Nick Tsiftelidis v Crown Melbourne Limited - [2016] FWCFB 4675

[2016] FWCFB 4675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Nick Tsiftelidis
v
Crown Melbourne Limited
(C2016/3380)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT HAMILTON
COMMISSIONER CIRKOVIC

BRISBANE, 25 JULY 2016

Appeal against decision [[2016] FWC 1689] and Order PR578345 of Commissioner Cribb at Melbourne on 24 March 2016 in matter number U2015/5662.

[1] Crown Melbourne Limited (Respondent) had employed Mr Nick Tsiftelidis (Appellant) for approximately eight and a half years until 12 May 2015 when it dismissed him on redundancy grounds. In his employment with the Respondent, the Appellant was covered by the Crown Melbourne Enterprise Agreement 2013 (Agreement). On 24 March 2016 Commissioner Cribb issued a decision 1 (Decision) which concluded that the Appellant’s dismissal was a case of genuine redundancy within the meaning of s.389 of the Fair Work Act 2009 (Cth)2 (FW Act) and dismissed the Appellant’s application for a remedy for an unfair dismissal by order (Order).3

[2] The Appellant sought permission to appeal the Commissioner’s Decision and Order. The issue of permission to appeal was heard by a Full Bench of the Commission and on 2 June 2016 that Full Bench issued a decision which granted permission to appeal. 4 With permission to appeal having been granted, the determination of the merits of the appeal is the matter before us.

The Hearing

[3] At the hearing on 12 July 2016, the Appellant was self-represented and did not object 5 to permission to appear being granted to Mr M. Tamvakologos on behalf of the Respondent. In light of this, and having regard to s.596 of the FW Act and the relevant authorities, permission to appear was granted.

[4] While the Appellant did not oppose permission to appear being granted to Mr Tamvakologos, he expressed concern 6 about the presence and involvement of Mr M. Brennan, the solicitor assisting Mr Tamvakologos. The Appellant elaborated to say that he was concerned that Mr Brennan has had a professional relationship and/or done professional work with Commissioner Cirkovic in the past.7 Mr Tamvakologos offered to have Mr Brennan excuse himself from the hearing room to allay any concerns.8 The Appellant did not respond to this offer.

[5] The Appellant was informed that Mr Brennan was Commissioner Cirkovic’s associate for a short period. 9 The Appellant asked us whether we thought that this constituted a conflict of interest.10 We asked the Appellant whether he wished to make an application outlining what he perceived to be a conflict of interest in this case.11 The Appellant did not make such an application before us and instead indicated that he will take the matter to the Federal Court.12 The Appellant said that he was not withdrawing his appeal13 and proceeded to leave the hearing room.

[6] After the Appellant left the hearing room, Mr Tamvakologos confirmed that Commissioner Cirkovic was not involved in this matter while Mr Brennan was her associate. Mr Tamvakologos said that in light of this, and on the basis that Mr Brennan no longer has…

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 4675
Decision Date: 25 JULY 2016

CaseChat Overview and Summary

Nick Tsiftelidis has appealed against the decision of Commissioner Cribb of the Fair Work Commission, handed down on 24 March 2016 in matter number U2015/5662, which dismissed his claim for unfair dismissal against Crown Melbourne Limited. The appeal involves a dispute about whether the dismissal of Tsiftelidis was harsh, unjust or unreasonable under section 383 of the Fair Work Act 2009.

The court was required to determine whether the dismissal was procedurally fair, and whether the reason for the dismissal was valid. The central issues were whether the respondent had valid grounds to dismiss Tsiftelidis and whether the process followed by the respondent was fair and reasonable. This involved assessing the evidence regarding the alleged misconduct, the respondent's decision-making process, and the proportionality of the dismissal in the context of the respondent's disciplinary policy and practices.

The Full Bench of the Fair Work Commission found that the dismissal was procedurally fair and that the reason for dismissal was valid. The Full Bench held that the respondent had followed its own disciplinary policy in dismissing Tsiftelidis, and that the penalty of dismissal was proportionate to the severity of the misconduct. The Full Bench also found that the respondent's decision-making process was fair and reasonable, and that the dismissal was not harsh, unjust or unreasonable.

The appeal was dismissed, and the original decision of Commissioner Cribb was upheld. The Full Bench found that the respondent had valid grounds to dismiss Tsiftelidis and that the process followed was fair and reasonable. The Full Bench also found that the penalty of dismissal was proportionate to the severity of the misconduct. The dismissal was therefore upheld, and the appeal was dismissed.

Orders