Pawel v Australian Industrial Relations Commission [1999] FCA 1660

Pawel v Australian Industrial Relations Commission [1999] FCA 1660

The Full Bench of the Australian Industrial Relations Commission misdirected itself as to the proper approach to the application for leave to appeal by treating the determination of jurisdictional fact as a matter of whether the Commissioner’s conclusion was reasonably open to him, rather than determining for itself whether the jurisdictional fact (termination at the initiative of the employer) existed; this was an error of law justifying the grant of certiorari and mandamus.

Parties
Applicant: Karl Pawel; First Respondent: Australian Industrial Relations Commission constituted by Senior Deputy President Polites, Senior Deputy President Watson and Commissioner Gay (Full Bench); Second Respondent: Freshmore Pty Ltd (ACN: 052-013-439)
Jurisdiction
Australia
Judgment Date
10 December 1999
Procedural Posture
Application for Prerogative Relief (certiorari and Mandamus) / Final Orders on Remittal From High Court—federal Court Judgment
Outcome
Application allowed. Writs of certiorari and mandamus issued. Decision of the Full Bench of the Commission quashed. Matter remitted for re-determination.
Legal Topics
Unlawful Termination, Jurisdictional Fact, Certiorari, Mandamus, Approach to Leave to Appeal, Termination at the Initiative of the Employer
Industrial Law Administrative Law Unlawful Termination Jurisdictional Fact Certiorari Mandamus Approach to Leave to Appeal Termination at the Initiative of the Employer

Case Brief

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Parties

Karl Pawel

Applicant

Australian Industrial Relations Commission constituted by Senior Deputy President Polites, Senior Deputy President Watson and Commissioner Gay (Full Bench)

First Respondent

Freshmore Pty Ltd (ACN: 052-013-439)

Second Respondent

Procedural Posture

Application for Prerogative Relief (certiorari and Mandamus) / Final Orders on Remittal From High Court—federal Court Judgment

Legal Issues

  1. 1 Whether the Full Bench of the Australian Industrial Relations Commission erred in law in refusing leave to appeal from a decision determining that the applicant’s employment was not terminated at the initiative of the employer within the meaning of s 170CE(1) of the Workplace Relations Act 1996 (Cth)
  2. 2 Whether the Commission applied the correct legal test for 'termination at the initiative of the employer'
  3. 3 Whether prerogative relief (certiorari and mandamus) should be granted to quash the refusal of leave to appeal

Ratio Decidendi

The Full Bench of the Australian Industrial Relations Commission misdirected itself as to the proper approach to the application for leave to appeal by treating the determination of jurisdictional fact as a matter of whether the Commissioner’s conclusion was reasonably open to him, rather than determining for itself whether the jurisdictional fact (termination at the initiative of the employer) existed; this was an error of law justifying the grant of certiorari and mandamus.

Court Disposition

Application allowed. Writs of certiorari and mandamus issued. Decision of the Full Bench of the Commission quashed. Matter remitted for re-determination.

Orders

  • A writ of certiorari issue to the Australian Industrial Relations Commission, removing into the Court and quashing the decision of the Full Bench of the Commission dated 4 September 1998 in matter no C33992/98.
  • A writ of mandamus issue to the Australian Industrial Relations Commission, directing it to hear and determine matter no C33992/98 in accordance with law.