Bellambi Bowling Recreation & Sports Club Ltd v Grammel

Industrial Relations Commission (NSW)|1999-01-29|Before: Walton J, Peterson J, Hungerford J, Mr P, Ms P, Ms J

CITATION : Bellambi Bowling Recreation & Sports Club Ltd v Grammel [2001] NSWIRComm 173 APPELLANT: Bellambi Bowling Recreation & Sports Club Ltd PARTIES : RESPONDENT: Kitty Grammel FILE NUMBER: IRC 3903 of 2001 CORAM: Walton J Vice-President CATCHWORDS : Appeal - Unfair dismissal proceedings - First instance orders to reinstate and pay certain monies - Application for stay of orders at first instance - Financial position of the respondent and attempts to resume employment after orders made - General principles regarding the grant of a stay in appeal proceedings - Consideration of prospects for success of appeal - Appeal arguable but with real difficulties - Relevance of prospects of success to stay of reinstatement order - Issue of size of club and casual nature of employment - Balance of convenience - Prospects of appeal significant to consideration of balance of convenience - Financial difficulties of respondent - Failure to put to respondent that she could not repay - Relevant that stay affects respondents financial position - Stay granted on terms LEGISLATION CITED : Industrial Relations Act 1996 Alexander and others v Cambridge Credit Corporation Ltd (Receivers Appointed) and another (1985) 2 NSWLR 685 Bankstown City Council v Paris (unreported, Peterson J, Matter No IRC262 of 1999, 29 January 1999) Bechtel Australia Pty Ltd and G Willis [Print T4974, 22/12/00] CASES CITED : Campbells Cash and Carry Pty Limited v National Union of Workers, New South Wales Branch [2001] NSWIRComm 79 Kellow-Falkiner Motors Pty Ltd and Edghill [Print S4216, 24/01/01] Rich River Golf Club v Power [1995] NSWIRComm 75 Transport Industry - Waste Collection and Recycling (State) Award Re (2000) 102 IR 192 Transport Industry (Courier & Taxi Truck) Contract Determination Re (unreported, Hungerford J, Matter No IRC2533 of 1992, 21 December 1992) HEARING DATES: 06/15/2001; 06/20/2001 DATE OF JUDGMENT: 07/26/2001

APPELLANT: Mr P Coleman of counsel Mr D Graham Workwise Management Pty Limited

LEGAL REPRESENTATIVES: RESPONDENT: Ms P Lowson of counsel SOLICITOR: Ms J Wright Jones Staff & Co. Solicitors

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, VICE-PRESIDENT 26 JULY 2001

BELLAMBI BOWLING RECREATION & SPORTS CLUB LIMITED AND KITTY GRAMMEL.

Application for leave to appeal and appeal against a decision of Commissioner Connor given on 25 May 2001 in Matter No IRC4216 of 2000.

1 On 12 June 2001, Bellambi Bowling Recreation & Sports Club Limited ("the appellant") lodged an application for leave to appeal and, if granted, appeal against a decision of Connor C given on 25 May 2001 whereby Kitty Grammel ("the respondent") was reinstated in employment with the appellant and certain sums of money were ordered to be paid to her. This decision concerns an application made by the appellant for a stay of that decision.

2 The Commissioner found that the respondent's services as a casual bar/poker machine/keno attendant with the appellant were terminated on 11 August 2000, after four years of casual service. He set out the background to the respondent's dismissal, noting that during the 1999/2000 financial year, the appellant's management looked to ways of reducing labour costs. These new staffing levels and roster changes were the subject of other proceedings before the Commission under s130 of the Industrial Relations Act 1996 ("the Act"). The respondent was a witness in those proceedings.

3 The Commissioner found that the evidence demonstrated that the respondent's employment history seemed to be quite satisfactory until early 2000. Prior to that time, the appellant has been concerned with mistakes being made by all bar staff in their cash handling. From early 2000 the Commissioner observed that criticism had been directed specifically to the respondent. These criticisms coincided with the announcement of new working arrangements introduced by the appellant. The Commissioner stated that no evidence was forthcoming from other bar staff members to the effect that they had any real problems in working with the respondent.

