Mark Howlett v Burst Group Pty Ltd - [2025] FWCFB 18

[2025] FWCFB 18

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Mark Howlett
v

Burst Group Pty Ltd

(C2024/9261)

DEPUTY PRESIDENT MILLHOUSE

DEPUTY PRESIDENT O’NEILL
COMMISSIONER CONNOLLY

MELBOURNE, 11 FEBRUARY 2025

Appeal against order PR781976 of Deputy President Bell at Melbourne on 3 December 2024 in matter number U2024/10994 – permission to appeal refused.

Mr Mark Howlett has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision Deputy President Bell delivered ex tempore on 3 December 2024, for which permission to appeal is required. In the decision, the Deputy President determined that Mr Howlett was not unfairly dismissed from his employment with the respondent, Burst Group Pty Ltd and ordered[1] that Mr Howlett’s application under s 394 of the Act for an unfair dismissal remedy be dismissed.

The Deputy President published written reasons for his decision on 24 December 2024 which noted that reasons had been given more fulsomely on transcript, a copy of which had been circulated to the parties.[2]

The matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.

Decision under appeal

In his decision, the Deputy President relevantly determined as follows:[3]

(a)Mr Howlett was dismissed from his employment with the respondent on 10 September 2024. The Deputy President accepted the evidence of the business owner, Mr Coates, that Mr Howlett was dismissed because his job was no longer required to be performed because of operational requirements of the respondent. It was not reasonable in the circumstances for Mr Howlett to have been redeployed.
(b)Nevertheless, the dismissal was not a “genuine redundancy” because the requirements for written consultation under the applicable modern award were not met.
(c)In the assessment of the dismissal against the requirements of s 387 of the Act, the Deputy President was satisfied the dismissal was the result of a factual or bona fide redundancy and Mr Howlett was told about the reasons for dismissal (albeit, not in writing but taking into account the respondent’s status as a small business). The Deputy President was satisfied that the evidence made it clear that no different outcome would have followed had different procedures been adopted. The Deputy President concluded that in all the circumstances, the dismissal was not harsh, unjust or unreasonable.

Permission to appeal – principles

There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an…

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 Mark Howlett v Burst Group Pty Ltd

Details

AGLC: Mark Howlett v Burst Group Pty Ltd [2025] FWCFB 18
Case: [2025] FWCFB 18
Decision Date: 11 FEBRUARY 2025

CaseChat Overview and Summary

In the matter of Mark Howlett v Burst Group Pty Ltd, the applicant, Mr Mark Howlett, sought an appeal against a decision of Deputy President Bell, who found that he was not unfairly dismissed from his employment with the respondent, Burst Group Pty Ltd. The appeal was lodged under section 604 of the Fair Work Act 2009 and required permission from the Fair Work Commission. The Commission was tasked with determining whether permission to appeal should be granted, considering the grounds provided by Mr Howlett. The Deputy President had previously ruled that Mr Howlett's dismissal was due to operational requirements and did not meet the criteria for a genuine redundancy. He also concluded that the dismissal was not harsh, unjust, or unreasonable.

The key legal issues before the Commission were whether the Deputy President's decision involved a significant error of fact or law and whether the appeal was in the public interest. The Commission considered the grounds of appeal, which included allegations about deficiencies in the consultation process, errors in the respondent's evidence, and procedural issues. The Commission evaluated whether these grounds presented an arguable case of appealable error, as required by section 400 of the Act.

After reviewing the evidence and the Deputy President's findings, the Commission determined that Mr Howlett had not demonstrated an arguable case of appealable error. The Deputy President's acceptance of the respondent's evidence regarding the financial position and operational requirements was deemed credible. The Commission found no significant errors in the Deputy President's assessment of the evidence or the conclusions drawn. The appeal grounds primarily reiterated arguments from the original proceedings without presenting new evidence or arguments that would warrant a different outcome. Consequently, the Commission found that the appeal did not meet the stringent criteria for permission under section 400 of the Act, and permission to appeal was refused.

Permission to appeal is refused.

Orders