An employer who dismissed a worker injured in a skydiving accident was granted permission to appeal based on an error of fact

Published 5 September 2016

The Fair Work Commission allowed an application to appeal a decision against Lion Diary and Drinks Milk Limited after they dismissed an injured worker. The Commission believed it was in the public’s interest to grant permission to appeal as the Deputy President may have made an error of fact.

In 2015, Mr Norman made an application for unfair dismissal remedy after his employment was terminated by Lion Diary and Drinks Milk Limited (Lion).

Mr Norman had sustained an injury while skydiving and Lion believed he would be unable to perform the requirements of his position due to this injury.

In February 2016, Deputy President Bartel ruled in favour of Mr Norman and found Lion had unfairly dismissed Mr Norman as he could still fulfil the requirements of his position.

Lion appealed the decision, believing the Deputy President had made a number of errors, both of fact and law, and it would be in the public interest to grant permission to appeal.

Lion claimed the Deputy President considered extraneous materials, failed to consider material consideration and made significant errors of fact.

The Commission considered the requirements for granting an appeal from decision made by the FWA. These requirements stated permission to appeal could only be granted if it was in the public interest and a significant error existed in regards to an appeal on a question of fact.

The Commission ruled that there was a potential error of fact as the Deputy President had accepted one testimony over another based on evidence not open to the Deputy President. This potential error led to the decision that Mr Norman was capable of performing his duties. As such, the Commission ruled it was in the public interest to grant permission to appeal because the potential error was fundamental to the decision. Permission was granted to appeal based on an error of fact.

However, the Commission ruled permission should not be granted to appeal based on an error of law because it was not in the public interest.

Read the full decision here

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