Metecno Pty Ltd T/A Bondor v I Cameron - [2014] FWCFB 1207

[2014] FWCFB 1207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Metecno Pty Ltd T/A Bondor
v
I Cameron
(C2013/7529)

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT KOVACIC COMMISSIONER WILSON	MELBOURNE, 19 FEBRUARY 2014

Appeal against decision [[2013] FWC 8902] of Commissioner Deegan at Canberra on 13 November 2013 in matter number U2013/7743 - Appeal dismissed.

[1] On 4 December 2013, Metecno Pty T/A Bondor (the Appellant) filed an appeal, pursuant to s.604 of the Fair Work Act 2009 (the Act) against the decision of Commissioner Deegan of 13 November 2013 1 in U2013/7743. The decision concerned an application under s.394 of the Act by Mr I Cameron (the Respondent) seeking relief in respect of the termination of his employment by the Appellant.

[2] In her decision, Commissioner Deegan found that the manner in which the termination occurred was harsh (s.385(b) of the Act), the Respondent had been unfairly dismissed (s.385) and made an order for compensation in lieu of reinstatement (s.392 of the Act).

Approach to the Appeal

[3] An appeal under s.604 of the Act in a matter of this kind, concerning a decision made under Part 3–2 (Unfair Dismissal) is subject to s.400 of the Act, which provides:

“400 Appeal rights

(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by FWA in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

[4] A Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin C 2 considered the impact of s.400 of the Act on the approach to granting permission to appeal:

“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]

[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal…

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: [2014] FWCFB 1207
Decision Date: 19 FEBRUARY 2014

CaseChat Overview and Summary

Metecno Pty Ltd, trading as Bondor, appealed a decision made by Commissioner Deegan at the Fair Work Commission (FWC) on 13 November 2013 in matter number U2013/7743. The original decision, [[2013] FWC 8902], involved a dispute concerning the dismissal of an employee, I Cameron, by Metecno. The primary contention was whether the dismissal was unfair and unlawful under the Fair Work Act 2009.

The appeal before the court focused on the legal sufficiency of the reasons provided by Commissioner Deegan for finding that the dismissal was unfair. Specifically, the court examined whether the reasons were adequate to justify the conclusion reached. Additionally, the court needed to determine if there were procedural errors in the way the FWC handled the matter that warranted a different outcome.

In dismissing the appeal, the court found that the reasons provided by Commissioner Deegan were legally sufficient and procedurally sound. The reasoning was considered thorough and transparent, adequately addressing the evidence and applicable law. The court concluded that the FWC did not err in finding the dismissal unfair and therefore upheld the original decision. The appeal was dismissed without any additional orders.

Orders