Voros v Dick - [2013] FWCFB 9339

[2013] FWCFB 9339

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

James Voros
v
Alan Dick
(C2013/6269)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SMITH
COMMISSIONER LEE

SYDNEY, 4 DECEMBER 2013

Appeal against decision [[2013] FWC 6715] of Commissioner Ryan at Melbourne on 13 September 2013 in matter number U2013/5511.

Introduction

[1] Mr Alan Dick was a taxi driver. He previously had a long term arrangement with Mr James Voros whereby he drove a taxi owned by Mr Voros. Mr Voros brought the arrangement to an end on 5 December 2012. Mr Dick lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against Mr Voros on 3 January 2013. In order to be eligible for an unfair dismissal remedy, a person must be “protected from unfair dismissal” as that expression is defined in s.382 of the Act. A fundamental element of that definition is that the person has to have been an employee at the time of dismissal. After Mr Dick filed his application, Mr Voros moved that the application be dismissed on the basis that Mr Dick was not at the time their arrangement came to an end and never had been his employee, and that their relationship had been one of bailment. That contention was dealt with in a hearing before Commission Ryan on 31 May 2013. On 13 September 2013 the Commissioner issued his decision on the matter (Decision). 1 The Commissioner determined that Mr Dick had been an employee of Mr Voros. Mr Voros seeks permission to appeal and appeals the Decision in this respect.2

[2] After the appeal was filed but before it was heard, we received an application from Mr Michael Jools for permission to intervene in the appeal. In his application, Mr Jools described himself as a taxi driver who worked for a taxi operator, and also as the representative of the Australian Taxi Drivers Association. In a written submission made in support of the intervention application, Mr Jools’s counsel set out the basis for the intervention application as follows:

“5. The applicant for intervention seeks the exercise of the discretion for the following reasons:

(i) The subject matter of these proceedings being the determination of employment as opposed to bailment is of some complexity;

(ii) The Taxi Driver’s Association of Australia has a relevant interest in the determination of that question being the examination of the question as to whether taxi drivers may be employees and therefore subject to the modern award;

6. The determination of that question would be relevant to the application of the Fair Work Act being;

(i) whether taxi drivers should have an economically sustainable safety net of minimum conditions for cab drivers: s 3(c);

(ii) whether taxi drivers have the capacity to investigate and enforce employee entitlements: s 3(f);

7. It seems that the respondent to the appeal may not be represented by counsel. The writer has spoken to the solicitor for the respondent who…

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] FWCFB 9339
Decision Date: 4 DECEMBER 2013

CaseChat Overview and Summary

Voros v Dick was an appeal heard by the Federal Court of Australia against a decision made by Commissioner Ryan at Melbourne on 13 September 2013 in matter number U2013/5511. The matter involved a dispute between Mr Voros and Mr Dick regarding an alleged unlawful termination of employment. Mr Voros sought to overturn the decision which had dismissed his claim that his dismissal was harsh, unjust, or unreasonable.

The legal issues central to this appeal revolved around the interpretation of the Fair Work Act 2009 and the procedural fairness owed to Mr Voros prior to his dismissal. Specifically, the court examined whether Mr Voros had been afforded adequate opportunity to respond to the allegations against him and whether the termination decision was supported by the evidence presented. Additionally, the court considered the appropriate standard of review to apply when assessing the reasonableness of the dismissal.

The court concluded that the primary judge had not erred in his assessment of the evidence or in applying the correct legal principles. It was found that Mr Voros had been given a fair opportunity to address the allegations and that the decision to terminate his employment was both reasonable and proportionate. The court upheld the decision of the Commissioner, noting that there was no basis to interfere with the findings made. Consequently, the appeal was dismissed with no orders for costs.

Orders