Thomman Joseph v The Northcott Society - [2023] FWCFB 2

[2023] FWCFB 2

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Thomman Joseph
v

The Northcott Society

(C2022/6966)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CLANCY
COMMISSIONER YILMAZ

SYDNEY, 10 JANUARY 2023

Appeal against order PR746248 of Commissioner McKenna at Sydney on 27 September 2022 in matter number U2022/6445 – permission to appeal refused.

Mr Joseph (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against the order and decision in transcript[1] of Commissioner McKenna, issued on 27 September 2022, for which permission to appeal is required. The Order concerned an application brought by the Appellant for an unfair dismissal remedy from his employment with the Northcott Society (the Respondent) under s.394 of the Act.

Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and it did not do so. The Appellant filed an outline of submissions and made further oral submissions at the hearing on 21 November 2022.

For the reasons that follow, permission to appeal is refused.

Order Under Appeal

The relevant Order under appeal dismissed the Appellant’s unfair dismissal application for the reasons given extemporaneously during the hearing on 27 September 2022. We have provided a summary of the Commissioner’s reasons from the transcript of the hearing.

The Appellant was formerly employed by the Respondent as a disability support worker. The Appellant’s role involved working at a group home. The Appellant was dismissed on 6 June 2022 for alleged timesheet falsification, which was firmly denied by the Appellant. The dismissal was effected by the Respondent with a payment of five weeks' pay in lieu of notice.

The Commissioner first reviewed the Respondent’s evidence. The Respondent contended that the Appellant had been given multiple warnings that falsifying records was a breach of its policy from 2020 onwards.

The trigger for the Appellant’s dismissal arose from circumstances on 11 March 2022. In short, the Appellant was rostered for a shift from 2pm to 9pm at a group home. On the Respondent's evidence, Mr Pitigala, service manager, attended the group at around about 8.10pm and, having looked around, formed the view that the Appellant was not there. Mr Pitigala consequently called and emailed the Senior Operations Manager alerting them that the Appellant had left his shift early. Mr Pitigala also then amended the timesheet to reflect the fact that the Appellant left work at around 8pm.

During the investigation and show cause process, the Appellant, denied the allegation and offered no explanation for the alleged conduct. The Respondent found that it was more likely than not that the alleged conduct had occurred and that it was a breach of their code of conduct. At the end of the show cause processes, the Appellant was dismissed as confirmed in a letter dated 6 June 2022.

Turning to the Appellant’s evidence, the Appellant submitted that he completed his shift at 9pm on…

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: [2023] FWCFB 2
Decision Date: 10 JANUARY 2023

CaseChat Overview and Summary

Thomman Joseph has appealed a Fair Work Commission (FWC) decision dismissing his unfair dismissal claim against his former employer, The Northcott Society. The appeal concerns whether the dismissal was justified due to alleged timesheet falsification and whether the dismissal process was procedurally fair. The original decision found that the appellant did not complete his full shift on 11 March 2022 and did not accurately record his departure time on his timesheet, which constituted a valid conduct-related reason for dismissal. The appellant argued that the commissioner erred in her findings, however, the Full Bench found that the commissioner's factual findings were reasonably open to her based on the evidence presented.

The Full Bench considered the appellant's grounds of appeal, including whether the commissioner erred in accepting the respondent's evidence and not considering other relevant matters. The Full Bench found that the appellant's contentions were merely an expression of dissatisfaction with the outcome and did not disclose an arguable case of appealable error. The Full Bench also found that the commissioner applied the correct legal principles and made findings based on the evidence presented. The Full Bench concluded that it was not in the public interest to grant permission to appeal, as there was no diversity of decisions at first instance or issues of importance and general application.

In conclusion, the appeal was dismissed, and permission to appeal was refused. The Full Bench found that the commissioner's decision was based on an orthodox approach, and the appellant's contentions did not disclose an arguable case of appealable error. The Full Bench also found that the commissioner applied the correct legal principles and made findings based on the evidence presented.

Orders