Unfair Dismissal How Do I Appeal A Decision?
You cannot appeal the umpires decision, simply because you do not like the unfair dismissal result. Seriously the odd’s are not in your favor. You must have the grounds, its enshrined in law, it’s not what you think. Unfair Dismissal How Do I Appeal A Decision? It’s not easy. Applicants think now that I’ve lost I know what to do next time. There is no next time, you can only appeal on certain grounds. Read below it will clarify that you can and can’t do.
How does it work
An appeal is an application for a Full Bench of the Fair Work Commission to review a unfair dismissal decision of a single member of the Fair Work Commission and determine if the decision was correct. A person must seek the permission of the Fair Work Commission to appeal a decision. They are referred to as the “Appellant”. Thus, if you have undergone an arbitration or hearing and received a decision that you would like reviewed, there is an option to seek permission to appeal or review the decision.
Appeals are not readily granted and there are strict grounds the appellant must satisfy in order for an appeal to be granted. There are many barriers to an appeal even in the best case and there is no automatic right to appeal.
Who can appeal a decision?
A person who is aggrieved by a unfair dismissal decision made by the Commission (other than a decision of a Full Bench or Expert Panel) may appeal the decision. This is with the permission of the Commission.[1] A person who is aggrieved is generally a person who is affected by a decision or order of the Commission and who does not agree with the decision or order. The term can extend beyond people whose legal interests are affected by the decision in question to people with an interest in the decision. Beyond that of an ordinary member of the public, such as, in some circumstances, a union or an employer association.[2]
How long do I have to appeal a decision?
An appeal must be lodged with the Fair work Commission within 14 days after the date the decision being appealed was issued.[3] If an appeal is lodged late, an application can be made for an extension to the time limit.[4]
What are the requirements for an appeal?
In each appeal, a Full Bench of the Fair work Commission needs to determine two issues:
- whether permission to appeal should be granted, and
- whether there has been an error in the original unfair dismissal decision.
In regards to whether permission to appeal should be granted, the FW Act generally provides that the Fair work Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so.[5] However in relation to an unfair dismissal matter the opposite is true. Permission to appeal an unfair dismissal decision must not be granted unless the Fair work Commission is satisfied that it is in the public interest to do so.[6] If the error that is alleged is an error of fact, then the person making the appeal must persuade the Full Bench that it is a significant error of fact.[7]
Task of assessing whether the public interest
The task of assessing whether the public interest test has been met is a discretionary one involving a broad value judgment.[8] Some considerations that the Fair work Commission may take into account in assessing whether there is a public interest element include:
- where a matter raises issues of importance and general application
- There is a diversity of decisions so that guidance from a Full Bench of the Fair work Commission is required
- where the original decision 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 similar matters.[9]
The public interest test
The public interest test is not satisfied simply by the identification of error or a preference for a different result.[10]
In regards to determining whether there was an error of law, an error of law of law may be a jurisdictional error, which means an error concerning the tribunal’s power to do something. Or it may be a non-jurisdictional error concerning any question of law which arises for decision in a matter. In cases involving an error of law, the Commission is concerned with the correctness of the conclusion reached in the original decision, not whether that conclusion was reasonably open.[11]
In unfair dismissal appeals, if the error that is alleged is an error of fact, then the appellant must demonstrate that it is a significant error of fact.[12] An error of fact can exist where the Commission makes a decision that is ‘contrary to the overwhelming weight of the evidence’.[13] In considering whether there has been an error of fact, the Commission will consider whether the conclusion reached was reasonably open on the facts.[14]
Full Bench cannot change or interfere with the original decision
If the conclusion was reasonably open on the facts, then the Full Bench cannot change or interfere with the original unfair dismissal decision.[15] It is not enough to show that the Full Bench would have arrived at a different conclusion to that of the original decision maker.[16] The Full Bench may only intervene if it can be demonstrated that some error has been made in exercising the powers of the Commission.[17]
There must be a legitimate reason for the appeal
Pursuant to the High Court’s decision in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[18] there needs to be a legitimate reason for the appeal as the Full Bench may only exercise its power if it identifies some error on the part of the primary decision-maker. Significantly, it is not enough that the Full Bench of the Fair Work Commission may have merely reached a different conclusion to that reached by the primary decision maker.
In House v The King,[19] the High Court of Australia listed the following as legitimate grounds of appeal:[20]
- that the primary decision maker acted upon a wrong principle;
- the primary decision maker had been guided by irrelevant factors;
- that the primary decision maker had mistaken the facts; or
- that the primary decision maker had failed to take some material consideration into account.
The Full Bench of the Fair Work Commission may also intervene in circumstances where the decision was unreasonable or plainly unjust.
If my appeal is granted, what can the Full Bench do?
If permission to appeal is granted, the Full Bench of the Fair Work Commission may do any of the following in relation to the appeal:
- confirm, quash (suppress) or vary the decision
- make a further decision in relation to the matter that is being appealed
- refer the matter being appealed to a Commission Member for further action.
Unfair Dismissal How Do I Appeal A Decision?
I hope the article on Unfair Dismissal, How Do I Appeal A Decision? has been helpful for you. We are a Whole New Approach, leaders in workplace and Fair work Australia matters. We are not lawyers. Any unfair dismissal, that you want to appeal give us a call, we ‘mind looking at your situation and giving free advice 1800 333 666. Be aware there are strict timelines to lodge an unfair dismissal claim and the appeal process. Our pages on unfair dismissals may be helpful.
We experts in the areas of abandonment of employment, probation period matters, workplace investigations, workers rights, being sacked All states, including, Victoria, NSW, QLD, Tas, SA, WA, NT
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Citations
[1] Fair Work Act 2009 (Cth) s.604(1).
[2] See for example Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo [2015] FWCFB 7090 (Watson VP, Kovacic DP, Roe C, 27 October 2015).
[3] Fair Work Commission Rules r 56(2)(a)‒(b).
[4] Fair Work Commission Rules r 56(2)(c).
[5] FW Act 2009 (Cth) s.604(2).
[6] Fair Work Act 2009 (Cth) s.400(1).
[7] Fair Work Act 2009 (Cth) s.400(2).
[8] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 (19 April 2011) at para. 44, [(2011) 192 FCR 78].
[9] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 (Kaufman SDP, Ives DP, Spencer C, 23 July 2010) at para. 27, [(2010) 197 IR 266].
[10] See for example Qantas Airways Limited v Carter [2012] FWAFB 5776 (Harrison SDP, Richards SDP, Blair C, 17 July 2012) at para. 57, [(2012) 223 IR 177]; Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 (Catanzariti VP, Watson VP, Gostencnik DP, 22 May 2015); Harris v Home Theatre Group Pty Ltd T/A Home Theatre Group [2011] FWA 2910 (Asbury C, 12 May 2011) at para. 18.
[11] SPC Ardmona Operations Ltd v Esam PR957497 (AIRCFB, Ross VP, Hamilton DP, Hingley C, 20 April 2005) at para. 40, [(2005) 141 IR 338].
[12] Fair Work Act 2009 (Cth) s.400(2).
[13] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, at pp. 155‒156.
[14] SPC Ardmona Operations Ltd v Esam PR957497 (AIRCFB, Ross VP, Hamilton DP, Hingley C, 20 April 2005) at para. 40, [(2005) 141 IR 338].
[15] House v The King [1936] HCA 40 (17 August 1936), [(1936) 55 CLR 499].
[16] Ibid.
[17] Ibid.
[18] (2000) 203 CLR 194.
[19] (1936) 55 CLR 499.
[20] Ibid at 505.