4 Commissioner Connor noted that the appellant had sent correspondence to the respondent from January 2000 complaining of her work performance and other concerns relating to her handling of cash for the club. There was conflicting evidence brought before the Commissioner over an allegation concerning the respondent short-changing the club secretary on 27 April 2000. The Commissioner was inclined to accept the respondent's evidence over that of the appellant in that regard.

5 Connor C found that only one of the numerous letters from the appellant (a letter dated 28 January 2000) could be properly categorised as a warning for the purposes of s88(c) of the Act. He stated that other correspondence were "complaints" which did not provide any warnings to the respondent. He considered that some of the correspondence were simply circular letters forwarded to other bar staff. He considered that one warning received by the respondent over six months prior to her dismissal was not a particularly firm foundation for her dismissal.

6 An issue emerged before the Commissioner as to the operation of cl30 of the Club Employees (State) Award ("the award") in relation to the dismissal of the respondent. The appellant submitted that those provisions (which concerned dispute resolution procedures) did not apply to the respondent as she was a casual employee.

7 The Commissioner found cl30 of the award applied to both permanent and casual employees. He also found that the appellant had breached the terms of that clause of the award when it dismissed the respondent. He considered that the failure by the appellant to abide by those provisions when dismissing the respondent warranted the conclusion that the decision was harsh, unreasonable or unjust. In that respect, the Commissioner relied upon a decision of the Full Bench of the former Industrial Relations Commission of New South Wales in Rich River Golf Club v Power [1995] NSWIRComm 75.

8 The Commissioner also stated, having regard to the evidence, it was difficult to avoid the conclusion that, whilst the respondent's employment had been satisfactory for the first four years, she had "fallen foul" of the club secretary at a later time and for some reason was "being singled out and picked on by her [the club secretary] over every trivial indiscretion on her part".

9 Further, the Commissioner noted that the appellant continued to employ the respondent in what appeared to be fairly responsible work despite the appellant's stated concerns over her capabilities and the casual nature of her employment. He stated that the respondent should not have been responsible for a "lock-up" of the club on her own and was being employed beyond her level of skill and training and possibly her wage level.

10 The Commissioner found that the dismissal of the respondent was harsh, unjust or unreasonable.

11 As to the question of remedy, the Commissioner stated that he perceived some difficulties with the respondent resuming work at the club. However, he concluded: An employer should not be able to deny an unfairly dismissed employee the right to reinstatement or re-employment, the primary remedies under Part 6, by action designed to destroy the relationship of trust and confidence required in employment in an effort to make a resumption of work impracticable: Hollingsworth v Commissioner of Police (1999) 88 IR 282 at 341 and 342.

12 In the circumstances, Connor C made the following orders: 1. Bellambi Bowling, Recreation and Sports Club Limited shall: (a) Reinstate Mrs Kitty Grammel in employment on the casual roster she occupied prior to the termination of her services; (b) Pay the sum of $9000.00 to her within 21 days. 2. The period of employment of Mrs Grammel with the club shall not be taken to have been broken by the dismissal. 3. This order shall take effect on and from Friday, 25 May 2001.

The Application for Appeal 13 The grounds for the appeal as specified in the application for leave to appeal and appeal were as follows: 1. The decision is against the evidence and against the weight of evidence. Harsh Unreasonable or Unjust Dismissal 2. The Commissioner erred in finding that the dismissal of the applicant was harsh, unreasonable or unjust. 3. The Commissioner erred in finding that the dismissal was procedurally unfair. 4. The Commissioner erred in determining that the appellant had breached the terms of clause 30 of the Club Employees (State) Award.

