Fair Work Commission

Admin File Number:    PF/11/8

Matter reviewed: [2011] FWAFB 7548

Summary

O’Callaghan SDP, Hamilton DP and Roe C

TERMINATION OF EMPLOYMENT – extension of time – exceptional circumstances - misconduct – ss.394, 604 Fair Work Act – appeal – Full Bench – decision at first instance refused to extend time for late unfair dismissal application (or in alternative found there was valid reason for termination based on gross misconduct) - appeal by former employee – original application lodged late due to erroneously sending application to Fair Work Ombudsman – findings in initial proceedings upheld – no public interest – leave to appeal refused – appeal dismissed.

Court summary

PRACTICE AND PROCEDURE – procedural fairness – appeal against refusal by Fair Work Australia Full Bench to adjourn appeal hearing – plaintiff’s counsel unable to attend hearing – whether refusing adjournment breached rules of natural justice – whether jurisdictional error – whether writs of certiorari and mandamus available and appropriate – basic question whether plaintiff was denied reasonable opportunity to put his side of the story – given that plaintiff’s application for adjournment made well before date of hearing, remote chance of anyone appearing at hearing and notice of fresh evidence being led, refusal of adjournment constituted denial of natural justice – since s.604 of Fair Work Act requires hearing to be fairly conducted, Fair Work Australia fell into jurisdictional error – writs issued – original orders quashed – plaintiff’s application to be determined by differently constituted tribunal.

Judgment 11 March 2012 - Orders made by Full Bench on 8 November should be quashed and matter should be reconsidered by differently constituted Full Bench.

Order 22 March 2012 quashing the orders and decision of Fair Work Australia made on 8 November 2011: [2012] FCA 267.

Order amending name of First Respondent 22 March 2012.

Status

Closed.