Fair Work Act 2009

s.604 - Appeal of decision

BBV Legal Pty Ltd T/A Bowen Buchbinder Vilensky

Application to stay decision of Commissioner Schneider at Perth on 21 May 2024 to dismiss an application for an order requiring persons to attend before the Commission that persons. Application for a stay refused.

• [1] This is an application for stay orders in an appeal that Ms Greenan has lodged against decisions of Commissioner Scheider on 13 May and 21 May 2024. The first decision was to hear a jurisdictional issue later today and the second was to refuse to make an order requiring persons to attend before the Commission. The stay orders are opposed.

• [2] In a hearing earlier today, I indicated that I had decided not to issue the orders. These are my reasons for that decision.

• [3] The proceedings before the Commissioner involve an application by Ms Greenan under s.789FC of the Fair Work Act 2009 (Cth) for an order that bullying stop. An issue is to be considered in that application as to whether in the circumstances the matter should be dismissed for want of jurisdiction. The circumstances being that since the application was filed Ms Greenan's employment has been terminated. The termination of employment gives rise to the question of whether a stop bullying order can now be made.

• [4] The jurisdictional issue was raised by the Commissioner and directions were issued on 29 April 2024 for the filing of material in relation to it. The Commissioner initially intended to determine the issue without a hearing. Ms Greenan requested that a hearing occur, and the Commissioner acceded to that request. On 13 May 2024 a notice of listing was issued for today's hearing of the jurisdictional point.

• [5] On 17 May 2024 Ms Greenan applied to the Commissioner for orders that persons attend the hearing on the jurisdictional question. The Commissioner received submissions on the application and decided on 21 May 2024 that he would not issue the order. His decision was communicated to the parties by email and short reasons were provided.

• [6] Mrs Greenan filed a notice of appeal on 22 May 2024. The notice seeks to appeal the decision to refuse to make the order to attend and to appeal the notice of listing on 13 May 2024. I understand from the submissions made today Mr Greenan seeks time to now approach the persons who were the subject of the application for order to seek that they make witness statements to be relied upon at the hearing. I understand those statements are to address the question of whether bullying had occurred. I am informed that Mrs Greenan has filed an application under s 365 for the Commission to deal with a dispute over the dismissal. The argument that Ms Greenan seeks to advance is that should the s 365 application result in her reinstatement then there will still be a basis for her anti-bullying claim.

• [7] The power to stay decisions is found in s. 606. The Commission may order that the operation of the whole or part of a decision that is under appeal be stayed on any terms and conditions that the Commission considers appropriate, until a decision in the appeal is made.

• [8] The decisions that Mrs Grennan seeks to appeal were both procedural decisions. Sections 589 and 590 gives the Commission broad discretionary powers in determining the procedure to be followed in matters that come before it. Section 589 permits the Commission as to how, when and where a matter is to be dealt with. Section 590 provides that the Commission inform itself in relation to any matter before it in such manner as it considers appropriate. Section 590(2)(a) provides that the Commission may require a person to attend.

• [9] The Commissioner has decided to hear the jurisdictional point matter in person today. Opportunities have been given to parties to file material in relation to that matter. Ms Greenan sought an order that persons attend so that oral evidence can be led in relation to the matter. The Commissioner declined to make the orders. I am of the view that neither decision gives rise to anything capable of being stayed under s 606. The decisions have no substantive operative effect. In submissions the appellant contended that the failure to make the order that persons attend disadvantaged her in the proceedings as she was unable to provide witness evidence on a point she wished to raise. In submissions before me it was put that this left Ms Greenan in the position that she needed time to seek from the person the subject of her application for orders written statements for use in the proceedings. If that is the case it is a matter best dealt with by the Commissioner.

• [10] It appears that the purpose of the application is to have the proceedings before the Commissioner adjourned so that written evidence can be marshalled. I do not consider s 606 is directed to empowering the Commission in stay proceedings to issue orders in those circumstances.

• [11] If I am wrong on that question, I would not exercise the discretion to make the orders sought. The appeal is against procedural decisions. Appeals from procedural decisions are not to be encouraged. I do not consider that there is an arguable case that permission to appeal will be granted in this case. This is especially so where Ms Greenan has stated that she intends appealing the substantive decision should it go against her. It is not in the public interest that litigation be conducted in the piecemeal way proposed by the appellant. I can see no other discretionary grounds for permission to appeal to be granted.
• [12] Further, the purpose of the current application is better achieved by an application to the Commissioner to adjourn of the proceedings to allow evidence to be gathered. That is an application that can be dealt with by the Commissioner and determined on its merits.

• [13] The application for stay orders is dismissed.

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