s.604 - Appeal of decisions

Appeal against decision [2025] FWC 2686 of Commissioner Sloan at Sydney on 11 September 2025 in matter number U2025/3120 - Stay application - Stay sought against order for payment of compensation - Stay application refused.

• [1] This is an application for a stay of orders made by a member of the Commission pending appeal. The decision under appeal arose from an unfair dismissal application brought by Anthony Mutton.[1] Mr Mutton was employed by Artisan Pools as a Construction Manager from 2023 until he was summarily dismissed on 24 February 2025. Mr Mutton applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). The application was dealt with by Commissioner Sloan.

• [2] The Commissioner recorded that there were, in substance, three grounds given for the dismissal: first, that Mr Mutton had stated to Ms Fields that he knew of three pools that would "fail" without disclosing the sites he was referring to; second, that Mr Mutton had refused to attend a meeting with Mr Vidler on 6 February 2025; third, that Mr Mutton had deliberately sabotaged pools on which he had been working. In short, the Commissioner found that the dismissal did not comply with the Small Business Fair Dismissal Code because there were not reasonable grounds for Artisan Pools to believe that Mr Mutton had engaged in conduct that was sufficiently serious to justify immediate dismissal. The Commissioner further found that there was not a valid reason for dismissal. In particular, the Commissioner found there was no evidence to support the most serious allegation that Mr Mutton had deliberately sabotaged pools he had been working on. Taking into account the other factors listed in s 387, the Commissioner was satisfied that the dismissal was harsh, unjust and unreasonable.

• [3] The Commissioner accepted that reinstatement was inappropriate in light of the relationship between the parties but found that it was appropriate to order a payment of compensation in lieu of reinstatement. The Commissioner applied the approach in Sprigg v Paul's Licensed Supermarket [1998] AIRC 989; (1998) 88 IR 21 and determined that Artisan Pools should pay Mr Mutton $15,384.64 as compensation in lieu of dismissal less applicable taxation plus 12 per cent superannuation. The order is required to be complied with by 9 October 2025.

• [4] Artisan Pools filed a notice of appeal on 1 October 2025. In the notice of appeal, it seeks a stay of the order made by the Commissioner with respect to the payment of compensation. The power to grant a stay pending the hearing and determination of an appeal lodged under s 604 is contained in s 606(1) of the Act, which provides:

(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

• [5] A commonly cited formulation of the principles applicable to the grant of a stay is found in Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 in which Ross VP (as his Honour then was) said:[2]

In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

• [6] The usual principle applied by the courts, when considering an application for a stay pending appeal, is that "a successful party is entitled to the fruits of his judgment" and there must be "sound reasons" to justify a suspension of that right.[3]

• [7] It is necessary to first consider whether Artisan Pools has an arguable case, with some reasonable prospects of success, in respect of both the question of permission to appeal and the substantive merits of the appeal. In considering a stay application, it is not possible to engage in a detailed consideration of the merits of an appeal. The Commission will not conduct a summary hearing of the appeal, and the grounds will ordinarily be considered on their face and examined only at an impressionistic level.[4] It is appropriate only to consider the strength of an appeal as a preliminary assessment for the purpose of assessing the balance of convenience and fairness to the parties.[5]

• [8] The notice of appeal contains four grounds. Primary emphasis appears to be given to the first ground. The first ground is that Mr Mutton submitted falsified evidence in the proceedings in the form of Exhibit R1 which I understand was said to record an exchange of text messages. It is difficult for me to comment on the question of the authenticity of the exhibit. Artisan Pools has foreshadowed that it intends to obtain a forensic analysis of the communications and, as I understood it, to rely upon further evidence on appeal in relation to that question. However, I have some doubts about the strength of the appeal ground. The notice of appeal acknowledges that the document was not central to the events leading to the termination of Mr Mutton's employment. The document does not appear to have been mentioned in the decision of the Commissioner. The ground also seems to assume that the Commissioner was required to address the issue because s 678 of the Act makes it an offence to give false or misleading evidence in proceedings before the Commission. If an offence under that section occurs, it must be prosecuted in an appropriate court and not in Commission proceedings. It is also said that the issue was relevant to credibility. However, the ground does not identify any issue which was decided by the Commissioner on the basis of a credibility finding.

