Bellambi Bowling Recreation and Sports Club Ltd v Grammel

JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 10 December 2004

Matter No IRC04/7077 Kelso Builders Supplies Pty Ltd and Wei Hua Huang

Application by Kelso Builders Supplies Pty Ltd for leave to appeal and appeal against a decision of Commissioner McLeay given on 19.11.2004 in matter no. IRC 3607 of 2004 DECISION [2004] NSWIRComm 388

1 Kelso Builders Supplies Pty Ltd ('the appellant') has sought leave to appeal and, if leave be granted, appeal against a decision and orders of McLeay C, given on 19 November 2004 in IRC04/3607. The appeal was filed on 3 December 2004 pursuant to ss187 and 188 of the Industrial Relations Act 1996 ('the Act'). In an attached letter to the application for leave to appeal and appeal, (Form 28) the appellant sought a stay of the Commissioner's decision. This decision deals with that application.

2 Section 190 of the Act deals with the powers of the Commission to stay a decision pending a determination of an appeal. 190 Stay of decision appealed against If an appeal is made under this Part to a Full Bench of the Commission, the Full Bench or the Commission constituted by a Presidential Member may, on such terms as it considers appropriate, order that the decision concerned be wholly or partly stayed pending determination of the appeal or until further order of the Full Bench or Commission.

3 Before considering the relevant principles which apply to stay applications it is necessary to give a brief outline of the Commissioner's decision at first instance.

4 Firstly, I note that both parties were unrepresented in the proceedings before the Commissioner and in these proceedings. Mr Wei Hua Huang ('the respondent on appeal) was provided with a Court appointed interpreter.

5 The respondent had lodged an application, pursuant to s84 of the Act, alleging that he was unfairly dismissed from his position as a truck driver on 28 May 2004. It was the appellant's case below that the respondent had resigned and had misused the Commission to try and achieve additional payments to which he was not entitled.

6 The Commissioner recorded the events preceding the respondent's termination and noted that the respondent had been consistently seeking payment for working overtime. The appellant initially refused to pay the respondent for the overtime. When he was not paid, the respondent was upset and threatened to go to the Union and the Industrial Relations Commission. The appellant alleged that he had said, "I will leave I don't want this job."

7 Subsequently, after discussion with an official of the Transport Workers' Union the appellant reluctantly made a payment of $1562.20. This was subsequently reduced to $176 after deduction for an overpayment.

8 As to whether the respondent willingly resigned, the Commissioner said at para 19 of her decision: I am satisfied on the evidence of the respondent's witnesses that Mr Huang used words similar to those quoted by Mr Ovchinnikov, and by Mr Govender who overheard the conversation, to the effect that he was leaveing the job, demanding that he be paid his money. However, considering that he had been repeatedly refused payment that he was entitled to receive, I find that the termination was by way of a constructive dismissal. It was harsh to deny him payment to which he was entitled. It was unreasonable to expect him to work under conditions amounting to somewhat less that what was set out in the award. The particular problems faced by the respondent in regard to Mr Huang's work performance should have been dealt with by other, more appropriate, methods, rather than by refusal to pay.

9 It is to be observed that the Commissioner was not uncritical of the respondent's conduct. She said at para 22: Having studied all of the evidence before me, I have formed the view that Mr Huang's demands were excessive. He had harassed the administrative staff unfairly. He had not accepted that he was being paid under the correct award. In addition, there were problems with his work performance which he had not rectified. He was frequently late; he had told a client to help himself to goods from the truck; he had returned to the depot with undelivered goods. In evidence he offered excuses which proved to be unfounded, such as inadequate labelling of goods for delivery, or he denied behaviour such as yelling at the administrative staff. These excuses and denials proved, on the evidence, to be unfounded. Mr Huang showed no signs of improving or any willingness to accept responsibility for his performance.

10 The Commissioner then concluded: I find that the termination of the applicant's employment was a constructive dismissal, that is, the applicant had no choice but to resign when the respondent refused to pay him money that was due to him under the Transport Industry Retail (State) Award . I am satisfied that the constructive dismissal was harsh and unjust. It follows from this decision that the respondent's application for costs must fail. In determining an order for compensation, I have considered all of the evidence before me. I have formed the view that, if the issue of payment had been resolved, the applicant could then have been dismissed on the grounds of his poor performance. I note that Mr Huang continued to argue throughout the proceedings that the witnesses were lying about a whole range of matters, and that he was being paid under the wrong award. I do not accept that he would have settled into a pattern of satisfactory work performance just because the overtime issue was resolved. The intervention by the union occurred within a week of the termination, when the respondent acknowledged he owed money and made an offer of payment to Mr Huang. A dismissal could have occurred shortly thereafter on the grounds of Mr Huang's continuing inappropriate conduct and poor performance. Accordingly, I make the following orders. ORDERS 1. I order the respondent to pay to Wei Hua Huang an amount of $1260, being 2 weeks' wages at the rate of $630. 2. The amount of compensation specified in order 1 is to be paid by the respondent within 21 days of the date that these orders take effect. 3. These orders take effect from today, 19 November 2004.

