[2011] FWAFB 6747

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Fair Work Act 2009
s.604 - Appeal of decisions

Azim Ehssan
Infoxchange Australia




Appeal against decision in transcript of Commissioner Gay at Melbourne on 3 August 2011 in matter number U2010/14303.

[1] This is an appeal, for which permission is required, against Commissioner Gay’s decision to dismiss Mr Ehssan’s application, made pursuant to s.394 of the Fair Work Act 2009 (the FW Act). Commissioner Gay’s decision was recorded on transcript at the conclusion of a hearing on 3 August 2011. On 25 August 2011 the Commissioner published his decision 1.

[2] Mr Ehssan’s Notice of Appeal did not identify grounds upon which the appeal was based. Attached to the appeal was a letter dated 22 August 2011 in which Mr Ehssan effectively asserted that the Commissioner's conclusions were incorrect.

[3] Directions requiring Mr Ehssan to file and serve an outline of his position were issued on 30 August 2011. Mr Ehssan was reminded of the importance of compliance with these directions at a directions hearing conducted by telephone on 8 September 2011. Notwithstanding this, the only material filed in support of the appeal is Mr Ehssan’s letter of 22 August 2011.

[4] Mr Ehssan was employed by the respondent initially as a finance officer and then as the senior finance officer. The issue in contention before the Commissioner involved an agreement between Mr Ehssan, the respondent’s General Manager and the Chief Executive Officer for Mr Ehssan to cash out a substantial amount of his annual leave. The decision deals at length with a meeting that occurred in May 2010 and then subsequent events when, despite instructions to the contrary, the payment of leave loading to the applicant was identified. The Commissioner detailed his findings about the arrangement and concluded “.... If, as I have found, it was a term of the 25 May agreement that the leave payout could only be applied with no leave loading paid out, then I think for that to have been disregarded does constitute a valid reason in the sense of s.387(a). 2 The Commissioner went on to consider the remaining subsections in s387 and concluded “.... It is for all those reasons that in my view this is not an application that can succeed because I think there was serious misconduct involved as a result of the findings I have made and I dismiss the application.3

[5] At the appeal hearing Mr Ehssan confirmed his position that Commissioner Gay’s decision was wrong and that he did not properly take into account the evidence before him.

[6] The respondent in this matter, Infoxchange Australia submitted that the appeal was not competent, that appealable errors had not been established and that public interest considerations had not been made out.

[7] Section 604 of the FW Act states:

[8] Section 400 states:

[9] In GlaxoSmithKline Australia Pty Ltd v Colin Makin, 4 these public interest considerations were summarised in the following terms:

[10] We have considered the argument put forward by Mr Ehssan but in our view Mr Ehssan has not established any errors of an appealable nature relative to the Commissioner's decision. The Commissioner accepted the evidence of Mr Mahar, the respondent’s Managing Director over that of the appellant as to the relevant meeting and discussions. The Commissioner considered and made findings with respect to the criteria in s.387. These findings were open to the Commissioner. We are not satisfied that the public interest is enlivened.

[11] Permission to appeal is refused and the appeal is dismissed.



A Ehssan on his own behalf.

J Tracey Counsel for Infoxchange Australia.

Hearing details:

September 22.

 1   [2011] FWA 5491

 2   Ibid, para.46

 3   Ibid, para.53

 4   [2010] FWAFB 5343

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