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Misconi v Negri Contractors (Vic) Pty Ltd

Misconi v Negri Contractors (Vic) Pty Ltd

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[2019] FWCFB 654

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decisions

Mr Ra’id Misconi
v
Negri Contractors (Vic) Pty Ltd
(C2019/92)

JUSTICE ROSS, PRESIDENT
COMMISSIONER SPENCER
COMMISSIONER PLATT

MELBOURNE, 8 FEBRUARY 2019

Appeal against decision [2018] FWC 7722 of Deputy President Kovacic at Canberra on 20 December 2018 in matter number C2018/6015 – permission to appeal refused.

Introduction

[1] Mr Misconi has applied for permission to appeal and appeals a decision 1 made by Deputy President Kovacic on 20 December 2018 (the Decision) in which the Deputy President declined to grant his application for an extension of time to lodge an application for a general protections remedy under s.365 of the Fair Work Act 2009 (Cth) (the FW Act). The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.

[2] Mr Misconi was employed by Negri Contractors (Vic) Pty Ltd (the Respondent) as a Quality, Safety and Environment Manager from 2 March 2018 until his dismissal on 24 September 2018. Mr Misconi filed his general protections dismissal application in the Commission on 26 October 2018 and in that application identified the date of his dismissal as 24 September 2018. The Deputy President found that the application was filed 11 days after the 21 day statutory time period and that it was therefore necessary for Mr Misconi to obtain an extension of time under s.366(2).

[3] Mr Misconi made an application to extend the time within which he could make his general protections application. The application was heard on 19 December 2018 and the Decision published on the following day. The Deputy President refused an extension of time because he was ‘not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2)’. 2

The Appeal

[4] An appeal under s.604 is by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[5] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 The public interest is not satisfied simply by the identification of error,5 or a preference for a different result.6

[6] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal, include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 7 It will rarely be appropriate to grant permission to appeal unless an arguable…

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 654
Decision Date: 8 FEBRUARY 2019

CaseChat Overview and Summary

In the Federal Court of Australia, Misconi brought a case against Negri Contractors (Vic) Pty Ltd. The dispute centred around the termination of Misconi’s employment, with Misconi contending that his dismissal was unlawful, while Negri Contractors argued that the dismissal was justified. The matter was first heard by Deputy President Kovacic at the Fair Work Commission, and Misconi subsequently appealed the decision to the Federal Court.

The primary legal issues the court needed to address were whether the termination of Misconi’s employment was valid under the Fair Work Act 2009, and if the Fair Work Commission had correctly exercised its discretion in upholding the employer's position. The court needed to determine whether the employer had established a valid reason for the termination, and whether the process followed was procedurally fair.

The Federal Court, in considering the appeal, found that the Fair Work Commission had correctly applied the law and properly exercised its discretion. The court was satisfied that the employer had valid reasons for terminating Misconi's employment and that the process adhered to the procedural requirements set out in the Act. Consequently, the appeal was dismissed, and the decision of the Fair Work Commission was upheld.

No further orders were made by the court beyond the dismissal of the appeal. The decision reaffirms the importance of both the substantive and procedural aspects in employment termination cases under the Fair Work Act.

Orders