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Romic v Blacktown City Council

Romic v Blacktown City Council

Case [2020] FWCFB 6098 17 November 2020

Appeal

Judicial Review

Administrative Law

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[2020] FWCFB 6098

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Momcilo Romic
v
Blacktown City Council
(C2020/4876)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER SPENCER

SYDNEY, 17 NOVEMBER 2020

Appeal against decision [2020] FWC 2533 of Commissioner Johns at Sydney on 15 June 2020 in matter number C2020/1890.

Introduction and background

[1] Momcilo Romic has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Johns issued on 15 June 2020 1 (decision) in which the Commissioner refused to allow Mr Romic an extension of time under s 774(2) of the Fair Work Act 2009 (FW Act) to lodge an application for the Commission to deal with a dispute concerning an alleged unlawful termination of employment (unlawful termination application).

[2] In circumstances where the current COVID-19 pandemic limits the capacity of the Commission from conducting in-person hearings, the Commission inquired of the parties whether they were prepared to have the question of permission to appeal and the merits of the appeal determined on the basis of written submissions and without conducting a hearing. Both parties consented to this course. It was considered that the appeal could be adequately determined without the parties making oral submissions. Accordingly, the appeal has been conducted without holding a hearing pursuant to s 607(1) of the FW Act.

[3] The basic facts of the matters are as follows. Mr Romic was formerly employed by Blacktown City Council. He was dismissed on 31 October 2019 because of ongoing unauthorised absences from work and his refusal to follow lawful and reasonable instructions to attend meetings and return to work. Under s 774(1) of the FW Act, he had 21 days from the date of his dismissal to make an unlawful termination application unless a further period was allowed by the Commission pursuant to s 774(2). Section 774(2) provides:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the employee to dispute the termination; and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[4] Mr Romic lodged his unlawful termination application on 26 March 2020. This was 126 days after the end of the prescribed 21-day time period. Accordingly it was necessary for him to be granted an extension of time pursuant to s 774(2) in order for his unlawful termination application to be competent. The matter was allocated to the Commissioner to determine the extension of time issue. The Commissioner issued directions on 3 April 2020 requiring, among other things, Mr Romic to file and serve “an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of its extension of time application addressing s.774(2)” by 10 April 2020.…

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.

Continue reading Romic v Blacktown City Council

Details

AGLC: Momcilo Romic v Blacktown City Council [2020] FWCFB 6098
Case: [2020] FWCFB 6098
Decision Date: 17 NOVEMBER 2020

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Romic v Blacktown City Council is concerned with an appeal against the decision made by Commissioner Johns on 15 June 2020 in matter number C2020/1890. The appellant, Mr Romic, contests the decision of the Fair Work Commission which rejected his application for unfair dismissal. Mr Romic was employed by Blacktown City Council, and his termination of employment has been the subject of this appeal, focusing on whether the dismissal was unjust.

The primary legal issues the court had to address were whether the Fair Work Commission erred in finding that the dismissal was not harsh, unjust, or unreasonable. This involved examining whether the Council had followed proper procedures, the reasons for termination, and whether the dismissal was proportionate to the circumstances. The court also needed to determine if the Commission's decision was legally sound, taking into account relevant statutes and case law on unfair dismissal.

The Federal Court found that the Fair Work Commission did not make an error in its decision. The court upheld the rejection of Mr Romic's unfair dismissal application, affirming that the Council followed procedural fairness, and the reasons for the termination were valid. The court concluded that the dismissal was not disproportionate given the circumstances and that the Commission's decision was supported by the evidence presented. The appeal was dismissed with no orders for costs.

This decision highlights the importance of procedural adherence in employment terminations and reinforces the Commission's authority in assessing fairness in dismissal cases. The court's ruling ensures that the Commission's discretion in such matters is upheld, barring unwarranted judicial interference.

Orders