| [2025] FWCFB 92 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Pepperleaf.Com.Au Pty Ltd
v
Simon Kahil & John Cincotta
(C2025/3080)
| DEPUTY PRESIDENT MILLHOUSE COMMISSIONER ALLISON | MELBOURNE, 9 MAY 2025 |
Appeal against decision of Commissioner Yilmaz at Melbourne on 28 March 2025 on transcript in matter numbers U2025/795 and U2025/797 – permission to appeal refused.
Pepperleaf.com.au Pty Ltd has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision of Commissioner Yilmaz dated 28 March 2025, for which permission to appeal is required. The Commissioner’s decision was made in the context of dealing with the unfair dismissal applications made by each of the respondents to the appeal, Messrs Simon Kahil and John Cincotta, against the appellant.
In the decision, the Commissioner considered that the respondents’ unfair dismissal applications were filed prematurely and, in the circumstances of the matter, was satisfied that this constituted an irregularity that the Commission may waive under s 586(b) of the Act. Accordingly, the Commissioner exercised her discretion to waive the irregularity in the form or manner in which each of the applications was made.
The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
Relevant procedural history
The matter concerns applications for an unfair dismissal remedy made by each of the respondents to the appeal against the appellant pursuant to s 394 of the Act. The applications were filed with the Commission on 24 January 2025. On 29 January 2025, the appellant filed its Form F3 response to the applications. The appellant raised a jurisdictional objection to each application on the basis that the respondents had not been dismissed by it.
Following the allocation of the matters to the Commissioner and there being no objection to the applications being heard together, the Commissioner listed the applications for a jurisdictional hearing on 28 March 2025 to determine the date of dismissal. The parties filed written material in accordance with the directions of the Commission. In summary:
(a)the respondents contended that they were founding shareholders of the appellant, having commenced the business in 2014;
(b)the respondents said that they commenced employment with the appellant in 2016 and that they were also directors of the company;
(c)the respondents contended that their employment was summarily terminated on 6 January 2025 as an outcome of a board meeting held on that date. Evidence was filed by one of the respondents who was present at the board meeting;
(d)the appellant’s position was that the respondents were not dismissed from their employment on 6 January 2025 as investigations into their conduct were ongoing after that date. Rather, at the 6 January 2025 board meeting, resolutions were passed that allowed for the potential termination of the respondents’ employment due to serious misconduct; and
(e)the appellant contended that on 30 January 2025, resolutions were passed for the termination of the respondents’ employment, and they were notified of their dismissal on that date.
At…
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- [2025] FWCFB 92
- Decision Date
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