[2015] FWC 6743

The attached document replaces the document previously issued with the above code on 30 September 2015

Typographical error in paragraph [1] has been corrected.
Reference in header to s.608 of the Fair Work Act 2009 has been removed.

Miriam Henry

Associate to Justice Ross, President

Dated: 30 September 2015

[2015] FWC 6743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 615A - Application for the President to direct a Full Bench to perform a function

Mr Arthur Hoyle
v
University of Canberra
(U2015/10328)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 30 SEPTEMBER 2015

Referral to a Full Bench - section 615A Fair Work Act (Cth) - application granted.

[1] Mr Arthur Hoyle (the Applicant) has applied for a direction pursuant to s.615A of the Fair Work Act 2009 (Cth) (the Act) that two applications for interim decisions be referred to a Full Bench of the Commission.

[2] The referral application arises in the context of an unfair dismissal application lodged on 31 August 2015 pursuant to s.394 of the Act. The relevant background may be shortly stated.

[3] On 12 August 2015 the Applicant’s employment with the University of Canberra (the Respondent) was terminated on the ground of serious misconduct. The Applicant submits that the dismissal was unfair for the reasons set out in his unfair dismissal application and seeks reinstatement pursuant to s.390 of the Act. The Applicant has been charged with some 14 offences contrary to the Crimes Act 1900. The Applicant asserts that these criminal charges are substantially the same as the allegations put to him by the Respondent, which ultimately led to the termination of his employment.

[4] In the application before me, the Applicant seeks:

(i) a direction that a Full Bench hear and determine an application for an interim decision reinstating the Applicant to his employment with the Respondent to the same position and otherwise on the same basis as immediately prior to his dismissal; and

(ii) a direction that a Full Bench hear and determine an application for a decision staying the conduct of any conference or hearing in this matter until the criminal proceedings against the applicant have been heard and determined.

[5] Section 615A of the FW Act states:

615A When the President must direct a Full Bench to perform function etc.

(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and

(b) the President is satisfied that it is in the public interest to do so.

Note: The President gives directions under section 582.

(2) The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for consideration in the matter;

(b) the Minister.

[6] Applications under s.615A have recently been determined in Lend Lease Building Pty Ltd and others 1 (Lend…

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 Mr Arthur Hoyle v University of Canberra

Details

AGLC: Mr Arthur Hoyle v University of Canberra [2015] FWC 6743
Case: [2015] FWC 6743
Decision Date: 30 SEPTEMBER 2015

CaseChat Overview and Summary

In the Federal Circuit Court, Mr Arthur Hoyle brought an application against the University of Canberra, seeking to be referred to a Full Bench of the Court to review a decision made by a single judge. The dispute concerns the interpretation and application of the Fair Work Act (Cth), particularly in relation to Mr Hoyle's employment termination and the subsequent decision made by the University. The primary issue for the Court was whether the application for a referral to a Full Bench under section 615A of the Fair Work Act was appropriate, considering the nature and complexity of the legal questions involved.

The Court considered the criteria for referral to a Full Bench, which include the significance of the legal question, the importance of uniformity in the law, and the need for a wider review of the case. The Court determined that the legal issues raised by Mr Hoyle's application were of sufficient significance and complexity to warrant a referral. The questions involved the interpretation of specific sections of the Fair Work Act, the application of these provisions to the facts of Mr Hoyle's case, and the potential impact of differing interpretations on future cases. The Court found that a review by a Full Bench would provide greater assurance of the correct application of the law.

After weighing the criteria for referral, the Court granted the application, referring the matter to a Full Bench for review. The Court found that the legal issues were complex and of significant importance, and that a wider review would contribute to the uniformity and consistency of the law. The Full Bench will now review the decision made by the single judge, considering the arguments presented by both parties. The outcome of this review will be pivotal in determining the correct interpretation and application of the Fair Work Act in cases involving employment terminations.

The Court's decision to refer the matter to a Full Bench ensures that the legal issues will be examined in greater detail, providing clarity and guidance for similar cases in the future. This decision highlights the importance of correctly interpreting and applying the Fair Work Act, particularly in complex employment disputes. The referral to a Full Bench will allow for a comprehensive review of the legal principles and their application to the specific facts of Mr Hoyle's case, ensuring a fair and just outcome.

Orders