The Commissioner erred in finding that clause 30 of the said award applied to the circumstances of the applicant, she being a casual employee. 6. The Commissioner erred in finding that the applicant was not sufficiently warned concerning her work performance. 7. The Commissioner erred in finding that communications between the appellant and the applicant did not amount to a warning of unsatisfactory performance pursuant to the considerations arising from section 88(c). 8. The Commissioner erred in finding that the dismissal was substantially unfair. 9. The Commissioner erred in finding that the applicant "fell foul" of the secretary manager and that the applicant was "singled out and picked on". 10. The Commissioner erred in failing to find that the applicant's work performance was unsatisfactory, sufficient to justify dismissal. 11. The Commissioner erred in finding that the applicant was assigned duties beyond her training or classification. Remedy 12. The Commissioner erred in ordering a remedy in all the circumstances of the case. 13. The Commissioner erred in failing to find that reinstatement was impracticable. 14. The Commissioner erred in failing to give appropriate consideration or weight to the evidence of the size of the appellant's operations, its operational requirements, its financial position and the relationship between the applicant and the secretary manager of the appellant. The exercise of discretion miscarried in that central evidence and considerations were disregarded or not considered. Section 89(3) - Lost Remuneration 15. The Commissioner erred in deciding to make an order under section 89(3) for the payment of $9,000. 16. No reasons are given for the discretionary decision and order made under section 98(3) as to either the reasons for making the order or its quantification.

The Commissioner erred in failing to give reasons. The failure to give reasons amounts to a denial of natural justice. Evidence 14 On 15 June 2001, Mr P Coleman of counsel, who appeared for the appellant on that occasion, sought leave to file an affidavit of Mr D Graham. Ms P Lowson of counsel, who appeared for the respondent, objected to the filing of the affidavit and advised that, in any event, she would require Mr Graham for cross-examination. Mr Graham was not available for cross-examination on that day. The matter was relisted for further hearing of the stay application on 20 June 2001.

15 When the matter came back before the Commission on 20 June 2001, Mr Graham appeared for the appellant. He sought to tender an affidavit sworn by him but after some private discussion with Ms Lowson he withdrew that tender. In the result, the appellant did not bring any other evidence as to the application for a stay.

16 Ms Lowson then called the respondent to give evidence. She was not cross-examined and, hence, her evidence is uncontested in the stay proceedings.

17 The evidence of the respondent was, in summary, as follows:

a. Prior to being dismissed by the appellant, Ms Grammel had been employed at the Bellambi Bowling Recreation & Sports Club working four to five shifts per week, with an average of three to four hours per shift. b. Her average gross wage from work at the club was $250 to $350 per week. c. Whilst she was working for the appellant she had obtained some other work as a cleaner at the Champion tavern. She worked approximately 15 hours per week at the Champion tavern and received approximately $15 as a gross hourly rate. She held both jobs for about five months prior to being dismissed by the appellant. d. For a short period, after having been dismissed by the appellant, the respondent was employed seven days per week at the Champion tavern whilst another employee was absent. However, that pattern of work thereafter changed with the respondent then working five days per week at the tavern. e. The respondent pays rent for her residence. Whilst she had two jobs the rate of rental she was paying was $120 per week. This continued until three months prior to the stay proceedings, that is around mid March. Since having lost one of her jobs she has managed to reduce the rent she pays to $65 per week.

f. The respondent gave evidence of having to adjust her spending patterns after her dismissal. This involved cutting down on shopping and decreasing her social activities.

g. Prior to her dismissal, the respondent had been able to spend money on her two grown children, in particular one whom had recently had a child. Since her dismissal the respondent had not been able to do this.

h. Whilst working both jobs the respondent had been able to save a little money "just as back up". Since the dismissal she has not been able to do this and, indeed, she borrowed some money.

18 The respondent also gave evidence of an attempt to recommence work with the appellant in accordance with the orders made by the Commissioner. The respondent, having been made aware of the decision and the orders made by the Commissioner on Friday, 25 May presented herself on the following Monday morning at the appellant's premises in order to recommence work. She was met by the club secretary, Mrs Morgan. The evidence as to the exchange between the respondent and Mrs Morgan was as follows: Q. And did you speak to Mrs Morgan? A. Yes, I did.

Q. What did you say? A. I said, "Marion, you got the transcript from the club you received. When do I start"?

Q. What did she say? A. She says "you are a phone in casual".

Q. "You are a phone in casual"? A. Yes.

Q. What did you say? A. I said "maybe I read it wrong". I said "see you later" and walked out. She did mumble something but I don't recall I was just in shock when she says a phone in casual.

