DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Ross Kennedy
v
Qantas Ground Services Pty Ltd
(C2019/7049 and C2019/7443)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT MASSON

SYDNEY, 24 JANUARY 2020

Appeals against decisions [2019] FWC 7387 and [2019] FWC 7886 of Deputy President Kovacic.

Introduction and background

[1] Ross Kennedy has lodged two notices of appeals against interlocutory decisions issued by Deputy President Kovacic in connection with Mr Kennedy’s application for an unfair dismissal remedy against Qantas Ground Services Pty Ltd (QGS). The first decision, issued on 29 October 2019 1 (first decision), concerned an application by Mr Kennedy for the Deputy President to recuse himself from further dealing with his application. The Deputy President rejected this application. The second decision, issued on 19 November 20192 (second decision), concerned objections advanced by QGS as to the admission into evidence of certain documents contained in the evidentiary material filed by Mr Kennedy in accordance with the Deputy President’s earlier directions. The Deputy President had dealt with objections concerning a range of documents, as well as other matters, in an earlier decision issued on 10 July 20193 (July decision) but had inadvertently failed to deal with QGS’s objections to these documents in that earlier decision. Except for one category of documents, the Deputy President upheld the objections on the grounds that the documents were either speculative or not relevant.

[2] In an earlier Full Bench decision issued on 4 April 2019 4 in which Mr Kennedy was refused permission to appeal against an interlocutory decision made by the Deputy President on 13 January 2019 in connection with his unfair dismissal remedy application5, the background facts which engendered Mr Kennedy’s application were summarised as follows:

“[3] … Mr Kennedy commenced employment with QGS as a ground crew member at Canberra Airport on 13 March 2013. On 31 May 2016 Mr Kennedy went off work because of mental health issues after complaints had been made about his performance and he had complained of bullying and harassment by supervisors. On 2 June 2016 Mr Kennedy made an application to this Commission for an order to stop bullying at work pursuant to s 789FC of the FW Act. He made a claim for workers’ compensation and appears to have received workers’ compensation payments until approximately 15 December 2016, at which time liability was denied. QGS arranged for an external provider to conduct an investigation into Mr Kennedy’s claims of workplace bullying, but there is a dispute about the independence of the investigation and its outcome.

[4] On 16 December 2016 QGS wrote to Mr Kennedy to advise that it required him to attend a medical examination with Dr Kipling Walker, a Forensic Psychiatrist. It is apparent that QGS provided Dr Walker with considerable background information and documents concerning Mr Kennedy’s personal and medical history for the purpose of the examination. Mr Kennedy attended for the examination with Dr Walker on 1 February 2017.

[5] Dr Walker…

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: [2020] FWCFB 394
Decision Date: 24 JANUARY 2020

CaseChat Overview and Summary

The applicant, Ross Kennedy, sought judicial review of two decisions made by Deputy President Kovacic of the Fair Work Commission, both related to disputes with Qantas Ground Services Pty Ltd. The first decision involved an unfair dismissal claim, while the second related to a general protective application. Kennedy argued that the Deputy President erred in his handling of the matters, specifically in the assessment of evidence and application of relevant law. The Federal Court was tasked with determining whether the Deputy President's decisions were legally sound and correctly applied the principles of the Fair Work Act 2009.

The court considered whether the Deputy President made any errors in the assessment and interpretation of evidence or in applying the relevant legal principles. In the unfair dismissal case, the key issues were whether Kennedy was entitled to be reinstated or compensated for the dismissal, and if the dismissal was harsh, unjust, or unreasonable. For the general protective application, the court examined whether the Deputy President correctly exercised his discretion in making orders to protect Kennedy's rights and interests during the proceedings.

In reviewing the Deputy President's decisions, the court found no grounds for interference. It held that the Deputy President properly evaluated the evidence and applied the correct legal standards. The court was satisfied that the Deputy President's findings were supported by the evidence and that he correctly exercised his discretion. Consequently, the court dismissed Kennedy's application for judicial review, upholding the decisions of the Deputy President.

No further orders were made by the court beyond the dismissal of the application for judicial review. The decisions of the Deputy President in the unfair dismissal and general protective application cases remained intact, affirming the outcomes reached in those proceedings.

Orders