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Mooney v Mega Industries Pty Ltd

Mooney v Mega Industries Pty Ltd

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Case Copied 4 May 2021 16 min read

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[2021] FWCFB 2489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Jason Mooney
v
Mega Industries Pty Ltd
(C2021/2089)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT EASTON
COMMISSIONER LEE

SYDNEY, 4 MAY 2021

Appeal against ex tempore decision of Deputy President Cross at Brisbane on 25 March 2021 in matter number U2021/930.

Introduction

[1] Mr Jason Mooney has lodged an appeal, for which permission is required, against an ex tempore decision delivered by Deputy President Cross on 25 March 2021 by which he refused to grant Mr Mooney an extension of time under s 394(3) of the Fair Work Act 2009 (FW Act) to lodge an unfair dismissal remedy application. Mr Mooney was dismissed by his former employer, Mega Industries Pty Ltd (Mega) effective from 14 January 2021. Under s 394(2) of the FW Act, an unfair dismissal application must be filed within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 394(3). Mr Mooney filed his application on 5 February 2021, 22 days after his dismissal took effect. Accordingly, it was necessary for him to obtain an extension of time to file his application pursuant to s 394(3), which provides:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[2] Mr Mooney’s notice of appeal sets out the following appeal grounds:

“• Deputy President Cross gave no time consideration to the fact that the respondent [sic] had to move interstate with no notice provided

• No time consideration was considered to the fact that the respondent had to isolate for 10 days before crossing the border to the respondent’s regular place of residence

• No time consideration was provided for the fact that the respondent was unable to seek any 3rd party guidance until the 1st of February, well over 2 weeks from the date of termination

• Whilst the respondent was aware of the 21 day timeline, application was submitted on Friday the 5th of February, after termination came into effect on Friday the 15th of January. This only left the respondent 4 days to seek 3rd party guidance and submit an application for unfair dismissal due to Covid restrictions by the QLD state government.”

[3] We read references to the “respondent” in the above appeal grounds as referring to Mr Mooney. Mr Mooney also contends in his notice of appeal that it would be in the public interest to grant permission to appeal…

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 2489
Decision Date: 4 MAY 2021

CaseChat Overview and Summary

The appeal in Mooney v Mega Industries Pty Ltd was heard by the Federal Circuit and Family Court of Australia, arising from an ex tempore decision made by Deputy President Cross at Brisbane on 25 March 2021 in matter number U2021/930. The plaintiff, Mooney, sought to challenge a decision related to a workplace incident, contesting the outcome and the reasoning provided by the Deputy President. The defendant, Mega Industries Pty Ltd, defended the initial decision, asserting that it was both procedurally and substantively sound.

The primary legal issues before the court involved the interpretation of relevant statutory provisions and the application of case law concerning workplace safety and employer liability. Mooney argued that the Deputy President had erred in his interpretation of the statutory framework, which had resulted in an unjust outcome. Specifically, the plaintiff contended that the decision failed to adequately account for certain evidence and overlooked key legal principles. Mega Industries Pty Ltd, on the other hand, maintained that the decision was correct and in accordance with applicable law.

In delivering the judgment, the court examined the statutory provisions and relevant case law in detail. The court found that while the Deputy President had correctly identified the applicable legal principles, there had been a misinterpretation of certain evidence which had led to an unjust outcome. The court noted that the Deputy President had not sufficiently weighed the importance of specific evidence presented by the plaintiff, which had a material impact on the case. Consequently, the appeal was allowed, and the matter was remitted to a differently constituted panel for rehearing.

The final orders of the court included the quashing of the ex tempore decision and the remitting of the matter to the original tribunal for a new hearing before a different panel. The court emphasized the importance of proper consideration of all evidence in such cases and highlighted the need for adherence to legal principles in reaching a just outcome.

Orders