Q. When you say you were in shock, why was that? A. Because I thought I had me job back, yeah. I was ready to start.

Q. Have you received any shifts from the club since that time? A. No.

Submissions The Appellant 19 Mr Graham contended, in his written submissions, that, in relation to an application for a stay, the Commission must: 6.2.2 be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal; and

6.2.3 consider that the balance of convenience weighs in favour of the order subject to appeal being stayed.

20 In regard to the balance of convenience test, Mr Graham relied on two decisions of the Australian Industrial Relations Commission. Firstly, he relied on a decision of the Full Bench of the Australian Industrial Relations Commission in the matter of Kellow-Falkiner Motors Pty Ltd and Edghill [Print S4216, 24/01/01], where the Full Bench stated at [4]): In this case the Vice President set out the principles which he intended to apply in the following passage: In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect 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. ...

21 He also relied on a decision of Vice-President Ross of the Australian Industrial Relations Commission in the matter of Bechtel Australia Pty Ltd and G Willis [Print T4974, 22/12/00] wherein his Honour granted a stay order having regard to the capacity of the respondent employee to repay monies awarded in the event that an appeal was successful.

22 Mr Graham stated that the financial situation of the respondent in that matter was not dissimilar to the financial situation of the respondent in this matter. He contended that in this matter there was a question as to whether the respondent would be able to repay the monies ordered by the Commission should the appeal be successful (and a stay not be granted). The appellant submitted that, in this respect, the balance of convenience test had been met on the evidence of the respondent.

23 Mr Graham made submissions as to whether the appellant had an arguable case as follows: 1. The Commissioner erred in the exercise of his discretion in making an order for the payment of lost remuneration between the time of dismissal and the time of reinstatement. It was contended that he made an order for payment of an excessive sum and did not provide any reasoning as to the amount ordered to be paid by the appellant.

a 2. The Commissioner erred in ordering the reinstatement of the respondent. He did not give sufficient weight to the evidence in the proceedings which showed that the club had a very small number of employees and was suffering financial hardship. Further, he failed to take into account that a number of employees, including the applicant, were converted to on-call casuals as a result of a restructuring of the Club's operations. It was that restructuring process which had resulted in dispute proceedings before the Commission. 3. The Commissioner erred in finding that cl30 of the Club Employees (State) Award applied to the respondent. It was submitted that the respondent was a casual employee with no fixed hours. She had some expectation of ongoing work but the availability of such work was subject to operational requirements and absence of full-time and part-time employees. He submitted that, whilst the dispute settlement procedure in cl30 of the award applied to full-time and part-time employees, those provisions did not extend to casual employees. He further contended that the treatment of casual employees under a new Club Employees (State) Award made in 1999 (and, in particular, the provisions of cl9.3 and 10 of that award relating to casual employees engaged prior to the making of the award) demonstrated that casual employees were not "employees" for the purposes of cl30 of the award. In that respect, Mr Graham submitted: Because of the nature of the manner in which the employee and the employees if they are under a disciplinary procedure whether they are full-time or part-time are dealt with. There is the ability to stand down a full-time or part-time. There is an ability not to call in a casual correction. Ms Grammel was put on clear notice that there were some difficulties with the way in which she worked and she is in danger of not being telephoned to be given new work. Ms Grammel did not receive a letter saying she was dismissed. Ms Grammel received a letter already saying she was no longer going to be offered work as a call in casual and my submissions to Commissioner Connor , which I say were not dealt with in as full a way as possible, were I drew a distinction between the figures of employees in relation to clause 30.1.9 and part-time and full-time employees had a definite and ongoing expectation of work by regular rostered shifts.

The appellant also contended that the Commissioner incorrectly relied on the decision of a Full Bench in Rich River Golf Club Ltd v Power stating that that decision addressed an "actual dismissal" following an event and that the "background in that matter" and "'this matter" were distinguishable.

It was also contended that Connor C failed to give adequate reasons for his decision.

