DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Rodney Smith
v
Reward Interiors Pty Ltd
(C2021/6810)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT EASTON
COMMISSIONER P RYAN

SYDNEY, 22 OCTOBER 2021

Appeal against interim and/or procedural decision of Commissioner McKenna at Sydney on 6 October 2021 in matter number C2021/6588 – adjournment of first conference/directions – permission to appeal refused

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter earlier today.

[2] On 29 September 2021, Mr Rodney Smith filed an application pursuant to s 526 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute concerning his stand down from his employment with Reward Interiors Pty Ltd, which trades as the Reward Group. The matter was allocated to Commissioner McKenna. The Commissioner initially attempted to list the matter for a first conference/directions hearing on 1 October 2021, but there was an issue about the parties’ mutual availabilities at various times during that day. The Commissioner eventually listed the matter for conference/directions on 6 October 2021 at 2.00pm.

[3] At 10:12am on 6 October 2021 the respondent sent an email to the Commissioner’s chambers asking that the conference be adjourned. The email stated that “the reason for the adjournment is due to a Covid-19 outbreak within one of our construction sites which [Mr Lee – Project Director] must urgently attend to, to ensure the wellbeing of all personnel on site, and to ensure public health is maintained.” The request included three suggested alternative dates within one week of the listing, and was sent to the Commissioner’s associate and to Mr Smith. Within one hour the Commissioner’s chambers sent an email to both parties advising that the Commissioner had rescheduled the conference/directions to 3.00pm on Tuesday, 12 October 2021 – being 6 days later. Mr Smith subsequently asked for written reasons as to why the adjournment was granted, and his request was denied.

[4] On 11 October 2021, being the day before the rescheduled conference/directions hearing, Mr Smith filed an appeal against the Commissioner’s original decision to grant the adjournment. Because of the lodgment of the appeal, the rescheduled conference did not take place.

[5] This decision is concerned with Mr Smith’s appeal, for which permission to appeal is required. Under s 604(2) of the FW Act, we are required to grant permission to appeal if we are satisfied that it is in the public interest to do so. We may otherwise grant permission on discretionary grounds.

[6] Mr Smith’s grounds of appeal are that there was an absence of admissible evidence to support the adjournment application, he was denied procedural fairness and the Commissioner failed to give reasons for her decision.

[7] For the reasons which follow, we are not satisfied that the grant of permission to appeal would be in the public interest, nor do we…

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 6031
Decision Date: 22 OCTOBER 2021

CaseChat Overview and Summary

In the matter of Rodney Smith versus Reward Interiors Pty Ltd, the dispute revolves around an appeal against an interim procedural decision made by Commissioner McKenna on 6 October 2021. The decision pertained to an adjournment of the first conference and the issuing of directions in the case. The proceedings took place at Sydney and were identified by the matter number C2021/6588. The appellant, Rodney Smith, sought to appeal the Commissioner's decision, but his application for permission to appeal was refused.

The central legal issues that the court had to address were whether the Commissioner's decision to adjourn the first conference and issue directions was procedurally fair and whether it was appropriate to grant permission to appeal. The court needed to assess if the decision made by the Commissioner adhered to the principles of procedural fairness and whether the circumstances warranted an appeal. Additionally, the court considered whether the refusal of permission to appeal was justified given the specific circumstances of the case.

The court, in its reasoning, found that the Commissioner's decision was procedurally sound and in line with the applicable legal principles. The court determined that the adjournment of the first conference and the issuing of directions were necessary to ensure the fair administration of justice. The court also concluded that the refusal of permission to appeal was justified as there were no compelling grounds to grant such permission. Consequently, the appeal against the Commissioner's decision was dismissed.

No further orders were made beyond the dismissal of the appeal. The decision underscored the importance of adhering to procedural fairness in court proceedings and the careful consideration required when deciding on the grant of permission to appeal.

Orders