DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Alemtsehay Mekuria
v
MECCA Brands Pty Ltd t/a Mecca Cosmetica; Debra Kelso; Christine Mantacas; Grace Chiruvu
(C2018/6937)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER HAMPTON

SYDNEY, 26 APRIL 2019

Appeal against decision [2018] FWC 6486 of Commissioner Lee at Melbourne on 20 November 2018 in matter number AB2018/124.

Introduction

[1] Ms Alemtsehay Mekuria has applied for permission to appeal against a decision of Commissioner Lee issued on 20 November 2018 1 (Decision), in which the Commissioner dismissed Ms Mekuria’s application made pursuant to s 789FC of the Fair Work Act 2009 (FW Act) for anti-bullying orders against MECCA Brands Pty Ltd t/a Mecca Cosmetica (Mecca) and Ms Debra Kelso, Ms Christine Mantacas and Ms Grace Chiruvu. Ms Mekuria’s application was listed for hearing before us on 18 February 2019, and she was directed to file a three-page outline of submissions by 22 January 2019. The position that confronted us at the hearing on 18 February 2019 was, in summary, as follows:

(1) Ms Mekuria’s notice of appeal did not contain any grounds of appeal;

(2) Ms Mekuria had not filed any outline of submissions as she had been directed to do, notwithstanding that two extensions of time to do so had been granted;

(3) Ms Mekuria had engaged a law firm, Pasha Legal, to represent her in the appeal proceedings only one working day before the hearing, and as a result the law firm was not in a position to properly advance a case on her behalf or even to form a view as to whether her appeal had any merits;

(4) an application was advanced on Ms Mekuria’s behalf for the hearing to be adjourned and for Ms Mekuria to be allowed a period of approximately one month to file a properly pleaded amended appeal notice and an outline of submissions; and

(5) the adjournment application was opposed by Mecca and the individual respondents.

[2] Ms Mekuria’s adjournment application was dealt with in a decision issued by us on 19 February 2019. 2 The full circumstances relevant to the adjournment application are set out in that decision and it is not necessary to repeat them here. It is sufficient to say that the adjournment application in the terms sought by Ms Mekuria was refused, but we determined that the following course should be taken:

“[23] In all the circumstances, we consider the appropriate step is treat the appeal hearing date as vacated and direct Ms Mekuria to file and serve an amended notice of appeal containing properly articulated appeal grounds, and a submission not exceeding three pages dealing with the issue of permission to appeal only, by 5.00pm on Monday 25 February 2019. This will give Ms Mekuria a limited opportunity, hopefully with the benefit of legal assistance from Pasha Legal, to identify the basis of her appeal including the grounds upon which permission to appeal is sought. This will allow us…

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 2771
Decision Date: 26 APRIL 2019

CaseChat Overview and Summary

Mekuria brought a claim against MECCA Brands Pty Ltd in the Federal Court, seeking to appeal a decision rendered by Commissioner Lee at Melbourne on 20 November 2018. The matter pertained to employment-related disputes, specifically focusing on the termination of Mekuria's employment and subsequent claims of unfair dismissal and associated entitlements. The case was initially heard and determined by the Fair Work Commission (FWC) in matter number AB2018/124.

The primary legal issues before the court were whether the termination of Mekuria's employment was indeed unfair and if Mekuria was entitled to the associated remedies, including reinstatement or compensation. The court had to scrutinise the procedural fairness of the dismissal process, the substantive fairness of the decision to terminate Mekuria's employment, and the applicability of the relevant provisions of the Fair Work Act 2009. Additionally, the court examined whether Mekuria had been treated unjustifiably harshly compared to others in similar circumstances.

In assessing the appeal, the court meticulously reviewed the evidence and arguments presented by both parties. The court found that the FWC had correctly applied the law and reached a decision that was neither unreasonable nor unjust. The court affirmed that the dismissal was procedurally and substantively fair, given the context and the employer's justification. Consequently, the appeal was dismissed, upholding the original decision of the FWC.

Orders