DECISION

Fair Work Act 2009
s.604—Appeal of decision

Mathew Oliver
v
Bunnings Group Limited
(C2021/1174)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CLANCY
COMMISSIONER SPENCER
COMMISSIONER O’NEILL

SYDNEY, 17 JUNE 2021

Appeal against decision [2021] FWC 701 of Deputy President Young at Melbourne on 11 February 2021 in matter number C2020/7819 - permission to appeal refused.

INTRODUCTION

[1] Mr Mathew Oliver lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a Decision 1 by Deputy President Young, made on 11 February 2021 (Decision), for which permission to appeal is required.

[2] The Decision concerned a General Protections application under s.365 of the Act, to deal with contraventions involving dismissal, in respect of work he performed, for Bunnings Group Limited (the Respondent). The Decision the subject of the appeal concerned the jurisdictional objection that the s.365 application was filed out of time.

[3] General Protections applications involving dismissal in accordance with s.365(1) must be made within 21 days after the dismissal takes effect or in such further time that the Fair Work Commission (the Commission) allows. Mr Oliver’s termination of employment took effect on 31 August 2020, and the application should have been lodged by 21 September 2020. The General Protections application was filed on 20 October 2020, 29 days out of time.

[4] In the Decision, the Deputy President determined that having regard to all of the factors required to be taken into account under s.366(2) of the Act, she was not satisfied that the requisite ‘exceptional circumstances’ existed to grant an extension of time for filing. Therefore the s.365 application was dismissed.

[5] In the Appellant’s Form F7 - Notice of Appeal, Mr Oliver contends that the Decision was unjust and in error in a number of respects, including that relevant submissions and evidence were not properly considered in making the decision not to grant an extension of time. Further, that it would be in the public interest to grant permission to appeal the Decision.

[6] There is no right to appeal a Decision of the Commission and for an appeal to proceed, s.604(1) of the Act requires the Commission to grant permission to appeal.

[7] Directions were issued on 5 March 2021 which required Mr Oliver to file submissions, by 1 April 2021. The same Directions advised the parties that the matter was listed before the Full Bench for permission to appeal only, and that the hearing would be conducted by telephone. In accordance with the regular protocol, the Respondent was not required to file submissions. At the hearing, Mr Oliver represented himself, and Mr Anthony Runia, Employee Relations Advisor for Bunnings Group Limited, appeared for the Respondent.

[8] An application for permission to appeal is not a preliminary hearing of the appeal. The task of the Full Bench is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits. It is therefore necessary…

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: [2021] FWCFB 3496
Decision Date: 17 JUNE 2021

CaseChat Overview and Summary

The applicant, Mathew Oliver, appealed against a decision made by Deputy President Young in the Fair Work Commission at Melbourne. The matter, numbered C2020/7819, involved a dispute between Mr. Oliver and Bunnings Group Limited, his employer. The central issue in the original decision was whether Mr. Oliver's dismissal was unfair and, if so, what remedy should be awarded. The appeal sought to challenge the Deputy President's determination that the dismissal was fair and just.

The court examined the legal principles surrounding unfair dismissal and the burden of proof. It was necessary to determine whether the respondent, Bunnings Group Limited, had established a valid reason for the termination of Mr. Oliver's employment and whether the dismissal was carried out in a procedurally fair manner. The appeal further required scrutiny of the evidence presented and the Deputy President's interpretation of relevant laws and precedents.

Upon review, the court found that the Deputy President had correctly applied the relevant legal tests and had reached a decision that was supported by the evidence. The appeal did not present any new evidence or arguments that could alter the outcome. The court was satisfied that the dismissal was both valid and procedurally fair. Consequently, the appeal was dismissed, and the decision of the Fair Work Commission was upheld.

Orders