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Wally Moszko v Simplot Australia Pty Ltd

Wally Moszko v Simplot Australia Pty Ltd

Case [2021] FWCFB 6046 10 November 2021

Appeal

Unfair Dismissal

Reinstatement

Employment & Labour Law

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[2021] FWCFB 6046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Wally Moszko
v
Simplot Australia Pty Ltd
(C2021/6525)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SAUNDERS
COMMISSIONER WILSON

SYDNEY, 10 NOVEMBER 2021

Appeal against decision [2021] FWC 2404 of Commissioner Harper-Greenwell at Melbourne on 4 September 2021 in matter number U2020/15864 – appeal from decision not to order reinstatement in unfair dismissal proceedings – permission to appeal granted – appeal upheld – decision on remedy quashed – rehearing by Full Bench – reinstatement ordered.

Introduction

[1] Mr Wally Moszko was employed as a shift feeder by Simplot Australia Pty Ltd (Simplot) at its potato processing plant in Ulverstone, Tasmania. He was also an AMWU delegate and a work, health and safety representative. Having worked for Simplot for about 23.5 years, Mr Moszko was dismissed on 20 November 2020 in connection with five allegations made against him in respect of his conduct on 20 and 21 October 2020. Commissioner Harper-Greenwell found that none of the five allegations were substantiated and concluded that Mr Moszko’s dismissal was harsh, unjust and unreasonable. 1 The Commissioner went on to find that reinstatement was inappropriate and ordered Simplot to pay compensation to Mr Moszko in the sum of $9,199.01 plus superannuation. Mr Moszko appeals against the decision not to order that he be reinstated by Simplot. No cross-appeal or notice of contention has been filed by Simplot.

[2] The parties filed detailed written submissions, which we have taken into account, and consented to the appeal being determined on the ‘papers’.

The nature of unfair dismissal appeals

[3] An appeal under section 604 of the Fair Work Act 2009 (Act) is an appeal by way of rehearing. 2 An appeal may only be made with the permission of the Commission.

[4] This appeal is one to which section 400 of the Act also applies. Under section 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal unless it considers it in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.

[5] The test under section 400 has been characterised as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment4. In GlaxoSmithKline Australia Pty Ltd v Makin5 a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with…

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.

Continue reading Wally Moszko v Simplot Australia Pty Ltd

Details

AGLC: Wally Moszko v Simplot Australia Pty Ltd [2021] FWCFB 6046
Case: [2021] FWCFB 6046
Decision Date: 10 NOVEMBER 2021

CaseChat Overview and Summary

In the Fair Work Commission, Wally Moszko sought relief against Simplot Australia Pty Ltd for unfair dismissal, specifically challenging the decision not to order reinstatement. Commissioner Harper-Greenwell dismissed Moszko's appeal for reinstatement at Melbourne on 4 September 2021, a decision that Moszko subsequently appealed. The central issue was whether the Commission had erred in law by not ordering reinstatement as a remedy for unfair dismissal. The appeal concerned the scope and application of the Fair Work Act 2009 in relation to reinstatement orders in unfair dismissal cases.

The Full Bench of the Commission considered whether the original decision was legally sound, particularly in its assessment of the appropriateness of reinstatement. The appeal was granted permission, and upon review, the Full Bench found that the original decision contained errors in law. The Commission determined that the original decision had misapplied the statutory criteria for reinstatement, leading to an unjust outcome for Moszko. Consequently, the appeal was upheld, and the original decision on remedy was quashed. The Full Bench ordered a rehearing to determine an appropriate remedy, with a specific direction that reinstatement be considered.

The Full Bench ultimately found that reinstatement was the appropriate remedy in this case. Moszko was ordered to be reinstated to his former position, with appropriate back pay and other entitlements. The decision underscores the importance of correctly applying the statutory framework when considering remedies for unfair dismissal, highlighting the need for careful analysis of reinstatement orders in such proceedings.

Orders