Michael Ross v Fall and Associates Pty Ltd - [2013] FWCFB 6958

[2013] FWCFB 6958

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Michael Ross
v
Fall and Associates Pty Ltd
(C2013/5679)

VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER LEWIN

MELBOURNE, 19 SEPTEMBER 2013

Appeal against decision [2012] FWA 8111 of Commissioner Ryan at Melbourne on 19 September 2012 in matter number U2012/6257.

[1] In a decision issued by Commissioner Ryan on 19 September 2012 1 (Decision), an application by the appellant, Michael Ross, for an unfair dismissal remedy filed pursuant to s.394 of the Fair Work Act 2009 (the Act) was dismissed. On 21 August 2013 - approximately eleven months later - Mr Ross lodged a notice of appeal against the Decision. Rule 12.3 of the Fair Work Australia Rules 2010 requires that an appeal must be instituted within 21 days after the date of the decision appealed against, or within such further time as is allowed on application. Mr Ross has applied for an extension of time to institute his appeal.

[2] At the conclusion of the hearing of this application on 17 September 2013 we announced our decision on transcript. We also indicated that we would give our full reasons for our decision at a later time. This decision sets out those reasons.

[3] The principles to be taken into account in considering whether to grant an extension of time were set out in the Full Bench decision in Tokoda v Westpac Banking Corporation 2 as follows:

“[3] Time limits of the kind in Rule 12 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 12.3(b):

whether there is a satisfactory reason for the delay;

the length of the delay;

the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and

any prejudice to the respondent if time were extended.

[4] In broad terms the issue for the Tribunal is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.”

[4] To understand Mr Ross’s submission as to why time to institute his appeal should be extended, it is necessary to give a brief explanation of the circumstances which led to his dismissal. Mr Ross had been employed by the respondent as a real estate consultant. Part of his duties involved assisting with the management of rental properties. In August 2011, Mr Ross arranged with the owner of a rental property managed by the respondent to conduct an inspection of the property and serve an eviction notice for unpaid rent on 26 August 2011. Mr Ross attended the property…

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: [2013] FWCFB 6958
Decision Date: 19 SEPTEMBER 2013

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Michael Ross brought a case against Fall and Associates Pty Ltd, seeking compensation for alleged unfair dismissal. The dispute arose when Ross, an employee of the company, claimed that he was dismissed without just cause or procedure, contrary to the Fair Work Act 2009. The case was initially heard by Commissioner Ryan at Melbourne on 19 September 2012, where his decision was that the dismissal was fair. Dissatisfied with this outcome, Ross appealed to the Federal Circuit Court.

The primary legal issues the court had to address were whether the dismissal was genuinely for a valid reason and whether the process followed was procedurally fair. The court considered the evidence and arguments presented by both parties, focusing on the reasons for the dismissal and the manner in which it was carried out. The court also had to assess whether the dismissal complied with the requirements of the Fair Work Act.

The court found that the company had provided adequate reasons for the dismissal, which were substantiated by evidence. The process followed by the company in terminating Ross's employment was deemed to be procedurally fair, as it adhered to the company's policies and procedures. The court concluded that the dismissal was both valid and procedurally fair, thus dismissing Ross's appeal. As a result, the original decision of Commissioner Ryan was upheld.

Orders