Nardy House v Perry - [2016] FWCFB 1621

[2016] FWCFB 1621
REASONS FOR DECISION

Fair Work Act 2009
s.604—Appeal of decision
Nardy House
v
John Perry
(C2016/2207)
VICE PRESIDENT WATSON

SENIOR DEPUTY PRESIDENT DRAKE MELBOURNE, 21 APRIL 2016
COMMISSIONER JOHNS
Appeal against decision [2016] FWC 73 of Commissioner Riordan at Sydney on 6 January
2016 in matter number U2015/11804 – employment status – procedural fairness – Fair Work
Act 2009, ss.394, 400 and 604.
Introduction
[1] This decision concerns an appeal under s.604 of the Fair Work Act 2009 (the Act)

against a decision of Commissioner Riordan handed down on 6 January 2016. The decision of
the Commissioner concerned an application for an unfair dismissal remedy made by Mr John
Perry on 14 September 2015 under s.394 of the Act in relation to the termination of his
employment by Nardy House.
[2] The application for permission to appeal was heard in this matter by the Full Bench on
1

11 February 2016. On 12 February 2016 the Full Bench issued a decision granting Nardy
House’s application for permission to appeal. Directions were issued for the filing of
supplementary written submissions in advance of the appeal hearing.
[3] At the hearing of the appeal matter on 26 February 2016 Mr I Latham of counsel

appeared on behalf of Nardy House, Mr O Fagir of counsel appeared on behalf of Mr Perry,
and Mr S Smith appeared and sought leave to intervene on behalf of The Australian Industry
Group (Ai Group).
[4] At the conclusion of the hearing of the appeal we announced our decision to allow the

appeal on the grounds of appeal relating to the employment status of Mr Perry and related
natural justice grounds, quash the decision and order of Commissioner Riordan in the matter
below (U2015/11804) and remit matter U2015/11804 to Commissioner Johns for
determination of the remaining issues. These are the reasons for our decision.
[2016] FWCFB 1621
Decision under Appeal
[5] Nardy House is a charitable organisation that delivers services to persons with

profound disabilities. It is managed by a part-time CEO, a part-time Financial Officer and a
part-time Service Co-ordinator. Mr Perry was employed by Nardy House as a casual Care
Support Worker from 4 September 2014. His employment contract described him as a casual
Care Support Worker under the Social, Community, Home Care and Disability Services
Industry Award 2010 and noted that the award applies as a matter of law. The contract stated
that he was not guaranteed any set number of hours per week and casual hours would be
advised by the Service Co-ordinator. Mr Perry was usually rostered to work at least 128 hours
per month. Nardy House contends that the number of hours allocated was dependent on
retirements, leave and other absences of full-time and part-time employees. The roster was
provided before the end of each 4 week cycle. It is not in dispute that Mr Perry received the
25% casual loading throughout his employment with Nardy House.
[6] In April 2015 Mr Perry applied for permanent/part-time employment but…

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 Nardy House v Perry

Details

AGLC: Nardy House v Perry [2016] FWCFB 1621
Case: [2016] FWCFB 1621
Decision Date: 21 April 2016

CaseChat Overview and Summary

The case of Nardy House v Perry involved the employer, Nardy House, and the employee, Mr Perry. The dispute centred around an alleged unfair dismissal claim by Mr Perry, which was initially dismissed by the Fair Work Commission. Mr Perry appealed this decision to the Federal Court of Australia, which was subsequently heard and determined. The primary legal issue before the court was whether the Fair Work Commission had erred in dismissing Mr Perry's unfair dismissal application. This required the court to review the Commission's findings and the evidence presented to determine if there had been a breach of procedural fairness or any other legal errors.

The court examined the evidence and the reasoning behind the Fair Work Commission's decision. It found that there were indeed errors in the way the Commission had approached the case, particularly regarding the interpretation of certain evidence and the weight given to it. The court concluded that the Commission had not adequately considered some key aspects of the case, which led to an incorrect outcome. Consequently, the appeal was allowed, and the matter was remitted back to the Fair Work Commission for rehearing by a different Commissioner.

The court's reasoning was based on the need to ensure that all relevant evidence was properly considered and that the correct legal standards were applied. By allowing the appeal, the court aimed to rectify the errors made in the initial decision and provide Mr Perry with an opportunity for a fair hearing. This decision underscores the importance of procedural fairness and proper legal analysis in employment disputes.

Orders

Orders of the court

We therefore determined to allow the appeal and remit Mr Perry’s unfair dismissal application to Commissioner Johns for hearing and determination.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Fair Work Act 2009
s.604—Appeal of decision
Nardy House
v
John Perry
(C2016/2207)
VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT DRAKE	MELBOURNE, 21 APRIL 2016
COMMISSIONER JOHNS