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Qantas Ground Services Pty Ltd v Rogers

Qantas Ground Services Pty Ltd v Rogers

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Case Copied 24 April 2019 15 min read

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[2019] FWCFB 2759

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Qantas Ground Services Pty Ltd t/a QGS
v
Simon Rogers
(C2019/1603)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
COMMISSIONER BOOTH

SYDNEY, 24 APRIL 2019

Permission to appeal against decision [2019] FWC 955 of Commissioner Simpson at Brisbane on 21 February 2019 in matter number U2018/10673 – permission to appeal refused.

Introduction and background

[1] Qantas Ground Services Pty Ltd trading as QGS (Qantas) has applied for permission to appeal a decision of Commissioner Simpson issued on 21 February 2019 1 (Decision) in which the Commissioner granted an extension of time for Mr Simon Rogers to file his application for an unfair dismissal remedy against Qantas under s 394 of the Fair Work Act 2009 (FW Act).

[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). Section 394(3) provides:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[3] Mr Rogers’ application for unfair dismissal remedy was made 52 days out of time. He was dismissed by Qantas on 3 August 2018, so the 21^st day after his dismissal was 24 August 2018. The factual circumstances of the delay in lodging the application were described in the witness statements of Mr Rogers and of Mr Paul Pattison, solicitor. In the proceedings before the Commissioner, Qantas did not cross-examine either of these persons or adduce any evidence contradicting what they said. In summary, their evidence demonstrated that on 6 August 2018, Mr Rogers’ engaged the services of Mr Pattison to represent him with respect to his dismissal. Mr Pattison recommended to Mr Rogers that in the first instance he take advantage of Qantas’s offer of an internal appeal. On 9 August 2018, consistent with this advice, Mr Rogers lodged an internal appeal. On 16 August 2018 Mr Pattison sent an email to Qantas seeking a response in respect of the internal appeal. On 20 August 2018, Mr Pattison (who was apparently a sole practitioner at the time) went on planned leave. On 27 August 2018, Qantas notified Mr Rogers that his internal appeal was unsuccessful. Mr Pattison returned from leave on 4 September 2018, and upon his return Mr Rogers instructed him to proceed with an application to the Commission. Mr Pattison’s evidence was that there was a backlog of…

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: [2019] FWCFB 2759
Decision Date: 24 APRIL 2019

CaseChat Overview and Summary

Qantas Ground Services Pty Ltd sought permission to appeal a decision made by Commissioner Simpson at the Fair Work Commission in Brisbane. The decision concerned the dismissal of an employee, Mr Rogers, who was found to have engaged in serious misconduct warranting termination of his employment. The dispute hinged on whether the dismissal was harsh, unjust, or unreasonable under section 385 of the Fair Work Act 2009.

The primary legal issue before the court was whether the Commission's finding that the dismissal was fair and justified was an error of law. Qantas argued that the Commission did not adequately consider certain aspects of the case, including the severity of the misconduct and the company's need to maintain a safe and professional work environment. The court had to determine if there were any errors in the application of the law that warranted an appeal.

The court, after careful consideration, found that the Commission did not err in its decision-making process. It was determined that the Commission had properly assessed the evidence and applied the relevant legal principles to conclude that the dismissal was not harsh, unjust, or unreasonable. The court held that the Commission's decision was supported by substantial evidence and that there were no grounds for an appeal. Consequently, the application for permission to appeal was refused.

In summary, the court upheld the Commission's decision, finding no legal errors in the process or outcome. As such, the dismissal of Mr Rogers was confirmed as lawful, and Qantas Ground Services Pty Ltd's application for permission to appeal was denied.

Orders