GENERAL PROTECTIONS – extension of time – ss.365, 366, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission refused to grant an extension of time – Makin considered in relation to the public interest test – there must be an arguable case of appellable error in order for permission to appeal to be granted – error of the type described in House v The King must therefore be identified – grounds for appeal included that the Commission erred by not being satisfied that the action taken by the appellant to dispute the dismissal constituted exceptional circumstances – at first instance the Commission concluded that appellant did not directly dispute his dismissal – Full Bench satisfied that appellant made out an arguable case in relation a failure by the Commission to consider evidence of the action taken by the appellant to dispute the dismissal – this might have resulted in an injustice in the Commission’s weighing process in reaching his decision – as a result of the Commission’s decision the appellant is denied the benefit of a conference before the Commission and then from taking his claim to court – public interest enlivened – permission to appeal granted – substantive appeal to be heard. Appeal by Perry against decision of Kovacic DP of 12 May 2016 [[2016] FWC 2972] Re: Rio Tinto Shipping P/L t/a Rio Tinto Marine
August 5, 2016
CASE PROCEDURES – appeals – extension of time – s.604 Fair Work Act 2009 – Full Bench – applicant lodged Notice of Appeal two days outside of time prescribed – Full Bench was to determine whether, in all the circumstances, the interests of justice favour an extension of the time within which to lodge appeal – applicant contended she was unable to comply with the time limit in which to initiate the appeal due to anxiety and stress for which medical and psychological treatment was ongoing – Full Bench not persuaded on medical evidence provided that symptoms of applicant’s condition severe enough during the relevant period as to satisfactorily explain delay – further, Full Bench not persuaded appeal raised any issues of importance or general application, nor did it identify any relevant diversity of decisions at first instance – not satisfied there was a likelihood of permission to appeal being granted – Full Bench not persuaded to extend period of time within which appeal may be lodged – application refused. Appeal by Rigby against decision in transcript and order of Hamilton DP of 10 May 2016 [PR580211] Re: BMS Retail Group P/L t/a Champions IGA
August 5, 2016
CASE PROCEDURES – representation – ss.400, 596, 604 Fair Work Act 2009 – permission to appeal – Full Bench – appellants lodged unfair dismissal applications against respondent – respondent granted permission to be represented by a lawyer in the substantive proceedings at first instance – held representation of the respondent will make substantive proceedings more efficient given their complexity – appellants sought permission to appeal initial decision – submitted previous decisions in related matters were against the respondent being represented – respondent has a dedicated HR department and successfully ran more complex related matters without representation – initial decision was void because it contained no reasons – issues in substantive proceedings were not complex and the Commission could not know if issues were complex when she made her decision – initial decision did not take into account s.596(2) factors – respondent has made fraudulent submissions to the Commission in related matters and this matter cannot progress until these concerns are resolved – respondent submitted initial decision was interlocutory so permission to appeal is not a right – not in public interest – no appealable error disclosed – initial decision applied s.596 even though it was brief – initial decision not unjust – initial decision not disharmonious with previous decisions made on representation in related matters – Full Bench first considered whether s.400(1) is relevant given s.596 is not in Part 3-2 – cited Hadfield and held that s.400(1) applied but they would also provide a decision had s.400(1) not applied – cited the reasoning in Hutton and FSU v Comsec as sufficient to determine that permission to appeal should not be granted because appeals against interlocutory decisions are discouraged – held no public interest because matter does not extend beyond the direct interests of the parties – s.596 principles well settled by other decisions – no arguable error and satisfied initial decision properly undertook the two step test of s.596 – previous interlocutory proceedings not determinative on future interlocutory proceedings – respondent having legal representation is not unjust – alleged fraudulent submissions not relevant until they are pursued in the relevant court – permission to appeal refused. Appeal by King and Ors against decision of Drake SDP of 27 June 2016 [[2016] FWC 4189] Re: Patrick Projects P/L
August 5, 2016
TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission refused to grant appellant extension of time to lodge unfair dismissal application – appellant lodged her application nine days late – reasons for delay were poor health as result of depression and anxiety, bad fortune at not being able to obtain preferred legal advisor, lack of knowledge of 21 day time limit and caring for ill granddaughter – appellant’s representative submitted the Commission inadvertently fell into error concluding that medical evidence did not express or give indication of extent of appellant’s incapacity due to illness – also submitted that Commission did not consider evidence as to appellant’s incapacity – submitted that viewed cumulatively these were significant errors of fact – Commission’s power of appeal are only exercisable if there is error on part of primary decision maker [Coal and Allied Operations] – Full Bench did not find arguable case of error in finding medical evidence did not provide any indication as to state of her incapacity or her illness precluded her from lodging application – found Commission properly considered medical evidence – decision at first instance set out basis for conclusions and weighed up medical evidence with other factors – not satisfied appeal raised issues of general importance and/or general application – permission to appeal refused. Appeal by Harris against decision of Kovacic DP of 14 April 2016 [[2016] FWC 2370] Re: Westpac Banking Corporation t/a Westpac
August 5, 2016
TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission dismissed the appellant’s application on the basis that the appellant had not been ‘dismissed’ within the meaning of the FW Act – appellant seeks permission to appeal to Commission’s decision – whether in public interest [GlaxoSmithKline] – whether decision at first instance involved an arguable case of appealable error [Wan] – appellant put forward three grounds of appeal – appellant submitted that respondent breached implied contractual term of mutual trust and confidence – such terms are not as a matter of law implied in all employment contracts [Barker] – appellant further submitted he was forced to resign – Full Bench posited appellant had options available to rebut allegations made about him – lastly, appellant argued Drake SDP failed to consider material facts – paragraph 6 of original decision suggested otherwise – public interest not enlivened – permission to appeal refused – application dismissed. Appeal by Baychkov against decision of Drake SDP of 26 May 2016 [[2016] FWC 3405] Re: Whitech P/L
August 5, 2016
TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance Commission dismissed the appellant’s application on the basis that dismissal was not harsh, unjust or unreasonable – appellant seeks permission to appeal to Commission’s decision – whether in public interest [GlaxoSmithKline] – whether decision at first instance involved an arguable case of appealable error [Wan] – appellant was dismissed for poor performance – number of warnings issued and chance to respond to warnings – appellant submitted that internal disciplinary procedures did not refer to a right to bring a support person to performance meetings – evidence suggested appellant was afforded right to have support person – earlier performance discussions were not within meaning of the Code – public interest not enlivened – permission to appeal refused – application dismissed. Appeal by Demin against decision of O’Callaghan SDP of 31 May 2016 [[2016] FWC 3434] Re: Kwasi Studios P/L
August 5, 2016
ANNUAL WAGE REVIEW – 2015/16 financial year – correction – s.285 Fair Work Act 2009 – Full Bench – Expert Panel (the Panel) delivered the Annual Wage Review 2015-16 decision on 31 May 2016 [[2016] FWCFB 3500] – correspondence was received from the Australian Catholic Council for Employment Relations (ACCER) which sought to draw to the attention of the Panel an error in Table 5.7 at paragraph [436] of the Decision – error was the use of incorrect figures for poverty lines for December 2010 – desirable to correct the public record – the Panel expressed their appreciation to ACCER for drawing the matter to their attention – Attachment to this Statement contains a corrected Table and description of the change in disposable income as shown by the corrected Table. Annual Wage Review 2015-16
August 5, 2016
The week finishes with 31 applications for redress of labour hire grievances in the Fair Work Commission today. The full list is: Parktrent Properties Group (Kafizas), The Cram Foundation (Nicol), Nav Imports Australia Pty Ltd (Nathoo), Silver Grevillea Florist (Wyatt), National Press of Australia (Harrison), Australian Postal Corporation (Southwell), Platypus Pty Limited (Jiminez), Ramsgate RSL Memorial CLub (Chalhoub), Jaiara Pty Ltd (Chen), Westflex Pty Ltd (Ireland), Doinwell Investments Pty Ltd (Philp), Perth Ice Works (Stribley), Ausino West Pty Ltd ATF The Supercrane Unit Trust (Raschilla), HGC Administrative Services Pty Ltd (Burns), Saint Thomas Aquinas College (James), Metropolitan Express Transport Services Pty Ltd (Jones), Eliana Construction and Developing Group Pty Ltd (Schneider), Wilson Parking Australia (Cowan), Cloverdale (Lee), Solar Station Alpha Pty Ltd (Von Erkel), CMIB Insurance Services P/L (Finemore), Aldi Stores (Hocking, Morton), Qantas Domestic Pty Ltd (Atherton), QLD News (Grant), Diamond Protection Pty Ltd (Richardson), Brisbane Racing Club Ltd (Challinger), David Home Family Trust (Taylor), Churchill Management Pty Ltd (Cunniffe), SA Power Networks (Ellery), Arrow Airport Services Pty Ltd (Rajabi).
