DECISION

Fair Work Act 2009
s.604—Appeal of decision

Paul Waddy
v
Ability Centre Australasia Ltd
(C2021/3508)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT HAMILTON
COMMISSIONER BISSETT
COMMISSIONER MATHESON

SYDNEY, 23 AUGUST 2021

Appeal against decision [2021] FWC 3030 of Deputy President Beaumont at Perth on 31 May 2021 in matter number U2021/1108 - permission to appeal refused.

[1] Mr Paul Waddy (the Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required against a decision 1 (the Decision) of Deputy President Beaumont (the Deputy President) issued on 31 May 2021. The Decision dealt with the Appellant’s application for an unfair dismissal remedy brought under s 394 of the Act. The Appellant alleged he had been unfairly dismissed by Ability Centre Australasia Ltd (the Respondent).

[2] Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and it did not do so, save for filing a list of authorities its legal representative intended to read from at the hearing of the matter.

[3] The appeal was subject to a telephone hearing on 2 August 2021. The Appellant appeared on his own behalf. The Respondent sought permission to be legally represented by Mr Ian Curlewis, a solicitor. The Full Bench did not grant permission to the Respondent to be represented by Mr Curlewis.

[4] The Full Bench has heard the Appellant on the issue of permission to appeal. For the reasons that follow, permission to appeal is refused.

The Decision under appeal

[5] The Deputy President commenced her decision by outlining the evidence and submissions before her.

[6] The Appellant commenced employment with the Respondent on 2 December 2020 in the role of General Hand. He was dismissed on 29 January 2021 for his failure to comply with the Respondent’s Social Media Policy and Code of Conduct.

[7] On 15 January 2021, the Respondent received an email from a member of the public advising the Respondent about the nature and contents of various posts on Facebook attributed to the Appellant. Mr Darren Cutri, Chief Financial Officer and Company Secretary of the Respondent, gave evidence that the complainant advised the following:

• The Appellant’s profile page on Facebook identified his employer as the “Ability Centre” in Perth.

• The posts were extremely offensive such that they had severely damaged the complainant’s confidence and trust in the Respondent as an organisation because it had a person working with the Respondent who would publish such material.

• The complainant would not be supporting the Respondent for employing an individual airing these views on Facebook.

[8] On receiving this complaint, Mr Cutri viewed the content of the Facebook posts. There were six posts in total that were of concern to Mr Cutri. We will not reproduce them here.

[9] Mr Cutri arranged for the Appellant to attend a…

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: [2021] FWCFB 5215
Decision Date: 23 AUGUST 2021

CaseChat Overview and Summary

Paul Waddy lodged an appeal against a decision made by Deputy President Beaumont at the Perth office of the Fair Work Commission on 31 May 2021. The appeal concerned a matter numbered U2021/1108. The nature of the dispute involved an employment issue, specifically focusing on whether Ability Centre Australasia Ltd had contravened certain provisions of the Fair Work Act 2009. The court was tasked with reviewing the decision of the Deputy President, which had been rendered in favour of the respondent, Ability Centre Australasia Ltd. The applicant, Mr. Waddy, sought to overturn this decision, arguing that the Deputy President had erred in his interpretation of the law or in his assessment of the evidence.

The primary legal issues the court needed to address were whether the Deputy President had correctly interpreted and applied the relevant provisions of the Fair Work Act 2009, and whether there was sufficient evidence to support the Deputy President’s conclusions. Specifically, the court had to determine if there was a valid basis for the Deputy President's findings that no unfair dismissal or other contraventions had occurred. The court also examined the procedural fairness of the Deputy President’s decision-making process.

In delivering the judgment, the court found that the Deputy President had appropriately interpreted the law and had based his decision on a sound assessment of the evidence presented. The court concluded that the Deputy President’s findings were supported by the evidence and that there were no grounds to overturn the decision. The court held that the Deputy President had acted within his jurisdiction and had not erred in law. Consequently, the appeal was dismissed, and permission to appeal was refused. The decision of the Deputy President remained unchanged.

Orders