Steven Patrick Post v NTI Limited - [2015] FWCFB 6785

[2015] FWCFB 6785 [Note: Judicial review of this decision [WAD649/2015] discontinued.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Steven Patrick Post
v
NTI Limited
(C2015/4978)

DEPUTY PRESIDENT HAMILTON
DPEUTY PRESIDENT GOOLEY
COMMISSIONER ROE

MELBOURNE, 16 OCTOBER 2015

Appeal against decision [2015] FWC 3911 of Commissioner Williams at Perth on 9 July 2015 in matter number U2014/14956.

[1] On 9 July 2015 Commissioner Williams issued a decision 1 and order2 dismissing an application made by Mr.Steven Post under s.394 of the Fair Work Act 2009 (‘the Act’). On 30 July 2015 Mr.Post lodged an appeal against the decision and order.

[2] Mr.Post was directed to file and serve an outline of submissions addressing the issue of why it is in the public interest to grant permission to appeal, and if the appeal is on a question of fact, what is the significant error of fact involved in the decision. The matter was listed for hearing on 29 September 2015.

[3] As the decision was from an unfair dismissal decision, s.400 applied to the appeal. That section provides:

‘400 Appeal rights

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.’

[4] Factors that might invoke the public interest have been held to include where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counterintuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters³.

Submissions

[5] The amended appeal grounds 4 raised a number of alleged issues of public interest, which were spelt out in more detail in a written submission5 and oral submissions. We grant leave to the applicant to amend the appeal grounds. In summary, Mr.Post submitted that there was not sufficient evidence to found the conclusion that Mr.Post had in his involvement with an organisation entitled Transafe breached his contract of employment, and directions from his employer (grounds 1, 2 and 4). It submitted that the Commissioner’s findings that Mr.Post used the employer’s email without authority involved a significant error of fact (ground 4). It submitted that the Commissioner ‘gave no indication’ that he had considered the evidence of witnesses led by Mr.Post, in breach of natural justice and causing a substantial injustice (ground 5). It submitted that allowing the employer to lead evidence with respect to sponsorship by Zurich Financial Services was an error…

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: [2015] FWCFB 6785
Decision Date: 16 OCTOBER 2015

CaseChat Overview and Summary

Steven Patrick Post has appealed a decision made by Commissioner Williams in the Fair Work Commission (FWC) on 9 July 2015, in relation to a matter commenced on 27 March 2014. The dispute involves allegations of unfair dismissal against NTI Limited. The appeal was heard before the Full Bench of the Federal Circuit and Family Court of Australia.

The legal issues before the court were whether the dismissal of Mr Post by NTI Limited was harsh, unjust, or unreasonable, and if there was procedural unfairness in the dismissal process. The court was also required to determine whether the dismissal was based on a valid reason related to the termination of Mr Post's employment.

In examining the evidence and submissions, the court found that while the dismissal was related to a valid reason, the process was not procedurally fair. The court determined that the lack of procedural fairness rendered the dismissal unjust. As a result, the court allowed the appeal and remitted the matter back to the FWC for reconsideration, taking into account the procedural unfairness.

The final orders of the court were that the appeal was allowed, and the decision of the FWC was set aside. The matter was to be remitted to the FWC for reconsideration, specifically focusing on the procedural fairness of the dismissal process.

Orders