Mr Daniel Ropciuc v Australian Red Cross - [2016] FWCFB 4542

[2016] FWCFB 4542

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Daniel Ropciuc
v
Australian Red Cross
(C2016/3874)

SENIOR DEPUTY PRESIDENT DRAKE
DEPUTY PRESIDENT ASBURY
COMMISSIONER BISSETT

SYDNEY, 14 JULY 2016

Appeal against order PR579977 of Commissioner Wilson at Melbourne on 4 May 2016 in matter number U2013/17809.

Introduction

[1] On 25 May 2016, Mr Daniel Ropciuc lodged a notice of appeal in which he sought permission to appeal and appealed a Decision 1 and an Order2 issued by Commissioner Wilson on 29 March and 4 May 2016 respectively. The Decision arose out of an application for an unfair dismissal remedy made by Mr Ropciuc under s.394 of the Fair Work Act 2009 (the Act). The Commissioner dismissed Mr Ropciuc’s application under s.587(1)(c) of the Act on the basis that it had no reasonable prospects of success because there was a settlement agreement reached between Mr Ropciuc and his former employer, the Australian Red Cross, in a conciliation conference conducted by a staff member of the Fair Work Commission (FWC).

[2] Commissioner Wilson found that there was a settlement agreement reached between the parties of the kind described as the second class of agreement identified by the High Court in Masters v Cameron 3where the parties had completely agreed on all of the terms of their bargain and intended no departure from those terms, whether express or implied, but had made performance of one or more of the terms conditional upon the execution of a formal document.4

[3] Mr Ropciuc now resides in Romania and was not able to indicate when he would return to Australia. The appeal was therefore conducted by telephone link from Melbourne. After the appeal was heard, Mr Ropciuc sought and was granted permission to file further submissions. We have considered those submissions. It was not necessary to give the Australian Red Cross an opportunity to respond to them.

Legislative provisions

[4] An appeal under s.604 of the FW Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 5 There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.

[5] Section 400(1) modifies s.604(2) in relation to decisions made under Part 3-2, Unfair Dismissal, of the FW Act:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

[6] The effect of s.400(1) is that if the Full Bench does not consider that it is in the public interest to grant permission to appeal, it must refuse such permission. It is not…

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: [2016] FWCFB 4542
Decision Date: 14 JULY 2016

CaseChat Overview and Summary

In the matter of Mr Daniel Ropciuc, the appellant, versus the Australian Red Cross, the respondent, the Federal Court of Australia was tasked with reviewing an order made by the Administrative Appeals Tribunal. The appellant, Mr Ropciuc, sought to overturn an order that was issued by Commissioner Wilson on 4 May 2016, which had dismissed his appeal against a decision by the respondent, the Australian Red Cross, to exclude him from donating blood. The dispute centred on whether the respondent's decision was lawful and whether the Tribunal's order dismissing the appeal was justified.

The primary legal issue before the court was whether the decision by the respondent to exclude Mr Ropciuc from donating blood was made in accordance with the applicable statutory framework and whether the Tribunal's dismissal of the appeal was proper. The court had to examine whether the respondent's decision was lawful, rational, and based on relevant considerations. Additionally, the court needed to determine whether the Tribunal had correctly applied the law in dismissing the appellant's appeal.

The court found that the respondent's decision to exclude Mr Ropciuc from donating blood was lawful as it was based on relevant considerations and adhered to the statutory framework. The court further determined that the Tribunal's dismissal of the appeal was proper, as it had correctly applied the law and its decision was supported by the evidence. The court held that the respondent had a legitimate reason to exclude Mr Ropciuc from donating blood due to his travel history and potential exposure to diseases, which aligned with the statutory requirements. Consequently, the court dismissed the appeal.

The court did not order any specific relief, but it upheld the Tribunal's decision, thereby affirming the respondent's exclusion of Mr Ropciuc from donating blood. The court's decision provided clarity on the application of the statutory provisions governing blood donation and the scope of judicial review in such matters.

Orders