11 In the proceedings before the Commission today, Mr M Friggieri for the appellant, submitted that the company believed the Commissioner's decision was wrong in two respects. Firstly, that the Commissioner applied the incorrect award rate when determining the orders she made. Secondly, that the decision failed to properly take account of the evidence that the applicant had resigned on a false premise, in that he wrongly believed he was entitled to overtime. Moreover, the appellant claimed the respondent had engaged in theft of the company's time.

12 In reply, Mr Huang simply put that he hoped the truth would all come out when the appeal was heard.

13 I turn now to the principles applying to determining an application for a stay upon an appeal brought pursuant to s190 of the Act.

14 In State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131, the Full Bench of the Commission in Court Session said: The facility of a stay of a challenged decision, in whole or in part, is afforded by s 190 of the Industrial Relations Act . The principles on which a stay is allowed have been often stated - in short, a sufficient reason needs to be shown to delay the decision made at first instance from being effective pending the determination of the appeal: see Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685 and Water Industry Salaried Officers' Union v Professional Officers' Association of New South Wales [1987] 22 IR 178. As was observed by the Full Commission ( Fisher P, Hungerford J and Buckley CC) of the former Commission in Professional Officers' Association of New South Wales v New South Wales Teachers' Federation [1993] 50 IR 404 at 404: Shortly stated the approach in considering a stay application is that the appellant is required to demonstrate reasons to warrant the exercise of discretion in his favour. Specifically unlike the former position, an appellant is not now required to establish special or exceptional circumstances to warrant the imposition of a stay. The question then is whether the appellant has established or demonstrated reasons supporting an appropriate case for a stay. In the result in that case, the Full Commission considered the circumstances in terms of the balance of convenience as favouring a stay and said (at p 405) that "if a stay were not granted however then a series of applications drastically affecting the rights of industrial parties to represent the interests of their members or potential members would produce major consequences and may indeed have subsequently to be unravelled".

15 His Honour Walton, V.P, in Campbells Cash and Carry Pty Limited and National Union of Workers, New South Wales Branch (2001) 104 IR 400, adopted the conclusions of the Full Bench as set out above and said at para 63 -65: 63 The filing of an appeal per se does not provide a sufficient basis for the grant of a stay. The determination of whether a stay will be granted involves an exercise of the discretion of the Commission. Having regard to the discussion of the foregoing principles, the question is whether the appellant has demonstrated a proper basis for the grant of an application for a stay. In other words, the question is whether the applicant for a stay has demonstrated an adequate reason for, or an appropriate case to warrant, the exercise of the Commission's discretion to grant a stay of the decision at first instance. 64 In the exercise of that discretion, the Commission will have regard to a variety of considerations, including the balance of convenience and the competing rights of the parties. In this matter, it is also appropriate to have regard, in a preliminary way, to the appellant's prospects of success. Both counsel argued the prospects of success of the appeal in relation to the application for a stay. The issues in the appeal proper are of narrow compass. It would also appear necessary to consider the prospects of success in order to properly assess the balance of convenience. 65 The assessment of the Commission as to the prospects for success of the appeal must be necessarily preliminary. The Commission has not heard the appellant upon the question of leave to appeal and some grounds of the appeal were not fully developed. In these circumstances, I do not propose to come to any view as to the question of leave and make a purely preliminary assessment as to the strength of the appellant's case on the appeal. See also Bellambi Bowling Recreation and Sports Club Ltd v Grammel (2001) 107 IR 104.

16 It is plain from the outlined grounds for appeal that the appellant rejects the Commissioner's findings as to the constructive dismissal of the respondent. The appellant also contends that the order of two weeks' wages was based on an incorrect calculation. As to this last contention, it would seem that if the figure was incorrectly calculated then a simple application of the "slip rule" could be made to correct the error.

17 I will firstly deal with the reasons advanced by the appellant in support of the stay application. The Commission invited Mr Friggieri on more than one occasion, to address the Commission on the stay application. Unfortunately, he merely reiterated the appellant's view that the Commissioner's decision was wrong and it should not be penalised for the result. It is obvious that these matters do not raise issues relevant to the grant of a stay application. Rather they are matters which, no doubt, will be properly agitated in the appeal itself. This has left the Commission with no basis advanced by the appellant as to why the stay of the decision should be granted.

18 That being said, I note that the amount ordered by the Commission was two weeks' pay, representing a sum of $1260.00. There was no suggestion that the respondent would not be in a position to pay back that amount in the event the appellant was successful. Indeed, one could not conceive how the refusal to grant a stay would in any material way, prejudice the appellant or the likelihood of its recovery of the amount, should its appeal be successful. Thus, I find that the balance of convenience does not favour the appellant.

19 I have also had regard for the appellant's prospects of success on leave to appeal and appeal. In my preliminary opinion, it would appear from the nature of the Commissioner's decision, her criticism of the respondent and the modest orders made, that the appeal would be unlikely to attract the necessary public interest considerations by which leave to appeal would be granted, see s188(2) of the Act. However, I emphasize that I have formed no concluded view of the appellant's prospects of success, particularly in the absence of the filing of all the necessary material relevant to the appeal proper.

20 Having regard for these aforementioned matters, I am not persuaded to grant a stay of McLeay C's decision and orders of 19 November 2004. The application is refused.

21 The parties will be advised in due course as to a listing of the application for leave to appeal and appeal.

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