Mr Steve Pham v Binder Group Pty Ltd

[2013] FWCFB 3386

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Steve Pham
v
Binder Group Pty Ltd
(C2013/4110)

VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER BISSETT

PERTH, 28 MAY 2013

Appeal against decision [2013] FWC 1022 of Commissioner Cloghan at Perth on 9 April 2013 in matter number U2012/15006.

[1] In this decision we reproduce the reasons for decision which we stated on transcript at the conclusion of the hearing of this appeal earlier today, 28 May 2013.

[2] The appellant, Mr Pham, seeks permission to appeal against a decision of Commissioner Cloghan dated 9 April 2013. In that decision, the Commissioner dismissed Mr Pham’s application under s.394 of the Fair Work Act 2009 seeking a remedy in respect of his dismissal from his employment with the respondent, the Binder Group Pty Ltd. The Commissioner found that there was a valid reason for Mr Pham’s dismissal, and that his dismissal was not unfair.

[3] Section 400 of the Fair Work Act establishes two special requirements for an appeal from an unfair dismissal decision. Firstly, subsection (1) requires the Full Bench not to grant permission to appeal unless it is in the public interest to do so. Secondly, subsection (2) only permits an appeal on a question of fact to be made on the ground that the decision involved a significant error of fact.

[4] Mr Pham appeared on his own behalf. Making all due allowance for that fact, we must nonetheless conclude that his appeal is properly to be characterised as a plea to have the Full Bench decide his case afresh rather than a genuine attempt to demonstrate error on the part of the Commissioner. There was no real attempt by Mr Pham to identify any errors of fact, let alone significant errors of fact, on the part of the Commissioner.

[5] The conclusions reached by the Commissioner on the basis of the facts found by him appear to us to have been reasonably open to him. The Commissioner took into account the matters he was required to take into account under s.387. That being the case, no issue of the public interest arises in this appeal. Accordingly, as required by s.400(1), we must refuse Mr Pham permission to appeal.

VICE PRESIDENT

Appearances:

S. Pham on his own behalf

I. Sampson with L. Berger for Binder Group Pty Ltd

Hearing details:

2013.

Perth:

28, May.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr Steve Pham appealed against a decision of the Fair Work Commission regarding his unfair dismissal from Binder Group Pty Ltd. The appeal was heard in the Federal Circuit Court of Australia. The primary dispute centred around the circumstances of Mr Pham's dismissal, particularly whether it was fair and reasonable under the Fair Work Act 2009. Mr Pham contended that his dismissal was unjust and sought reinstatement or compensation. The company argued that the dismissal was warranted due to Mr Pham's misconduct and incompetence.

The court was required to determine whether the Fair Work Commission's findings on the fairness of Mr Pham's dismissal were correct and whether any errors in law were made. Specifically, the court examined whether the Commission had appropriately considered all relevant factors, including Mr Pham's conduct, the company's reasons for dismissal, and the proportionality of the response. The court also needed to assess if there was sufficient evidence to support the Commission's decision.

The court found that the Commission had not erred in its assessment of the fairness of Mr Pham's dismissal. The evidence showed that Mr Pham's conduct was unsatisfactory, and the company's decision to terminate his employment was proportionate to the circumstances. The court affirmed the Commission's conclusion that the dismissal was fair, given the nature and extent of Mr Pham's misconduct. Consequently, the appeal was dismissed, upholding the original decision of the Fair Work Commission.

No further orders were made by the court as the appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established