Mr Kenneth Carruthers v Johnson Meats
[2015] FWCFB 6765
•13 OCTOBER 2015
| [2015] FWCFB 6765 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Johnson Meats
(C2015/4854)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 13 OCTOBER 2015 |
Appeal against the oral decision of Commissioner Lee at Melbourne on 30 June 2015 in matter number U2015/7740.
[1] On 30 June 2015 Commissioner Lee issued a decision in transcript dismissing an application by Kenneth John Carruthers for an extension of time in which to lodge a s.394 application for an unfair dismissal remedy under the Fair Work Act 2009 (‘the Act’). On 2 July 2014 he issued an order dismissing the application 1.
[2] On 21 July 2015 Mr.Carruthers lodged an appeal against the decision. Mr.Carruthers alleged that he had been bullied, that the foreman pushed over a worker, that a girl resigned, and a number of other matters concerning events at Johnson Meats. The grounds did not address the issue of whether or not there was an error in the decision of Commissioner Lee, or whether permission to appeal should be granted.
[3] Mr.Carruthers was directed to file and serve an outline of submissions addressing the issue of why it is in the public interest to grant permission to appeal, and if the appeal is on a question of fact, what is the significant error of fact involved in the decision. The matter was listed for hearing on 29 September 2015. At the conclusion of the hearing we indicated that we would refuse the application for permission to appeal and dismiss the appeal. These are our reasons for decision.
[4] As the decision was from an unfair dismissal decision, s.400 applied to the appeal. That section provides:
‘400 Appeal rights
(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.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.’
[5] Factors that might invoke the public interest have been held to include where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counterintuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters2.
Submissions
[6] Mr.Carruthers provided a written submission, and oral submissions, which again did not address the requirements of the Act with respect to appeals. The submission dealt again with a number of matters relating to events at Johnson Meats. Mr Carruthers submitted that the actions which led to his dismissal were provoked and that there were extenuating circumstances. We are satisfied that these submissions were properly considered by Commissioner Lee. We are not satisfied that Mr Carruthers has demonstrated that there was any error of fact or injustice in Commissioner Lee’s decision.
Appeal
[7] We are not satisfied that there are factors which invoke the public interest in this matter. We refuse to grant permission to appeal. We dismiss the appeal. An Order is contained in PR572833.
DEPUTY PRESIDENT
Appearances:
Mr K Carruthers the appellant
Mr T Russell of the Respondent
Hearing details:
2015:
Melbourne and Perth (by video)
September 29
1 PR569000
2 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266.
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