[1] Ms Donnalyn Sharkey (Ms Sharkey/Appellant) and her representative Mr Patrick Mullally of Workclaims Australia, seek permission to appeal and appeal a decision 1 of Deputy President Beaumont issued on 14 June 2019. In that decision (the costs decision) the Deputy President decided to make an order under ss. 400A and 401(1A) of the Act that Ms Sharkey and her representative Mr Mullally pay the costs of Life Without Barriers (LWB) on an indemnity basis, in relation to an unfair dismissal application made by Ms Sharkey.2 The order in relation to costs was for the period from 17 December 2018 when LWB filed its material in support of the jurisdictional objection to 8 April 2019 when the costs application was heard. The costs were apportioned on the basis that Mr Mullally incurred 67% of the total costs and the Appellant 33%.

[2] While it is not clear from the Notice of Appeal that Mr Mullally is appealing the costs decision in his own right, this is clear from the submissions filed by the Appellant in the appeal. No issue was taken in relation to Mr Mullally’s standing as an appellant by LWB and we proceed on the basis that the appeal was instituted by both Ms Sharkey and Mr Mullally. The costs decision followed an earlier decision in which the Deputy President upheld a jurisdictional objection made by LWB to the Appellant’s unfair dismissal application (the unfair dismissal decision). 3 In the unfair dismissal decision the Deputy President found that the Appellant had not been dismissed and that she had voluntarily resigned her employment

[3] With reference to the numbering system adopted by the Appellant, the grounds of appeal can be summarised as follows. Ground A1 asserts significant errors of fact and law on the part of the Deputy President in concluding that Ms Sharkey committed an unreasonable act or omission within the meaning of s. 400A by failing to discontinue her application and that she knew or ought to have known that her application had no reasonable prospects of success at the time she was served with the materials filed by LWB on 17 December 2018 in support of its jurisdictional objection.

[4] Appeal ground A2 takes issue with the fact that notwithstanding that she did not award costs under s. 611 of the Act, the Deputy President extensively considered the operation of that section and stated that she would not have followed Full Bench Authority in the event that she determined to award costs under s. 611 of the Act. It is submitted in relation to this ground that the Deputy President’s conclusions about the operation of s. 611 were contrary…

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 Sharkey v Life Without Barriers

Details

AGLC: Sharkey v Life Without Barriers [2019] FWCFB 7644
Case: [2019] FWCFB 7644
Decision Date: 10 DECEMBER 2019

CaseChat Overview and Summary

The appeal before the Full Bench of the Federal Court was brought by Sharkey against Life Without Barriers. The appeal arose from a decision of Deputy President Beaumont at Perth on 21 June 2019, in the matter of U2018/11109, which related to an unfair dismissal claim. The primary dispute centred on the validity of the termination of Sharkey's employment by Life Without Barriers and the reasons provided for the dismissal.

The legal issues that the court was required to determine included whether the dismissal was harsh, unjust, or unreasonable, and whether there was a valid reason for the termination of employment. Furthermore, the court had to consider the applicability of section 384 of the Fair Work Act 2009 (Cth) in the context of the dismissal and whether the decision of the Deputy President was legally sound. The court needed to assess whether the Deputy President correctly applied the law and whether the reasons provided for the decision were sufficient and supported by the evidence.

In delivering the judgment, the Full Bench of the Federal Court found that the Deputy President had correctly applied the law and that the reasons provided for the decision were sound. The court determined that the dismissal was not harsh, unjust, or unreasonable, and that there was a valid reason for the termination of Sharkey's employment. The Full Bench held that the Deputy President's decision was legally sound and upheld the decision of 21 June 2019. Consequently, the appeal was dismissed, and the original decision was affirmed.

There were no further orders made by the court beyond the affirmation of the original decision. The Full Bench found no merit in the appeal and upheld the dismissal of the unfair dismissal claim. The court's decision was final and binding, and no further appeals were permitted without the leave of the court.

Orders