• [9] The second ground is that the Commissioner made a factual error in failing to find misconduct in relation to the alleged failure of Mr Mutton to comply with lawful and reasonable directions to attend a meeting and not to pour concrete on a particular job. In unfair dismissal proceedings, s 400(2) of the Act only permits an appeal to be brought on a question of fact if it is made on the ground that the decision involved a "significant error of fact". I accept that, if the Commissioner's factual findings in that respect were erroneous, that would constitute a significant error of fact. For obvious reasons, I cannot judge the merits of the ground in the absence of the opportunity to consider the evidence in any detail. I am willing to accept that, on the information available to me, the ground may be arguable. It may be doubtful that the Commission will consider that it is in the public interest to grant permission to appeal to reconsider the factual findings made by the Commissioner. However, that will be a matter for the Full Bench ultimately considering the matter.

• [10] The third ground is that Artisan Pools was denied procedural fairness by reason of the failure of Mr Mutton and the Commissioner to cross-examine a witness called by it in the proceedings, Ms Fields. On the information available to me, it is difficult to understand the ground. I am unable to detect any finding made by the Commissioner which contradicted evidence given by Ms Field. In those circumstances, it is unclear how a denial of procedural fairness could have occurred.

• [11] The fourth ground is related to the first. It is that the Commissioner failed to consider Mr Mutton's conduct in relation to the allegedly falsified document in relation to compensation for the purposes of s 392(3). The ground appears to proceed on a misunderstanding of s 392(3) which relates to misconduct during employment which contributed to the employer's decision to dismiss the employee. The alleged falsification of exhibit R1 occurred (if it did occur) after the termination of Mr Mutton's employment.

• [12] Based on a preliminary and necessarily superficial assessment, the errors sought to be identified in the decision of the Commissioner in the notice of appeal face some challenges and I do not presently believe the appeal is strong either in relation to the question of permission to appeal or the merits of the appeal. However, in the circumstances, it is appropriate to approach the stay application on the basis that Artisan Pools has an arguable case on appeal but not a strong one.

• [13] It is necessary then to consider the balance of convenience. Artian Pools seeks a stay on the basis that if the compensation amount is paid now and the appeal is successful, there is a significant risk that recovery of the sum from Mr Mutton will be difficult or impossible. Mr Vidler also informed me that Artisan Pools is not a large business, and the payment would have an effect upon it. Having considered the material before me, I am not satisfied that the balance of convenience favours granting a stay.

• [14] If the compensation sum is paid now and the appeal is successful, Mr Mutton will be required to repay the compensation amount. For the reasons that I gave in Polymaster Pty Ltd v Gunn [2024] FWC 2249 (and the authorities referred to therein), I do not consider that this circumstance favours a stay being granted unless there is some evidentiary foundation for a conclusion that, if the appeal is successful, Artian Pools would not be able to recover the money paid to Mr Mutton.[6] There is no evidence before me to suggest that is the case. Although the relationship between the parties appears not to have been good at the end of the employment or during the proceedings at first instance, I am not willing to simply infer that Mr Mutton would not repay the compensation sum if the appeal is successful.

• [15] Finally, it is apparent from the decision at first instance that Artisan Pools is a small business. However, there is no evidence before me in relation to the financial position of the company. There is no basis upon which I could find that the payment of $15,384.64 plus superannuation will produce immediate financial difficulty for the company. I also do not have evidence before me in relation to Mr Mutton's financial position. I infer from the fact that he was summarily dismissed by Artisan Pools that Mr Mutton must have experienced some period of unemployment at least and some financial hardship. The Commissioner recorded in his decision that, at the time of the hearing at first instance, Mr Mutton was yet to commence new employment. That consideration favours refusing the application for a stay.

• [16] For these reasons, the application for a stay is refused.

[1] Mutton v Artisan Pools Pty T/A Northern Rivers Pools [2025] FWC 2686.

[2] Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 at [5].

[3] McBride v Sandland (No 2) [1918] HCA 59; (1918) 25 CLR 369 at 374; Philip Morris (Australia) Pty Ltd v Nixon [1999] FCA 1821 at [17].

[4] See, for example, Commonwealth Bank of Australia v Roskott (No 2) [2014] NSWSC 1093 at [35] (Garling J); Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCA 41 at [8] (Perry J).

[5] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; Burgess v Mount Thorley Operations Pty Ltd [2002] NSWIRComm 290; (2002) 119 IR 52 at [22].

[6] Polymaster Pty Ltd v Gunn [2024] FWC 2249 at [17]- [22].

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