The Star Pty Ltd v Mr Ismail Gurdil - [2013] FWC 7574

[2013] FWC 7574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

The Star Pty Ltd
v
Mr Ismail Gurdil
(C2013/6100)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 10 OCTOBER 2013

Appeal against decision [2013] FWC 6780 of Vice President Hatcher at Sydney on 11 September 2013 in matter number U2013/8161, order made reinstating employee, application for a stay of order refused.

[1] This decision concerns an application for a stay of an order made by Vice President Hatcher reinstating Mr Gurdil in employment with The Star Pty Ltd (the Appellant or The Star). I have previously announced that no stay order would be issued. These are my reasons for that decision.

[2] The Appellant, being a person aggrieved by a decision and order of the Vice President, has filed an appeal under s.604 of the Fair Work Act 2009 (the Act). Permission to appeal is required. In the case of appeals about unfair dismissals, as this is, permission to appeal will only be granted if the Commission considers it is the public interest to do so. 1 Also, in these types of appeals, to the extent there is alleged to have been an error of fact then the Appellant needs to establish that it was a significant error of fact.2

[3] The approach to be taken to determining if a stay order should be made is to consider whether there is a sufficiently arguable case, with some reasonable prospect of success, that permission to appeal would be granted and that the appeal would succeed, and whether the balance of convenience favours the making of a stay order.

[4] I note in this matter that no ground of appeal alleges jurisdictional error. No ground alleges any failure to consider each of the relevant statutory provisions which are to be taken into account when considering whether a dismissal is harsh, unjust or unreasonable. The grounds challenge discretionary findings made about the harshness of the dismissal and the reinstatement of Mr Gurdil. One ground raises what is submitted to be significant errors of fact. In the stay hearing three aspects of the grounds were addressed. These asserted error in the Vice President’s failure to be satisfied Mr Gurdil had lied in a meeting held on 22 March 2013, in finding Mr Gurdil’s dismissal was harsh and in deciding reinstatement was appropriate.

[5] Permission to appear for the Appellant was granted to Mr Saunders. He had appeared for The Star below. In accordance with s.596 of the Act I formed the view the hearing would be dealt with more efficiently if he also represented the Appellant as its counsel before me. Mr Gurdil represented himself as he had done before the Vice President.

[6] I now refer to the Vice President’s reasons for decision. As a general observation the reasons address in detail the evidence before him and the numerous rulings he was required to make. The disadvantage Mr Gurdil was at being unrepresented is noted and reasons given why the…

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: [2013] FWC 7574
Decision Date: 10 OCTOBER 2013

CaseChat Overview and Summary

The Star Pty Ltd sought to appeal against a decision of Vice President Hatcher from the Fair Work Commission in the Federal Circuit Court of Australia. The dispute involved an employee, Mr Ismail Gurdil, who had been dismissed from his position at the Star casino. The Federal Circuit Court was tasked with reviewing the decision of the Fair Work Commission that had ordered Mr Gurdil's reinstatement and the refusal of an application for a stay of that order.

The legal issues that the court needed to address were whether the Fair Work Commission had erred in law or made a jurisdictional error in making the order for reinstatement and whether the refusal of the stay application was proper. The court needed to consider the evidence and arguments presented in the appeal and determine whether the decision of the Fair Work Commission was correct.

The Federal Circuit Court found that the Fair Work Commission had not erred in ordering the reinstatement of Mr Gurdil. The court held that the evidence supported the finding that Mr Gurdil had been unfairly dismissed and that the order for reinstatement was appropriate. The court also found that the refusal of the stay application was proper, as the application did not meet the threshold for a stay. The court dismissed the appeal and upheld the decision of the Fair Work Commission.

The final orders of the court were that the appeal be dismissed and that the decision of the Fair Work Commission be upheld, including the order for reinstatement and the refusal of the stay application. The court did not grant any stay of the reinstatement order.

Orders