Appeal bench unlikely to overturn findings of fact

Cases

Appeal bench unlikely to overturn findings of fact

In circumstances where a first instance decision depends upon findings of facts that are assessed at the Commission's discretion, a Full Bench of the Australian Industrial Relations Commission will be loathed to overturn findings of fact.

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In circumstances where a first instance decision depends upon findings of facts that are assessed at the Commission's discretion, a Full Bench of the Australian Industrial Relations Commission will be loathed to overturn findings of fact. An appeal bench will only intervene where it is clear that the findings are not reasonably open on the evidence and material before the Commission. (Beck v Castran Gilbert Real Estate Pty Ltd, Print S4014, [2000] 256 IRCommA, 14 March 2000).

Appealing against the decision of Tolley C in which an application for relief in respect of the termination of his employment was dismissed, the former salesman claimed that he did not resign but was terminated at the initiative of the employer.

Background

The termination stemmed from a disagreement between the appellant and another employee. After which the appellant was informed by one of the principals of the agency that his conduct was unacceptable. It is at this point that the facts are disputed. The former employee claimed that he was terminated at the initiative of the employer, while the employer maintained that the employee resigned.

The grounds of appeal centred on the claim that the Commissioner dismissed the first instance application without turning his mind to the question of whether the termination was nevertheless at the initiative of the employer. In like manner, it was claimed that it was not reasonably open to the Commissioner to conclude that the appellant resigned.

Decision

The Full Bench headed up by Giudice P acknowledged that there was a serious inconsistency between the evidence of the employer and employee. Faced with this dilemma the Commissioner at first instance concluded that the employee had resigned of his own accord. Having perused the witness statements and the transcript of proceedings at first instance, the Full Bench concluded that there was nothing to suggest that the Commissioner made any error of fact or law which might justify intervention. According to the Full Bench, 

...this was an every day case of a Member being required to weigh evidence, consider the demeanour of the witnesses and the submissions and reach a conclusion about whose version of events should be accepted. An appeal bench will normally be reluctant to question factual findings and will only intervene where it is clear that findings are not reasonably open on the evidence and material before the Commission.

The Full Bench declined to grant leave to appeal.

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