Supreme Caravans Pty Ltd v H Pham - [2013] FWCFB 3016

[2013] FWCFB 3016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Supreme Caravans Pty Ltd
v
H Pham
(C2013/3755)

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER CARGILL

MELBOURNE, 22 MAY 2013

Appeal against decision [[2013] FWC 1559] of Commissioner Ryan at Melbourne on 12 March 2013 in matter number U2012/9893 - permission to appeal refused - appeal dismissed.

[1] This is an appeal, for which permission is required, pursuant to s.604 of the Fair Work Act 2009 (the Act), by Supreme Caravans Pty Ltd (the appellant) against a decision by Commissioner Ryan of 12 March 2013 1 in which the Commissioner found that the dismissal of Mr H Pham (the respondent) “was harsh, unjust or unreasonable”.2 The decision arose from an application of the respondent under s.394 of the Act for relief in respect of the termination of his employment by the appellant. The decision of 12 March 2013 incorporated a decision and reasons given in transcript on 7 March 2013 by Commissioner Ryan that the dismissal was harsh, unjust or unreasonable.

[2] In transcript, Commissioner Ryan dealt with other issues - the matters identified in s.394(2) of the Act - whether the application was made in time; s.382 of the Act - whether the respondent was a person protected from unfair dismissal and the matters, other than harsh, unjust or unreasonable, within s.385 of the Act - whether the respondent was unfairly dismissed, making findings in relation to each of those matters. None of the findings of Commissioner Ryan were challenged on appeal which is unsurprising since they were made following relevant concessions by the appellant.

[3] The appeal is limited to the finding of Commissioner Ryan that the termination was harsh, unjust or unreasonable.

The grounds of appeal

[4] The appeal was brought on two principle bases:

• The first ground of appeal advanced in the notice of appeal was that “the witness statements were dismissed and not allowed into evidence”.

• The second ground that “the witness statements and the evidence will prove that Mr Pham did intend to steal the piece of Checker plate”.

[5] In its written submission 3 in the appeal, the appellant submitted that:

“[O]ur written submission concerning the appeal is written based on a response to Commissioner Ryans’ findings and how the outcome may have differed if witnesses were present” [emphasis added].

It concluded:

“We wish to apologise to Fair Work Australia and Commissioner Ryan for not having our witnesses present. We know that if our witnesses were present the outcome of the proceedings would have been different.

We thank Fair Work Australia for allowing us to apply for an appeal and present our witnesses and their statements which will without a doubt prove Mr Phams intentions to steal. It will prove that Mr Phams actions were serious misconduct therefore warranting his dismissal.” [emphasis added]

Approach to the appeal

[6] Section 604(1) of the Act provides for an appeal against a decision by a…

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.

Keep reading for free

Create a free CaseChat account to read Supreme Caravans Pty Ltd v H Pham and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] FWCFB 3016
Decision Date: 22 MAY 2013

CaseChat Overview and Summary

Supreme Caravans Pty Ltd sought to appeal a decision made by Commissioner Ryan of the Fair Work Commission, which was handed down on 12 March 2013 in Melbourne. The decision pertained to a matter numbered U2012/9893, and the crux of the dispute centred around issues of unfair dismissal and the procedural fairness of the proceedings. The appeal was lodged against the Commissioner's ruling, which was ultimately dismissed, with the permission to appeal also being refused.

The primary legal issues the court had to address involved the correctness of the Commissioner's decision regarding the dismissal of an employee and the procedural fairness of the hearing process. Specifically, the appellant contested whether the Fair Work Commission had correctly interpreted the relevant provisions of the Fair Work Act 2009 and whether the proceedings adhered to the principles of natural justice.

In its judgment, the court meticulously reviewed the evidence and arguments presented. It found that the Commissioner's interpretation of the law and the application of the principles of natural justice were sound. The court determined that the decision-making process was fair and that the Commissioner had correctly applied the law. Consequently, the appeal was dismissed, and the permission to appeal was also denied. The court upheld the original decision of the Commissioner.

Orders