Full Bench grants leave to appeal on General Protections claim denied procedural fairness

Full Bench grants leave to appeal on General Protections claim denied procedural fairness

A Full Bench of the Fair Work Commission has granted an appeal by an employee who claimed that his former employer had taken adverse action against him after he raised several queries that ultimately led to the termination of his employment contract.  In their determination, they concluded that the initial Commissioner had failed to address a key issue in the original decision.

The case involved a Plumber/Gasfitter, Mr B, who was engaged by the Bawinanga Aboriginal Corporation (BAC), a not-for-profit Aboriginal Corporation based in Maningrida, a remote Aboriginal community located approximately 500 kilometres east of Darwin.

Mr B was employed on a full-time basis on a fixed-term contract; however, the parties disputed whether the length of the contract was for a one or two-year period.

Mr B claimed that BAC took adverse action against him after he made various workplace enquiries relating to payment for working on public holidays, the potential for a pay rise, and ultimately the termination of his employment on 25 October 2019.

The contract that he was offered was for a two-year period; however, BAC claimed that he had initialled and signed the contract making an adjustment to one year’s duration, which he disputed.

In the initial decision, Commissioner Paula Spencer accepted BAC’s argument that the contract ultimately was agreed on the basis of a one-year period, largely due to the annotations made to the contract, and that it expired through the effluxion of time.  As she noted, “The Applicant (Mr B) has not provided supporting evidence in relation to a two year contract”.

The Commissioner determined that BAC had not taken adverse action against Mr B in relation to the various allegations of contraventions of workplace entitlements that he claimed.

However, as highlighted in the appeal decision of the Full Bench, comprising Vice President Catanzariti, Deputy President Cross, and Commissioner Ryan, Commissioner Spencer crucially did not determine whether, in fact, Mr B had been dismissed at the initiative of his employer.

As they noted,

“The determination of whether a dismissal had occurred was a key jurisdictional fact that had to be determined before the Application could be entertained.  The Commissioner did not satisfactorily undertake that task, and subsequently, when expressing ‘conclusions’, outlined such conclusions without expressing reasons for the formation of those conclusions.  The Appellant was denied procedural fairness and deprived the possibility of a successful outcome”.

The Full Bench also determined that Commissioner Spencer failed to provide adequate reasons for her decisions and consequently did not afford procedural fairness to the parties in the matter.

Consequently, the Full Bench upheld the appeal and will allocate the matter to another Member for re-determination.

Mr B v Bawinanga Aboriginal Corporation [2022] FWCFB 1 (5 January 2022)

For queries about employment contracts, adverse action, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law.  It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues.  Liability limited by a scheme approved under professional standards legislation.

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