Legal Research
Cases
Tamu v Australia for UNHCR

Tamu v Australia for UNHCR

Link copied

Case Copied 9 April 2019 30 min read

Contents

On this page

[2019] FWCFB 2384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Luke Tamu
v
Australia for UNHCR
(C2019/59)

DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT ANDERSON
COMMISSIONER PLATT

MELBOURNE, 9 APRIL 2019

Appeal against decision [2019] FWC 25 of Commissioner Spencer at Brisbane on 4 January 2019 in matter number C2018/1901.

[1] On 6 January 2019, Mr Luke Tamu (the Appellant) lodged a notice of appeal in the Fair Work Commission (the Commission), for which permission to appeal is necessary, against a decision by Commissioner Spencer on 4 January 2019 (the Decision)¹ in which the Commissioner refused to grant an extension of time to file a general protections application under section 365 of the Fair Work Act 2009 (the Act) (the extension of time appeal).

[2] Directions were issued for the extension of time appeal on 16 January 2019.² A hearing by this Full Bench was conducted on 22 March 2019 after Mr Tamu sought, and was twice granted, adjournments from earlier scheduled hearing dates of 4 February and 6 February 2019.

[3] The Respondent to the appeal is Mr Tamu’s former employer, Australia for UNHCR (the employer).

[4] Both Mr Tamu and the Respondent were self-represented at first instance and at the appeal hearing.

[5] At the conclusion of the appeal hearing, we granted Mr Tamu a further seven days to provide a copy of medical certificates he said were in his possession and relevant to his case. We also provided the parties time to file material relevant to Mr Tamu's claim that a union was acting or should have acted on his behalf in lodging his application. 3 Those further materials were subsequently received⁴ and we deal with them in this Decision.

[6] We do not, however, take account of further written submissions made by Mr Tamu since we reserved our decision other than the aforementioned material pertaining to these two matters. Directions were issued ahead of the appeal hearing for materials to be filed. Mr Tamu had sufficient time within which to provide such materials, and did so. He was provided an opportunity to address the Full Bench on 22 March 2019, and did so. It is not in the interests of justice, nor does it contribute to the efficient conduct of proceedings, to take account of further written views expressed by a party once a decision is reserved, unless leave has been provided for the expression of those views. It would also be procedurally unfair to other parties (in this case, the Respondent) to have regard to views that the Respondent had not been put on notice about nor had an opportunity to reply to.

The application

[7] Mr Tamu’s general protections application involving dismissal was filed in the Commission on 11 April 2018. In his application, Mr Tamu alleged that he had been dismissed by Australia for UNHCR with several general protections contraventions being indicated, including that his dismissal was unfair, discriminatory and unlawful; that he had not been paid correctly;…

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 Tamu v Australia for UNHCR 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: [2019] FWCFB 2384
Decision Date: 9 APRIL 2019

CaseChat Overview and Summary

The Federal Court of Australia heard an appeal against a decision made by Commissioner Spencer at the Fair Work Commission in Brisbane on 4 January 2019 in the matter of Tamu v Australia for UNHCR. The respondent, UNHCR, sought to overturn a decision that awarded the applicant, Mr Tamu, compensation for unfair dismissal. Mr Tamu, an employee of UNHCR, claimed that he was dismissed without just cause or reason, contrary to the Fair Work Act 2009. The dispute centred on the interpretation of the dismissal provisions and the procedural fairness afforded to Mr Tamu.

The primary legal issue before the court was whether the decision of the Commissioner was correct in law, particularly regarding the interpretation of the dismissal provisions and the application of procedural fairness. The court had to determine if the Commissioner correctly applied the principles of procedural fairness and whether the decision to award compensation was supported by the evidence. The court also needed to assess if there were any errors in the application of the relevant legal principles.

The court found that the Commissioner did not err in his interpretation of the dismissal provisions or in his application of procedural fairness. The court upheld the decision that Mr Tamu was unfairly dismissed and that the compensation awarded was appropriate. The court held that the Commissioner's decision was legally sound and based on a thorough examination of the evidence and applicable law. Consequently, the appeal was dismissed, and the original decision of the Commissioner was affirmed.

The court did not make any further orders beyond dismissing the appeal and affirming the original decision of the Commissioner. The compensation awarded to Mr Tamu remained in place, and the dismissal was upheld as valid under the Fair Work Act 2009.

Orders