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Ozsoy v Monstamac Industries Pty Ltd

Ozsoy v Monstamac Industries Pty Ltd

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[2014] FWCFB 2149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

C Ozsoy
v
Monstamac Industries Pty Ltd
(C2014/2942)

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER BISSETT

MELBOURNE, 1 APRIL 2014

Appeal against decision [[2014] FWC 479] and order [PR546978] of Deputy President Gostencnik at Melbourne on 20 January 2014 in matter number U2013/10211—Permission to appeal is refused—No public interest served by granting permission to appeal—Appeal is dismissed.

[1] This is an appeal by Mr C H Ozsoy (Appellant) against a decision of Deputy President Gostencnik¹ in relation to an application² made under s.394 of the Fair Work Act 2009 (the Act).

[2] The Appellant’s employment with Monstamac Industries Pty Ltd (Respondent) was terminated on 13 May 2013, on the basis of conduct said to constitute serious misconduct. The Appellant filed an application for an unfair dismissal remedy with the Fair Work Commission (the Commission) on 4 June 2013. At the time of the Appellant’s termination, applications under s.394 of the Act were required to be filed within 21 days of the date the dismissal took effect or within such further period as the Commission may allow. Accordingly, the Appellant’s unfair dismissal remedy application was filed one day out of time.

[3] In his decision, Deputy President Gostencnik declined to exercise his discretion to extend the time for filing the application and it is against that decision that the Appellant has filed this appeal.

Background

[4] The Appellant became aware of the termination of his employment by letter dated 13 May 2013. The letter advised that, following advice from the office of the Fair Work Ombudsman (FWO), the Respondent considered the Appellant’s conduct to constitute serious misconduct.

[5] The Appellant accessed the website of the FWOto make enquiries about his legal entitlements, spoke to a person from the office of the FWO and lodged a complaint with theFWO on 23 May 2013. He did not otherwise seek advice about his rights or entitlements.

[6] The Appellant received a written response to the complaint from the FWO on Friday, 31 May 2013. The FWO advised the Appellant that the complaint was out of its jurisdiction and referred him to the Commission.³

[7] The Appellant took no further steps until Monday, 3 June 2013, at which time he went onto the Commission’s website, obtained the proper information in regards to lodging a complaint, downloaded and completed the form.⁴ Monday, 3 June 2013 was not a public holiday in Victoria. 5

[8] The Appellant lodged the application and paid the lodgement fee by email at 5:01 p.m. on Tuesday, 4 June 2013, one day beyond the time period within s.394(2)(a) of the Act.⁶

The relevant statutory provision

[9] When considering whether to exercise his discretion to extend the time for filing the s.394 application, Deputy President Gostencnik was required to take into account the factors contained in s.394 of the Act. That section is in the following terms:

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: [2014] FWCFB 2149
Decision Date: 1 APRIL 2014

CaseChat Overview and Summary

Ozsoy v Monstamac Industries Pty Ltd involved the appellant, Ozsoy, contesting a decision rendered by Deputy President Gostencnik at the Fair Work Commission on 20 January 2014. The dispute originated from a matter concerning unfair dismissal, where Ozsoy sought to appeal the decision and order made by the Commission. The case was reviewed at the Federal Circuit Court of Australia, which had the jurisdiction to hear appeals from decisions made by the Fair Work Commission. Ozsoy aimed to challenge the original decision and sought to appeal on the grounds that the decision was erroneous and that there was a public interest in allowing the appeal.

The central legal issues before the court involved whether the appeal against the decision of Deputy President Gostencnik should be permitted, and if so, whether the appeal was successful. The court needed to determine if there were grounds for the appeal, including whether there was an error in law, a significant procedural irregularity, or if the decision was otherwise unjust. Additionally, the court had to assess whether there was a public interest in allowing the appeal to proceed.

In evaluating the appeal, the court examined the reasoning and evidence presented by both parties. The court found that there were no significant errors in law or procedure in the original decision. It was determined that the decision was well-reasoned and based on the evidence presented at the original hearing. Furthermore, the court concluded that there was no public interest that would be served by granting permission to appeal. As a result, the appeal was dismissed, and the decision of Deputy President Gostencnik was upheld.

Orders