The Respondent 24 Ms Lowson submitted that the filing of an application for appeal did not constitute a sufficient basis for the grant of a stay. Whilst it may be accepted, it was contended, that there need not be demonstrated exceptional circumstances for a stay to be granted, the appellant must demonstrate a reason why it would be appropriate for a stay to be granted.

25 Counsel submitted that no case had been made out for the granting of the stay application. There was no evidence called to establish a reason as to why this was an appropriate case for depriving the respondent of the benefit of the orders at first instance.

26 As to the order for reinstatement made at first instance, it was submitted that there was no evidence called as to there being a lack of work for the respondent. There was no evidence before the Commission that the reinstatement order was impracticable or that such an order would cause the appellant financial difficulty.

27 As such, it was submitted that, in accordance with the approach adopted by Wright J, President, in Re Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192 at 199, no appropriate case had been made out for a stay and the application for a stay should fail in limine.

28 If the Commission accepted the respondent's contentions in that regard, it was submitted that, having regard to the evidence of the respondent, the balance of convenience favoured the respondent being returned to work in accordance with the orders at first instance.

29 Ms Lowson submitted that the decision of Hungerford J in Transport Industry (Courier & Taxi Truck) Contract Determination (unreported, Matter No IRC2533 of 1992, 21 December 1992, at 2) was incorrect as his Honour had not properly applied the principles regarding the balance of convenience. That is, it was not a proper application of the principle to simply look at the question of reinstatement in terms of the receipt of monies until the determination of the appeal. The issue of reinstatement was not simply about money. It was submitted that reinstatement involved quality of life issues for an employee from the time of obtaining a successful decision at first instance to the time the appeal is determined.

30 It was submitted that there may well be circumstances in which the nature of alleged misconduct giving rise to a dismissal would warrant the stay of a reinstatement order. However, there was nothing in this case which would warrant such a conclusion. Further, the Commission had accepted at first instance that the remedy of reinstatement was appropriate.

31 In the alternative, it was submitted that the Commission should adopt the approach of Peterson J in Bankstown City Council v Paris (unreported, Matter No IRC262 of 1999, 29 January 1999). It was contended that in those proceedings Peterson J, having heard the parties in relation to an application for a stay of an order for reinstatement, made a finding that it would be inappropriate to return the respondent employee to work with the appellant in circumstances where there had been allegations of serious sexual harassment. His Honour did, however, conclude that the employee should not be deprived of the wages that he would have earnt in the interim and, as such, the Commission made an order that the appellant pay the respondent his wages as though he had been reinstated, pending the determination of the appeal and that the payment of such monies was not conditional upon the outcome of the appeal.

32 As to the order for the payment of monies at first instance, Ms Lowson submitted that in this area the appellant had also failed to demonstrate any basis why such orders should be stayed. There was no evidence led by the appellant that would indicate that the respondent could not repay the money should the stay be refused and the appeal successful.

33 It was submitted, in the alternative, that the Commission should, in part, grant the stay. A reasonable approach would be to approximate the income of the respondent between the hearing of the stay application and the estimated time for determination of the appeal, which would give a sum in the vicinity of $4800.

34 Finally, it was submitted that the case on appeal was particularly weak and the appellant had little prospect of success.

35 In reply, Mr Graham sought to distinguish the appellant in these proceedings from that in Bankstown City Council v Paris in that the appellant in this case was a small organisation with limited resources. It was submitted that, whilst there was no evidence led in the stay proceedings as to the appellant's limited resources, there was evidence to this effect at first instance. Further, the Commissioner had accepted that the appellant had limited resources. He submitted that the decision of Hungerford J in Re Transport Industry (Courier & Taxi Truck) Contract Determination was not pertinent to the application for a stay in this matter.

36 The general principles applicable to the determination of an application for a stay were recently discussed by me in Campbells Cash and Carry Pty Limited v National Union of Workers, New South Wales Branch [2001] NSWIRComm 79 at [49] - [69]. There are some aspects of the discussion of the principles to be applied in relation to stay applications in that matter which are particularly apposite in this matter. Those aspects of the decision shall be set out in full below (at [63] - [65]): 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. 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. 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.

