DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Robert Elliott
v
Transdev WA Pty Ltd
(C2019/1298)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT COLMAN
COMMISSIONER BISSETT

SYDNEY, 23 APRIL 2019

Appeal against decision of Deputy President Binet ([2019] FWC 812) at Perth on 8 February 2019 in matter U2018/9361

Introduction

[1] Mr Robert Elliott has lodged an appeal, for which permission is required, against a decision issued by Deputy President Binet on 8 February 2019 (Decision), 1 in which she concluded that Mr Elliott’s dismissal by Transdev WA Pty Ltd (Transdev) was not unfair, and dismissed his application for an unfair dismissal remedy.

[2] Mr Elliott was employed by Transdev as a bus driver from 21 May 2012 until his dismissal on 29 August 2018. He was dismissed following a road rage incident that occurred on 16 August 2018 during which he used inappropriate hand gestures and obscene language while driving a Transdev bus with passengers on board. Mr Elliott had previously received several warnings about his performance and conduct. At the time of the road rage incident Mr Elliott was on a final written warning that had been issued to him on 10 April 2018 for having driven through a red light and collided with another vehicle.

[3] The Deputy President concluded that Transdev had a valid reason for dismissing Mr Elliott connected to the road rage incident and his prior conduct and performance, and that he was notified of that reason and provided with an opportunity to respond to it. She concluded that in all the circumstances, his dismissal was not harsh, unjust or unreasonable, and therefore not unfair.

[4] An appeal under s 604 of the Fair Work Act 2009 (FW Act) is an appeal 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. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[5] This is an appeal to which s 400 of the FW Act applies. Section 400(1) states that the Commission“must not” grant permission to appeal unless it considers that it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be made on the ground that the decision involved a significant error of fact. In Coal & Allied Mining Services Pty Ltd v Lawler and others the Federal Court characterised the test under s 400 as “stringent”. 3

[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 Considerations that may attract the public interest include where the matter raises issues of importance and general application, where there is a diversity of decisions at first instance, where the decision manifests an injustice or the result is counterintuitive, or where the legal principles applied…

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 2740
Decision Date: 23 APRIL 2019

CaseChat Overview and Summary

In the Fair Work Commission, Mr Robert Elliott appealed against a decision of the Deputy President Binet, handed down on 8 February 2019 in Perth. The appeal was in relation to a matter that arose from the termination of Mr Elliott's employment by Transdev WA Pty Ltd. The primary dispute centred on whether the termination of Mr Elliott's employment was unfair and if he was entitled to compensation.

The legal issues that the Court was required to decide included whether the termination of Mr Elliott's employment was harsh, unjust or unreasonable as defined by section 383 of the Fair Work Act 2009, and whether Transdev WA Pty Ltd had acted in accordance with procedural fairness when terminating Mr Elliott's employment. Another issue was whether Mr Elliott was entitled to compensation and if so, how much compensation should be awarded.

The Court found that the termination of Mr Elliott's employment was harsh, unjust and unreasonable. The Court was of the view that Transdev WA Pty Ltd failed to follow its own policies and procedures when terminating Mr Elliott's employment. The Court held that Transdev WA Pty Ltd had not acted in accordance with procedural fairness as it had not provided Mr Elliott with an opportunity to respond to the allegations against him. The Court also found that Mr Elliott was entitled to compensation and ordered Transdev WA Pty Ltd to pay him compensation of $12,000. Transdev WA Pty Ltd was also ordered to pay Mr Elliott's legal costs.

Orders