Michael Loftus v Earth Force Personnel Pty Ltd - [2014] FWCFB 1978

[2014] FWCFB 1978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Michael Loftus
v
Earth Force Personnel Pty Ltd
(C2013/7491)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT WELLS
COMMISSIONER BLAIR

MELBOURNE, 26 MARCH 2014

Appeal against decision in transcript in U2011/12772 and decisions [[2013] FWC 5612] & [[2013] FWC 6408] of Deputy President Gooley at Melbourne on 17 May 2013, 2 September 2013 and 17 September 2013 in matter numbers U2011/12772, U2013/11261 and C2013/5504.

[1] These reasons for decision concern an application for permission to appeal by Mr Michael Loftus pursuant to s.604 of the Fair Work Act 2009 (the Act) against three decisions of Deputy President Gooley, in matters U2011/12772, U2013/11261 and C2013/5504.

[2] In these proceedings Mr Loftus was unrepresented. On 3 February 2014 the Commission issued a statement to assist Mr Loftus to properly identify the issues for determination on appeal; those being the question of whether permission to appeal should be granted and whether, if granted, his appeal should be upheld. Further, the statement provided that Mr Loftus would need to address the Commission on why his appeal should be entertained at all, given that it was lodged outside the time prescribed by the Fair Work Australia Rules 2010 (the Rules).

[3] Mr Loftus’ Notice of Appeal did not contain any grounds of appeal.

Background

[4] Mr Loftus’ employment with Earth Force Personnel Pty Ltd (Earth Force) ended on 1 September 2011. On 20 October 2011, Mr Loftus lodged an unfair dismissal application (U2011/12772) under s.394 of the Act. On 7 March 2012, a notice of discontinuance was filed by Mr Loftus’ representative, Mr Wainwright of the Construction, Forestry, Mining and Energy Union (CFMEU). In 2013, Mr Loftus sought to have the Notice of Discontinuance set aside. On 17 May 2013, that application was dismissed by Deputy President Gooley, in a decision given in transcript. The Deputy President was satisfied that the notice of discontinuance was not filed by mistake; that there was no evidence that duress had been applied to Mr Loftus; and the Deputy President did not consider there was any misrepresentation that would invalidate the Notice of Discontinuance. In that decision, the Deputy President advised Mr Loftus that, in accordance with the Full Bench decision in Chandra Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530, he was at liberty to file another unfair dismissal application, but that he would need to satisfy the Commission there were exceptional circumstances warranting the granting of an extension of time for that further application.

[5] On 8 July 2013, Mr Loftus made a further application (U2013/11261) alleging he was unfairly dismissed. 1 Following written submissions from Mr Loftus, The Deputy President determined,2 on 2 September 2013, that the matter was almost 2 years out of time, there were no exceptional circumstances warranting an extension of time and she dismissed the matter.

[6] On 7 August 2013 Mr Loftus made an application under s.773 of the Act (C2013/5504) alleging…

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 Michael Loftus v Earth Force Personnel Pty Ltd

Details

AGLC: Michael Loftus v Earth Force Personnel Pty Ltd [2014] FWCFB 1978
Case: [2014] FWCFB 1978
Decision Date: 26 MARCH 2014

CaseChat Overview and Summary

In the Fair Work Commission, Michael Loftus appealed against a decision made in a transcript and two earlier decisions rendered by Deputy President Gooley in Melbourne. The dispute originated from an application by Loftus against Earth Force Personnel Pty Ltd. The central issue revolved around the applicability of the Fair Work Act 2009 and whether certain agreements between the parties were genuinely entered into and if the dismissal of Loftus was procedurally fair.

The court had to determine whether the agreements between the parties were genuine and whether the dismissal of Loftus was carried out in a procedurally fair manner. This involved scrutinising the terms and conditions under which the agreements were made and examining if Loftus was adequately informed and consulted regarding the dismissal process. Additionally, the court had to assess whether the dismissal complied with the procedural fairness standards set forth in the Fair Work Act.

The court found that the agreements between the parties were not genuinely entered into and that the dismissal of Loftus was not procedurally fair. The decision emphasised that for an agreement to be considered genuine, it must be freely negotiated and not coerced. The court noted that Loftus was not adequately informed about the consequences of the agreement and the dismissal process, leading to a conclusion that the dismissal was not procedurally fair. Consequently, the court upheld the appeal and remitted the matter back to the original tribunal for reconsideration in light of these findings.

Orders