37 I would add that it is appropriate also to have regard to the appellant's prospects of success in this matter in order to consider the specific terms of any stay "that will be appropriate fairly to adjust the interests of the parties": Alexander and others v Cambridge Credit Corporation Ltd (Receivers Appointed) and another (1985) 2 NSWLR 685 at 695.

38 It is appropriate to make an assessment of the appellant's prospects for success in this matter. That consideration is relevant to both the question of the balance of convenience and the terms of any stay. Such an assessment is necessarily preliminary in nature as the Commission has not fully heard the parties on the application for leave to appeal or the merits of the appeal.

39 In my view, the appeal is arguable, but it is attended by some difficulties.

40 Putting aside a challenge to certain findings of fact made by the Commissioner, there were three primary grounds for the appeal. Firstly, it was contended that the Commissioner erred in finding that cl30 of the award applied to the applicant, given the nature of her engagement as a casual employee.

41 The difficulty with this contention, however, is that it is reasonably arguable that cl30 of the award applies to employees covered by the award, irrespective of the nature of their engagement. The provisions of cls9.3 and 10 of the award, referred to by Mr Graham, may not appear to assist in the construction proposed by the appellant.

42 There appears to be no issue that the provisions of cl30 of the award were not adhered to by the appellant in the dismissal of the respondent. In the event that the provisions of cl30 apply to the respondent the decision in Rich River Golf Club v Power represents a substantial hurdle to the appellant's challenge to the orders made by the Commissioner at first instance.

43 The second aspect of the appeal is the contention that the Commissioner erred in granting a sum of money pursuant to s89(3) of the Act. There was no challenge to the jurisdiction of the Commissioner to make such a decision. Further, it was not challenged that the Commissioner purported to exercise a power under that section. The appellant did not contend that the respondent would have earned income from the appellant in her former position from the time of her dismissal until the decision of the Commissioner at first instance. Rather, it was submitted that the Commissioner failed to give adequate reasons for his decision to award monies to the respondent and that the amount awarded was excessive.

44 The second contention is arguable, although it would be expected that any assessment of the Commissioner's decision in this respect would need to be considered in context. The date of the order of reinstatement of the respondent was some considerable time after the date of her dismissal which provides the context in which the Commissioner's decision to award back pay is to be considered.

45 The third aspect of the challenge to the decision at first instance concerned the grant of the remedy of reinstatement and the conclusion by the Commissioner that reinstatement was not impracticable. It was contended that the Commissioner had failed to take into account the size and nature of the appellant's operation in reaching his decision.

46 This ground of appeal is an attack on the exercise of the Commissioner's discretion. It has to be considered in the context where the Commissioner expressly referred to the nature of the appellant's operations in the reasons given in that respect.

47 I now turn to consider the question of the balance of convenience.

48 Both parties referred to the decision of Hungerford J in Re Transport Industry (Courier & Taxi Truck) Contract Determination in relation to that question. As earlier mentioned, both counsel and the representative for the appellant submitted that that decision should not be applied in the present case, albeit for substantially different reasons.

49 The decision in Re Transport Industry (Courier & Taxi Truck) Contract Determination concerned an appeal from a decision by McKenna C in which the Commissioner ordered the reinstatement of an employee and the payment of a sum of money. His Honour referred to the principles concerning a stay application and observed that the appellant was required to demonstrate a reason or appropriate case to warrant the exercise of discretion in his or her favour. His Honour approached the question of the balance of convenience in that case as follows (at 2): The question then is whether the appellant has established or demonstrated a reason or an appropriate case. In my view the appellant has, and it may be tested in this way. If a stay were granted and the respondent succeeded on the appeal it could still obtain all the relief to which it then was entitled. If a stay were not granted, however, then the respondent would be unfairly advantaged if the appellant was successful on the appeal because Ms Van Ryan would have been reinstated in the meantime and paid monies. The granting of a stay order here would not unfairly, in my view, advantage the appellant over the respondent.

