s.604 - Appeal of decision

Appeal against decision [2025] FWC 2864 of Commissioner Matheson at Sydney on 26 September 2025 in matter number U2025/3372 - stay refused

• [1] Bloodstock Auction Pty Ltd (appellant) has applied for a stay under s 606 of the Fair Work Act 2009 (Act) in connection with its appeal against a decision of Commissioner Matheson on 26 September 2025 ([2025] FWC 2864) in which the Commissioner determined that the dismissal of Todd Curran was unfair and ordered the appellant to pay him compensation of $18,000 within 14 days. The notice of appeal was lodged yesterday. I heard the stay application earlier today.

• [2] The principles that apply to stay applications under s 606 are well established. Before granting a stay, the Commission must be satisfied that the appeal presents an arguable case, with some reasonable prospects of success both in respect of permission to appeal and the merits, and that the balance of convenience weighs in favour of a stay. The Commissioner's decision was made under Part 3-2, and therefore s 400 applies to the appeal. Section 400(1) states that the Commission must not grant permission to appeal from a decision made under that Part unless it considers that it is in the public interest to do so. Further, s 400(2) provides that, to the extent that an appeal is brought on a question of fact, an appeal can only be made on the ground that the decision involved a significant error of fact.

• [3] In her decision, the Commissioner determined that the appellant did not have a valid reason for the dismissal, because she was unable to find that the misconduct for which Mr Curran had been dismissed - bullying and aggressive behaviour - had occurred. The Commissioner found that Mr Curran could be direct and abrupt, and that certain matters weighed against a finding that the dismissal was unfair, including that Mr Curran did not acknowledge how aspects of his behaviour impacted on others. Ultimately however, having regard to all the circumstances, including the absence of a valid reason for dismissal, the Commissioner was satisfied that Mr Curran had been unfairly dismissed within the meaning of s 385 of the Act.

• [4] The appellant's notice of appeal contains 4 grounds. The first ground contends that the Commissioner erred in not attaching significant weight to the written statements of two of its witnesses, Ms Attard and Ms Mason, which attested to Mr Curran's behaviour. In her decision, the Commissioner explained that she had not placed significant reliance on the statements of these witnesses because their evidence was contested by Mr Curran, and they had not been available for cross-examination. The appellant submitted that it was unfair of the Commissioner to penalise it for this fact, because it had received only 3 days' notice of the hearing, and both Ms Attard and Ms Mason were unavailable: Ms Attard was overseas, and Ms Mason was required at work. But the Commission's case file tells a very different story.

• [5] On 6 May 2025, the Commissioner conducted a case management conference, at which she conferred with the parties and set the matter down for hearing on 30 June 2025. The Commissioner then sent the parties a notice of listing and directions to file materials. When the appellant failed to file materials, the Commissioner asked for an explanation. On 20 June 2025, the respondent's solicitors replied that the directions had diverted to 'junk email'. They requested an extension of time to file the appellant's materials. This was granted. On 27 June 2025, Mr Curran advised that he required Ms Mason and Ms Attard for cross-examination. The appellant's solicitors requested that cross-examination occur by video. This too was granted, and the Commissioner sent the parties a Microsoft Teams link. But on the day of the hearing, the appellant told the Commissioner that they were unavailable.

• [6] It is clear that the appellant had ample notice of the hearing. Further, it asked for Ms Mason and Ms Attard to be cross-examined by video, but then failed to arrange for them to attend. There is no indication that the appellant asked for an adjournment. In these circumstances, it is not arguable that the Commissioner erred by not attaching significant weight to the statements of Ms Mason and Ms Attard. Their evidence could not be tested in cross-examination. The Commissioner's approach appears to me to have been entirely orthodox.

• [7] The other appeal grounds are without any arguable merit. The second asserts that due to the short notice of the hearing, the appellant was denied a fair opportunity to have its key witnesses present. But this was patently not the case. The third appeal ground submitted that the Commissioner failed to consider its duty of care and workplace safety obligations to workers who had been subjected to Mr Curran's alleged misconduct, despite acknowledging in her decision that Mr Curran was 'direct and abrupt'. But there is no apparent contradiction here, and it is evident from the decision that the Commissioner did consider the respondent's arguments about its safety obligations. The Commissioner's factual finding was that the conduct alleged against Mr Curran had not occurred. The respondent contests this, but it is well established that the factual findings of a member at first instance should generally stand, unless they can be shown to be wrong by incontrovertible facts, or are glaringly improbable (see AEU v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 at [37] - [39]). It is not arguable that this is the case here. It appears to me that the Commissioner's findings were comfortably open on the evidence. The fourth ground of appeal restates the earlier grounds and presents no arguable case of error.

• [8] Based on the material presently before the Commission, I consider that the appellant does not have an arguable case, with some reasonable prospect of success, either in respect of permission to appeal or the appeal itself. In particular, there appears to be nothing that could engage the public interest, as s 400 requires. In these circumstances, there is no proper basis to stay the Commissioner's order. It is therefore not strictly necessary to consider the balance of convenience. However, I will record my view that the balance of convenience does not favour a stay. Neither of the appellant's contentions on this matter were persuasive. First, the appellant submitted that it was concerned that it would be difficult to recoup the compensation amount if its appeal is successful. But there is no evidentiary foundation for a conclusion that Mr Curran would not repay the amount if the appeal succeeded (see Polymaster Pty Ltd v Gunn [2024] FWC 2249 at [17] - [23]). Secondly, I do not accept the appellant's submission that it is not in a financial position to pay Mr Curran. The balance sheet submitted by the appellant shows bank assets of only $13,937.55, but this was as of 30 June 2025. Further, the document shows accounts receivable of several hundred thousand dollars. The starting point is that Mr Curran is entitled to the benefit of his success at first instance. Good reasons are required to warrant the Commission's intervention to suspend the payment of his compensation. In my view there are no such reasons in this case.

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

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