Appealing an unfair dismissal decision? You have no guarantee of success, new Fair Work ruling shows

A hospital has now lost an unfair dismissal case twice, even as it appealed the original decision, in a case which demonstrates why small businesses must think carefully before challenging a Fair Work Commission ruling.

The decision is made more unusual by the fact the commission identified errors in the original ruling, which were in the hospital’s favour, but still ultimately ruled its employee had been unfairly dismissed.

Mark Colson was dismissed from Barwon Health in May 2012 for alleged “serious misconduct”.

In the original ruling, the Fair Work Commission found that although Colson had engaged in misconduct, his termination was unfair. He was ordered to be reinstated to his job due to a “sufficient level of cooperation for a proper working relationship”.

Both parties appealed the decision. Colson wanted back-pay for lost remuneration, and Barwon Health wanted the original ruling overturned.

But the commission has once again ruled in Colson’s favour, saying that while the Commissioner “made significant errors of fact”, Colson was still unfairly dismissed.

While it’s not unusual for businesses to appeal Fair Work decisions and lose them, the case is a good lesson for SMEs – appealing a decision requires a degree of certainty about the case, solid legal advice and an understanding there may not be a satisfactory outcome.

Rachel Drew, partner at TressCox Lawyers, told SmartCompany this morning it’s common for appeal courts to correct errors made in the original decision, but still come to the same decision overall.

“They may come to the same outcome for different reasons, or may find the original decision was made on an incorrect basis,” she says.

“It’s a risk. Any appeal carries with it a risk that even though you may be right about the decision, the ultimate outcome may simply remain the same.”

Drew says businesses need to ensure they receive solid advice when pursing an appeal – but they also need to understand there is no certainty of success.

“There are risks in every legal proceeding at every level,” she says. “It’s just something you have to accept.”


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