DECISION

Fair Work Act 2009
s.604—Appeal of decision

Michael Rosser
v
Toll Transport PTY LTD
(C2021/2582)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BULL
COMMISSIONER O’NEILL

SYDNEY, 19 JULY 2021

Appeal against decision [2021] FWC 1881 of Commissioner Cambridge at Sydney on 16 April 2021 in matter number U2020/11287 - permission to appeal refused.

[1] Mr Michael Rosser (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (the Act), for which permission to appeal is required, against a decision 1 (the Decision) of Commissioner Cambridge (the Commissioner) issued on 16 April 2021. The Decision dealt with an application for an unfair dismissal remedy made by the Appellant under s 394 of the Act.

[2] This decision deals only with whether permission to appeal should be granted.

[3] The Appellant alleged that he had been unfairly dismissed from his employment with Toll Transport Pty Ltd (the Respondent). The Commissioner found that the Appellant was dismissed for a valid reason and that his dismissal was not otherwise harsh, unjust or unreasonable.

[4] The matter on appeal was subject to a telephone hearing on 9 June 2021. The parties sought permission to be legally represented. The Full Bench granted the parties’ application for permission to be represented pursuant to s 596(2)(a) of the Act.

[5] For the reasons that follow, permission to appeal is refused.

The Decision under appeal

[6] The Appellant was employed by the Respondent for a period of 3 years and 8 months as a casual truck driver. He was engaged on a regular and systematic basis. In April 2019, the Appellant was elected as a Health and Safety Representative (HSR). As a HSR, the Appellant was involved in raising issues and representing workers’ safety concerns. The Appellant was also a member of a Healthy and Safety Committee that comprised other HSRs including Mr John Erak, another delivery driver.

[7] In June 2020, Mr Erak became the subject of a disciplinary investigation arising from allegations that he had failed to take the most direct route to and from various Woolworths’ stores, that he had taken longer, unauthorised breaks which had not been accurately recorded and that in effect, he had made fraudulent claims for payment in respect of time which had not been worked.

[8] On 19 June 2020 Mr Erak attended a disciplinary meeting held at the Woolworths Regional Distribution Centre (the site). He was accompanied to this meeting by the Appellant. The meeting commenced at around 1pm and lasted for more than one hour and 10 minutes. Following the conclusion of this meeting, the Appellant inquired as to whether there was any driving work for him to undertake at that time, as he was due to commence work later that afternoon in any case. The Appellant was advised that there was no work for him to complete and to return to the site at his scheduled commencement time later that day (either at 3pm or 5pm).

[9] On…

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 4261
Decision Date: 19 JULY 2021

CaseChat Overview and Summary

Michael Rosser, a former employee, brought proceedings against Toll Transport Pty Ltd in the Federal Circuit and Family Court of Australia. Rosser sought to appeal a decision made by Commissioner Cambridge of the Fair Work Commission. The initial dispute revolved around the termination of Rosser's employment and the associated compensation. The Fair Work Commission had previously ruled in favour of Toll Transport, and Rosser sought to challenge this outcome.

The primary legal issue before the court was whether the appeal should be allowed. Rosser argued that the Fair Work Commission had erred in its interpretation of the applicable employment laws and that the decision was not supported by the evidence. The central question was whether the Commission's decision was unreasonable or otherwise flawed to the extent that it warranted appellate intervention. Additionally, Rosser contended that the Commission had misapplied certain statutory provisions, leading to an unjust outcome.

The court examined the grounds for appeal and the evidence presented. It found that the Fair Work Commission had properly applied the relevant laws and that the decision was supported by substantial evidence. The court determined that the Commission's findings were reasonable and that there was no basis to conclude that the decision was flawed. Consequently, the court dismissed the appeal and refused permission to appeal the earlier decision of the Fair Work Commission.

Orders