Qantas Airways Limited v McRae - [2017] FWCFB 4033

[2017] FWCFB 4033

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Qantas Airways Limited

Mr Jarrod McRae

(C2017/2707)

JUSTICE ROSS, PRESIDENT

DEPUTY PRESIDENT COLMAN
COMMISSIONER CIRKOVIC

MELBOURNE, 2 AUGUST 2017

Appeal from decision of Commissioner Riordan on 13 April 2017 in matter number U2016/13792 – dismissal of employee – review of dismissal pursuant to company policy – date of dismissal – policy did not suspend dismissal – significant error of fact - appeal upheld

Qantas Airways Limited has lodged an appeal, for which permission is required, against a decision issued by Commissioner Riordan on 13 April 2017 (Decision). The Decision concerned an application by Mr McRae to extend the 21 day period within which to file his unfair dismissal application.

At issue in this matter was a Qantas policy that allows employees to challenge dismissal and other disciplinary action. The Commissioner found that Mr McRae’s employment did not terminate until Qantas notified him that his internal appeal had been unsuccessful. Based on this later date, the Commissioner found that Mr McRae’s unfair dismissal application was filed within 21 days of dismissal, and that no extension of time was necessary.

The application for permission to appeal was listed for hearing before us on 11 July 2017. On 10 July 2017, Mr McRae’s representative advised the Commission that Mr McRae did not oppose Qantas’ application for permission to appeal, and that he would not be attended the hearing.

Later that day, Deputy President Colman conducted a telephone mention. The parties advised that there had been settlement discussions concerning Mr McRae’s unfair dismissal application, and an agreement had been reached, subject to certain matters. The unfair dismissal application had not been discontinued. Qantas wished to press its appeal because of the broader implications of the Decision for it and for other employers. The parties advised that, in the event that the Full Bench granted permission to appeal, they would be content to have the substantive appeal dealt with on the papers.

The Full Bench proceeded to hear Qantas’ application for permission to appeal on 11 July 2017. Having considered the oral argument, the Notice of Appeal and the written submissions filed by Qantas, as well as the position of the respondent, permission to appeal was granted.

The Full Bench issued directions later on 11 July 2017, confirming that the appeal would be dealt with on the papers, and directing the parties to file written submissions in respect of the appeal. Qantas filed written submissions but Mr McRae did not.

This decision deals with our reasons for granting permission to appeal on 11 July 2017 and our analysis and disposition of the substantive appeal.

Permission to appeal

An appeal under s604 of the Fair Work Act 2009 (Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[1] There is no right to appeal and an appeal may only be…

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: [2017] FWCFB 4033
Decision Date: 2 AUGUST 2017

CaseChat Overview and Summary

The case of Qantas Airways Limited v McRae was heard in the Fair Work Commission, where the employee, McRae, appealed the decision made by Commissioner Riordan on 13 April 2017 in matter number U2016/13792. The primary issue was the dismissal of McRae from his employment with Qantas, with the appeal focusing on the review of the dismissal under the company's policy and the date of dismissal. The employee argued that the date of dismissal was incorrectly stated and that there was a significant error of fact in the proceedings, leading to an unfair outcome.

The legal issues central to this appeal were whether the date of dismissal was accurately determined and if the company policy was correctly applied in the dismissal process. Specifically, the court had to determine whether the policy allowed for the dismissal to proceed without suspension and if the dismissal was conducted in accordance with the company's policies and procedures. The court also needed to examine if there was a significant error of fact that could have influenced the outcome of the dismissal.

The court found that there was indeed a significant error of fact in the proceedings which affected the fairness of the dismissal process. The date of dismissal was incorrectly stated, and the company policy was not correctly applied. The court determined that these errors warranted a review of the decision. Consequently, the appeal was upheld, and the decision made by Commissioner Riordan was set aside. This means that the dismissal of McRae may be reconsidered in light of the errors identified by the court.

Orders