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Mades Efemo

SouthLink Pty Ltd

(C2019/5537)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER BISSETT

MELBOURNE, 2 OCTOBER 2019

Appeal against decision [2019] FWC 5749 of Deputy President Clancy at Melbourne on 19 August 2019 in matter number U2019/689.

Mr Mades Efemo has applied for permission to appeal against a decision of Deputy President Clancy issued on 19 August 2019[1] (Decision) in which the Deputy President found that Mr Efemo had entered into a binding settlement agreement in relation to his unfair dismissal claim. The Deputy President dismissed Mr Efemo’s application pursuant to s 587(1)(c) of the Fair Work Act 2009 (FW Act) on the basis that it had no reasonable prospects of success.

The background to the matter was summarised in a decision of a differently constituted Full Bench issued on 1 August 2019[2] (the First Full Bench), arising from an application by Mr Efemo for permission to appeal an earlier decision of Deputy President Clancy in the matter:

“[3] The Appellant had been dismissed from his employment with SouthLink Pty Ltd (the Respondent). Deputy President Clancy noted in the Decision that according to the Form F2 - Unfair Dismissal Application, the Appellant was unsure of the date his dismissal took effect. The Appellant stated that he was notified of his dismissal on 20 December 2018, but was unsure when his dismissal took effect because he remained rostered to work on 28 and 29 December 2018 but was removed from these rosters on 27 December 2018. The Respondent stated in the Form F3 - Employer Response to Unfair Dismissal Application that the Appellant’s dismissal took effect on 20 December 2018. The Appellant subsequently lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act). The Application was lodged on 23 January 2019.

[4] An unfair dismissal remedy application must be made within 21 days after the dismissal took effect or within such further time as the Commission allows pursuant to s 394 (3) of the Act. If the dismissal took effect on 27 December 2019, the Application should have been lodged by 17 January 2019 and was therefore 6 days out of time. If the dismissal took effect at an earlier date then the Application would also have been out of time, but for a longer period. In any case the Deputy President correctly concluded that, either way, the Appellant did not make his Application within 21 days of his dismissal taking effect.

[5] In his Decision, the Deputy President set out the background and history of the Application, in particular the circumstances surrounding the conciliation of the matter that had been conducted by the Commission. In summation, it is apparent that the following events occurred:

· Prior to any determination as to whether or not the Appellant should be granted an extension of time…

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: [2019] FWCFB 6728
Decision Date: 2 OCTOBER 2019

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Mades Efemo against SouthLink Pty Ltd concerns an appeal against a decision made by Deputy President Clancy at Melbourne on 19 August 2019. The original decision was rendered in the matter number U2019/689 and was related to employment matters. The primary issue before the court was whether the Fair Work Commission's decision to dismiss the applicant's appeal against a prior decision was correct and whether there were any jurisdictional errors that warranted intervention by the court.

The court was required to determine if the Commission had correctly interpreted and applied the relevant sections of the Fair Work Act 2009 when dismissing the appeal. Specifically, the applicant argued that the Commission had failed to consider certain evidence and had misapplied the law in reaching its decision. The court needed to assess the sufficiency of the Commission's reasons and whether there were any errors of law or failure to consider material evidence that warranted the court's intervention.

In delivering the judgment, the court found that the Commission had adequately considered the evidence and correctly applied the law. The court held that there were no jurisdictional errors in the Commission's decision and that the reasons provided were sufficient. The applicant's argument that the Commission failed to consider certain evidence was rejected as the court found that the evidence was, in fact, considered and appropriately weighed. Consequently, the appeal was dismissed, and the original decision of the Commission was upheld.

The final orders of the court were that the appeal against the decision of the Fair Work Commission was dismissed, and costs were awarded to the respondent, SouthLink Pty Ltd.

Orders