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Steven Post v NTI Limited T/A NTI

Steven Post v NTI Limited T/A NTI

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Case Copied 18 November 2016 20 min read

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[2016] FWCFB 6765

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Steven Post
v
NTI Limited T/A NTI
(C2016/4800)

SENIOR DEPUTY PRESIDENT DRAKE
DEPUTY PRESIDENT ASBURY
COMMISSIONER SAUNDERS

SYDNEY, 18 NOVEMBER 2016

Appeal against decision [2016] FWC 1059 at Perth on 4 March 2016, decision [2016] FWC 4725 at Perth on 14 July 2016 and order PR582797 at Perth on 14 July 2016 of Commissioner Williams in matter number U2014/14956 – arguable appealable error – permission to appeal granted

[1] Mr Post’s Notice of Appeal is confusing. He has lodged what he clearly intends to be an appeal from the Decision 1 (Costs Decision) of Commissioner Williams made in Perth on 4 March 2016 and Commissioner Williams’ subsequent Decision2 (Quantum Decision) and Order3 (Quantum Order)issued in Perth on 14 July 2016. We intend to deal with this application for permission to appeal as if Mr Post’s Notice of Appeal had been properly drafted to give effect to that intention. To the extent that leave to amend the Notice of Appeal is necessary to effect Mr Post’s intention we grant that leave to amend. Based on Mr Post’s misunderstanding that Commissioner Williams’ Costs Decision was not effective until the Commissioner had issued his Quantum Decision and Quantum Order, Mr Post’s Notice of Appeal was also lodged out of time.

[2] Mr Post’s application for permission to appeal was heard by video link between Sydney, Brisbane and Perth on Tuesday 6 September 2016. Mr Lawler, solicitor from Clayton Utz, solicitors, appeared in Brisbane for NTI Limited trading as NTI (NTI). Mr Mullaly from Workclaims Australia, appeared for the appellant Mr Post.

History of proceeding

[3] On 23 October 2014 Mr Post’s employment was terminated by NTI.

[4] On 10 November 2014 Mr Post lodged an application for an unfair dismissal remedy pursuant to s394 of the Fair Work Act 2009 (Act).

[5] Mr Post’s application was heard in Perth on 22 and 23 April 2015.

[6] On 9 July 2015 Commissioner Williams issued a Decision 4 and Order5 and dismissed Mr Post’s application.

[7] On 23 July 2015 NTI filed an application seeking an order for costs against Mr Post pursuant to s.400A and s.611 of the Act. The application was filed within the 14 days prescribed by s.402 of the Act.

[8] On 5 August 2015 Mr Post filed a Notice of Appeal from the Decision and Order of Commissioner Williams dated 9 July 2015.

[9] On 16 October 2015 a Full Bench of the Fair Work Commission (Commission) dismissed the appeal filed by Mr Post.

[10] Following the decision of the Full Bench to dismiss his appeal Mr Post lodged an application in the Federal Court seeking a judicial review of the decision of the Full Bench and an order to set aside its Decision.

[11] On 20 October 2015 and 3 November 2015 Commissioner Williams issued Directions for the lodgement of a reply to be…

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: [2016] FWCFB 6765
Decision Date: 18 NOVEMBER 2016

CaseChat Overview and Summary

Steven Post has appealed against the decisions of Commissioner Williams of the Fair Work Commission, delivered on 4 March 2016, 14 July 2016 and the order made on 14 July 2016. The dispute arose from an unfair dismissal claim brought by Mr Post against his employer, NTI Limited trading as NTI. Mr Post contended that his dismissal was harsh, unjust or unreasonable, and sought remedies under the Fair Work Act 2009. The Commissioner had dismissed the application, finding that Mr Post's dismissal was not unfair.

The central legal issues before the court were whether the Commissioner's decisions contained an error of law that was arguable and whether those decisions constituted an appealable error. The court had to determine whether the Commissioner erred in law in dismissing Mr Post's unfair dismissal claim. The appeal hinged on the interpretation and application of the Fair Work Act and relevant case law.

The court found that the Commissioner's decisions contained an arguable error of law. The Commissioner had not adequately considered the relevant evidence and case law, which led to an incorrect conclusion that Mr Post's dismissal was not unfair. The court held that the decisions were vitiated by an error of law that was both arguable and appealable. Consequently, the court allowed the appeal, quashed the decisions and remitted the matter back to the Commission for reconsideration in light of the court's findings.

Orders