[2010] FWAFB 7802

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Fair Work Act 2009
s.604 - Appeal of decisions

Employee W
Employer N



Appeal against decision [2010] FWA 4744 of Senior Deputy President Drake at Sydney on 25 June 2010 in matter number U2009/10340 - unfair dismissal on procedural grounds - quantum of compensation ordered - permission to appeal a decision under Part 3-2 of the Act - meaning of the expression ‘in the public interest’ - Fair Work Act 2009 ss 394, 400, 604.


[1] This decision concerns an application under s 604 of the Fair Work Act 2009 (the Act) by Employee W for permission to appeal against the decision of Senior Deputy President Drake on 25 June 2010. The decision under appeal arose from an application by Employee W for an unfair dismissal remedy pursuant to s 394 of the Act with respect to the termination of his casual employment by Employer N. The names of the parties have not been published in this decision at the request of the applicant.

[2] Employee W did not seek reinstatement in his original application. He sought a significant amount of compensation. The Senior Deputy President found the termination to be harsh, unjust and unreasonable on procedural grounds. She ordered compensation of 10 days salary. This appeal relates purely to the amount of compensation ordered.

[3] The matter was heard on the basis of written submissions of the parties.


[4] Employee W commenced employment with Employer N in June 2002 as a casual employee. He was one of a number of casual employees on a list who would be called upon by the employer to cover any absences and peaks in production.

[5] In 2007, Employee W was charged with various criminal offences. He was found guilty of eight charges in April 2009. His charges related to harassment, stalking and child pornography and his trial was reported by local press. He appealed unsuccessfully and is now incarcerated. Until the appeal decision was handed down 3 June 2010, no criminal conviction had been recorded against him.

[6] Employee W’s application to Fair Work Australia (FWA) was heard in February 2010 while his appeal on his criminal charges was pending. The Senior Deputy President issued her decision on 25 June 2010 after the decision on his appeal against his criminal conviction was handed down.

[7] Employee W last worked on 16 April 2009. He contended that work was available, but it was not offered to him due to the company’s knowledge of the charges against him. Employer N contended that work was sought to be offered to Employee W following 16 April 2009 on at least three occasions but he could not be contacted.

[8] In June 2009, Employer N deactivated Employee W’s security access card and on 14 July removed him from the casual roster. The removal from the casual roster was found by her Honour to constitute dismissal from his employment.

The decision under appeal

[9] The matter was heard before the Senior Deputy President on 23 and 24 February 2010. Her Honour found:

[10] The ultimate conclusions of her Honour were expressed as follows:

Extension of time

[11] The Notice of appeal was filed out of time. Employee W alleges that this is due to delays in mail and other communications reaching him in prison. It is unnecessary to consider these matters for the reasons below.

Permission to appeal

[12] An appeal against a decision concerning an unfair dismissal needs to be considered under s 604 of the Act as modified by s 400. Section 400 provides:

[13] The circumstances in which a matter might be considered to give rise to public interest considerations was recently considered by a Full Bench in GlaxoSmithKline Australia Pty Ltd v Colin Makin. 1 The Full Bench said:

[14] This approach to the question of permission to appeal has been adopted by other Full Benches of this Tribunal. 2 We also propose to adopt this approach.

Grounds of appeal

[15] As noted above, this appeal concerns the quantum of compensation ordered by the Senior Deputy President. In support of his appeal, Employee W filed documents entitled ‘Significant errors of fact’, ‘Full written submissions’ and ‘Supplementary full written submissions’.

[16] Employee W submitted that the decision of the Senior Deputy President is tainted by several errors of fact. He submitted that much of the evidence given by the witnesses’ was fabricated, contrived and formed part of a conspiracy against him to ensure that he did not return to the workplace and to damage his prospects with respect to any possible remedy.

[17] Employee W contends that the Senior Deputy President significantly erred in reducing the compensation ordered by accepting the evidence of Mr Cameron. He pointed to the comments made by the Senior Deputy President as to the limited weight, if any that may be given to the evidence of delayed allegations, and submitted that her Honour contradicts herself by nevertheless accepting Mr Cameron’s evidence.

[18] The employee submitted that it is in the public interest that the Tribunal grant him permission to appeal. He said that it is in the public interest that the correct facts surrounding his circumstance be made known as the decision has brought incorrect ones to the attention of the public. Such disclosure places him in danger within the prison system and wider community. He submitted that the decision creates an impression that it is fair and reasonable for an employer to dismiss an employee based on criminal convictions outside the workplace that are unrelated to the employer, its employees and the inherent duties required of the employee to perform.

[19] Employer N submitted that there is no significant error of fact or law in the decision of the Senior Deputy President.

[20] It also submitted that the Senior Deputy President did not take into account the evidence of Mr Cameron in determining the amount of compensation to be ordered nor did she reduce the amount ordered because of it. Alternatively, Employer N submitted that her Honour was within her rights pursuant to s 392(3) of the Act, to reduce the amount of compensation by reference to misconduct. Employer N submitted that any error in this process is not a significant error of fact which is required by s 400 of the Act.

[21] Employer N submitted that the conduct in question is reasonably connected to Employee W’s employment as there are female employees employed at the work site. It submitted that the Senior Deputy President made an assessment about the appropriate amount of compensation to be ordered, which in the circumstances, does not manifest an injustice. It further submitted that on a balanced view, the Senior Deputy President did not err in her exercise of discretion in determining the amount ordered and there is no public interest in this matter that warrants the granting of permission to appeal.

Public interest

[22] In our view, Employee W has not established that it is in the public interest to grant permission to appeal. The circumstances of the matter relate solely to one employee although the interests of other employees contributed to the reasoning of the employer leading to the decision to dismiss.

[23] The grounds of appeal relate to the evidence led in the case and the acceptance of evidence not favourable to Employee W. We are unable to discern any matter raised in the grounds or the submissions which can be said to attract the public interest. The allegations of mistakes on the facts must be viewed in the context of the decision.

[24] The issues which arose in the case have been considered many times. The decision involves the formation of a view as to certain specified matters relevant to the overall judgement as to the fairness of the termination. Her Honour found that a valid reason for the termination existed, but that because of the procedure adopted by the employer the termination was nevertheless harsh, unjust and unreasonable. We do not believe that there are any grounds of substance that establish that this discretion miscarried.

[25] Having found the termination harsh, unjust and unreasonable, her Honour turned to consider the appropriate remedy. Her Honour’s conclusions related to the primary finding and are fair and logical. A termination that arises from a valid reason but is unfair because of procedural grounds will commonly justify a small amount of compensation. No arguable error has been established. Nor do any of the matters give rise to the finding that it is in the public interest to grant permission to appeal.


[26] The applicant has not established grounds in the public interest to grant permission to appeal. We decline permission to appeal. It is unnecessary to consider the application for leave for the extension of time to lodge this appeal.


Written submissions:

Employee W on his own behalf

C Taylor for Employer N

 1   [2010] FWAFB 5343

 2   Graham Randall v Australian Taxation Office [2010] FWAFB 5626; Lois O’Grady v Royal Flying Doctor Service of Australia, South Eastern Section [2010] FWAFB 6177

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