DECISION

Fair Work Act 2009
s.604—Appeal of decision

Mades Efemo
v
SouthLink Pty Ltd
(C2019/3431)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER LEE

SYDNEY, 1 AUGUST 2019

Appeal against decision 2019 FWC 3370 – application dismissed pursuant to s 587 - matter determined without a hearing or determinative conference - contested factual matter about a critical issue – s 397 - conference or hearing required - permission to appeal granted and appeal upheld - matter remitted to Deputy President Clancy to conduct a hearing.

[1] Mr Mades Efemo (the Appellant) has lodged an appeal, for which permission is required, against a Decision 1 and Order2 of Deputy President Clancy issued on 15 May 2019 in which the the Deputy President dismissed the Appellant’s application for an unfair dismissal remedy (the Application).

[2] On 9 July 2019, the matter was listed to deal with the question as to whether permission to appeal should be granted.

[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. 3 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 2018.4 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 to lodge the Application, 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: [2019] FWCFB 5291
Decision Date: 1 AUGUST 2019

CaseChat Overview and Summary

Mades Efemo, a former employee, has appealed against a decision of the Fair Work Commission (FWC) which dismissed his application for unfair dismissal. The matter was heard in the Fair Work Commission Appeal Tribunal. The primary dispute revolves around whether Efemo was constructively dismissed and whether his dismissal was harsh, unjust, or unreasonable. The appeal was filed against the decision of the FWC made on 31 May 2019.

The legal issues the Tribunal was required to decide included whether the FWC correctly exercised its discretion to determine the matter without a hearing or determinative conference, and whether the dismissal was indeed harsh, unjust, or unreasonable. The appeal hinged on the assertion that the FWC erred in law by not holding a hearing or determinative conference, particularly in light of the contested factual matter regarding a critical issue. Efemo argued that the absence of a hearing or conference was unjust because it prevented him from adequately presenting his case and cross-examining witnesses.

The Tribunal granted permission to appeal and found that the FWC erred in law by not holding a hearing or determinative conference. The Tribunal noted that there was a contested factual matter about a critical issue, which necessitated a conference or hearing under section 397. The Tribunal held that the FWC's decision to determine the matter without a hearing or determinative conference was an error of law, and as such, the appeal was upheld. The matter was remitted to Deputy President Clancy to conduct a hearing. The Tribunal found that the contested factual matter required a hearing to ensure that both parties had the opportunity to present their evidence and arguments fully.

Orders