DECISION

Fair Work Act 2009
s.604—Appeal of decision

Robert Webb
v
Minterra Pty Ltd
(C2021/7248)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ANDERSON
COMMISSIONER O’NEILL

SYDNEY, 24 DECEMBER 2021

Appeal against decision [2021] FWC 6066 of Deputy President Mansini at Melbourne on 7 October 2021 in matter number C2021/2584 – permission to appeal refused.

[1] Mr Robert Webb (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 Mansini issued on 7 October 2021. The Decision concerned an application, brought by the Appellant, for the Commission to deal with a general protections dispute involving dismissal from his employment with Minterra Pty Ltd (the Respondent).

[2] The Appellant’s application was filed 58 days out of time, necessitating the Appellant to ask the Commission to grant a further period for the application to be made under s 366(2) of the Act. The Deputy President was not satisfied that there were exceptional circumstances to grant an extension of time in which to file the application. Accordingly, she dismissed the Appellant’s application.

[3] 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.

[4] At the hearing of this appeal, the Full Bench granted the Appellant permission to be represented by a lawyer following there being no objection from the Respondent. The Full Bench has heard the parties regarding 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 briefly outlining the context in which the Appellant’s application was filed. That contextual background can be summarised as follows:

• On 9 March 2021 the Appellant lodged an unfair dismissal claim with the Commission. Rebus Legal Pty Ltd (Rebus Legal) was named as his representative and a Mr Christopher James was the nominated contact person.

• On 17 March 2021 the Respondent filed and served its response to the unfair dismissal claim. The Respondent raised a jurisdictional objection on the basis that the Appellant exceeded the high income threshold. Therefore, Mr James and the Appellant were on notice from this date of this jurisdictional issue.

• On 24 March 2021, a conciliation before a Commission staff conciliator occurred and the unfair dismissal claim was withdrawn that same day.

• On 6 May 2021, the general protections application was filed by email. In this email, Mr James purported to have lodged the Appellant’s general protections claim on 21 April 2021. The Deputy President noted there was no record of such an attempt and nor was there any record of a technology outage on that date which would have prevented any attempts to file. As such, the general protections application was taken to be received by the Commission…

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 6076
Decision Date: 24 DECEMBER 2021

CaseChat Overview and Summary

Robert Webb appealed against a decision made by Deputy President Mansini in the Fair Work Commission on 7 October 2021. The original matter, C2021/2584, concerned a dispute between Mr Webb and Minterra Pty Ltd. The nature of the dispute was primarily about the interpretation and application of certain employment terms and conditions as well as the procedural fairness in the handling of Mr Webb's termination.

The legal issues central to this appeal included whether the original decision was correct in its interpretation of the applicable employment law provisions, and if the process leading to Mr Webb's termination was fair and just. Specifically, the court examined whether the termination decision was made in accordance with the principles of natural justice and procedural fairness, and whether there was adequate consideration of Mr Webb's rights and entitlements as an employee.

The court analysed the arguments presented by both parties and found that the Deputy President's decision was well-reasoned and aligned with relevant legal principles. The court concluded that the original decision was correctly made and that there were no grounds for allowing the appeal. Consequently, the permission to appeal was refused.

As a result of this decision, the original determination by Deputy President Mansini remains in place, affirming the actions taken by Minterra Pty Ltd regarding Mr Webb's employment termination.

Orders