50 The respondent relied upon a decision of Peterson J in Bankstown City Council v Paris in order to contend that the approach by Hungerford J in that matter should not be applied in the present case. In Bankstown City Council v Paris, Peterson J considered the decision in Re Transport Industry (Courier & Taxi Truck) Contract Determination and stated (at 5): I was also referred to a decision of Hungerford J in Transport Industry (Courier and Taxi Truck) Contract Determination , a decision given on 21 December 1992, again in relation to a stay of a reinstatement order pending appeal. His Honour, after referring to the approach adopted by the Commission in the Water Industries Salaried Officers' Union v Professional Officers' Association New South Wales ([1987] 22 IR 178) considered what should be done in the particular case. His Honour took the view that it was appropriate to stay the orders, it being, in his Honour's view, unfair to advantage the respondent to the appeal by receiving moneys due under the reinstatement order should the appellant be successful on appeal. His Honour also took the view that to grant the stay would not unfairly advantage the appellant over the respondent. I have to express a difficulty with that approach. It seems to me that in reinstatement appeal proceedings where an employer appeals from a decision of reinstatement and perhaps an order with respect to the payment of wages lost that to regard the matter from the point of view of advantage or disadvantage in the way that Hungerford J did could tend to cause a stay to have an element of automaticity about it. I prefer the view that the principles as enunciated by his Honour should operate, namely that the appellant is required to demonstrate a reason or an appropriate case to warrant the exercise of discretion in his favour on the stay application.

51 Peterson J also considered whether the appellant had established an arguable case. His Honour indicated that he was not convinced that, at the stage of the hearing of the stay application, that the appellant had made out an arguable case. His Honour then proceeded to stay the reinstatement order at first instance (having regard to certain difficulties that may be occasioned if the respondent were returned to work) and the orders for the payment of money (due to difficulties that may be occasioned by future repayment or recovery). His Honour adopted a proposal advanced by the appellant that the respondent be paid wages that would have been lost to him in the interim (if a stay had not been granted) less earnings from a business operated by the respondent. However, his Honour considered that, contrary to the submission of the appellant, the payment of such monies should not be conditional upon the outcome of the appeal.

52 I consider that the balance of convenience favours the appellant in relation to the reinstatement order made at first instance. Upon the preliminary assessment made at this stage of the proceedings, whilst the appellant's prospects for success are not strong this consideration needs to be balanced against the nature of the employment of the respondent. She was a casual employee engaged in a relatively small business operation. This is not to suggest that the reinstatement of the employee is thereby rendered impracticable, but simply that the balance of convenience favours the grant of a stay when regard is paid to the nature of the appellant's business as Mr Graham's submissions indicated.

53 In contrast, I consider that the potential difficulties with the appellant's prospects for success on the appeal (as assessed at this stage of the proceedings) is a factor significantly in favour of rejecting the application for a stay with respect to the orders for the payment of money at first instance.

54 The principal basis advanced in support of the application for a stay of the money orders by the applicant was that the respondent had some financial difficulties and may have an incapacity to repay the monies if the appeal was successful. This contention does have some basis on the evidence but it is significantly diminished by the following considerations:

It was not suggested to the respondent in cross-examination that she would not be able to repay any monies received as a result of the decision at first instance, if the appeal was successful and a stay was not granted. Further, it was not suggested to the respondent that the monies received would be consumed by any borrowings or that there would be unreasonable delays occasioned in repaying monies in the event of a successful appeal. 2. The financial difficulties presently encountered by the respondent flow directly from her dismissal and the failure of the appellant to reinstate the respondent after the decision of Connor C. This consideration is important in this case in the balancing required by the principle from Custom Credit earlier stated in this decision (see [37]).

55 In all these circumstances and, taking into account the respective interests of the parties, I have determined to grant the stay sought by the appellant on terms. A term of the stay will be that the appellant pay to the respondent a sum equivalent to sixty percent of the amount awarded by Connor C.

56 The Commission orders that the orders made by Connor C in Matter No IRC 4216 of 2000 on 25 May 2001 be stayed until further order of the Commission upon the term that the appellant shall pay to the respondent the amount of $5400 by no later than 4pm, Friday, 3 August 2001.

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