Fair Work Act 2009

s.604 - Appeal of decisions

Application for a stay under s 606 - application refused

[1] This is an edited version of a decision delivered ex tempore on 16 August 2023 to which I have added an introduction. Certis Security Australia Pty Ltd (Appellant) has applied for a stay under s 606 of the Fair Work Act 2009 (the Act) in connection with an appeal it has lodged against a decision of Deputy President Anderson made on 4 August 2023 ( [2023] FWC 1892).

[2] Section 606(1) of the Act provides as follows:

"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."

[3] It is well-settled that before exercising the discretion to grant a stay, the Commission must be satisfied that the appellant has an arguable case, with some reasonable prospect of success both in respect of permission to appeal and the substantive merits. In addition, the balance of convenience must weigh in favour of the decision subject to appeal being stayed.

[4] The decision in respect of which the stay is sought in this matter concerned an application by Mr Gursharan Singh for an extension of time within which to bring his unfair dismissal application. Section 394(2) of the Act states that an unfair dismissal application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 394(3). That section permits the Commission to allow a further period if it is satisfied that there are 'exceptional circumstances', taking into account the matters that are set out in ss 394(3)(a) to (f).

[5] The Deputy President determined that there were exceptional circumstances in Mr Singh's case. Mr Singh had filed an earlier unfair dismissal application, in which he claimed to have been dismissed on 14 March 2023. The appellant objected to that application on the basis that it had not dismissed Mr Singh at that time. In a decision dated 14 June 2023, the Deputy President concluded that Mr Singh had not been dismissed on 14 March 2023, and upheld the jurisdictional objection. Then on 24 June 2023, Mr Singh made a second unfair dismissal application, in which he claimed to have been dismissed on 14 April 2023. This time there was no dispute about the fact that Mr Singh had been dismissed. However, the Appellant raised a different objection, namely that the application was not made within the 21-day period required by s 394(2). Mr Singh then sought an extension of time.

[6] The Deputy President considered that the reason for delay (the consideration in s 394(3)(a)) weighed 'partly' in Mr Singh's favour. He noted that Mr Singh had been busy pursuing his first unfair dismissal claim, that it had not occurred to him to file a second application once he was in fact dismissed on 14 April 2023, and that it was understandable that Mr Singh was focused on the first application (at [87]). The Deputy President found that other considerations were 'largely neutral or irrelevant' (at [89]).

[7] The Deputy President concluded that the circumstances of the case were unusual (at [90]), and that overall, the combination of circumstances was exceptional, such that the discretion to extend time was enlivened (at [91]). He considered that it was appropriate to exercise the discretion because at all times Mr Singh had sought to have the merits of his claim dealt with through an unfair dismissal application; the employer had been on notice of this since the first application was filed on 17 March 2023; and Mr Singh had been attentive to the litigation that he had commenced. The Deputy President extended time and decided also to issue an order to reflect his decision. The order contains two paragraphs. Paragraph A extends time to allow Mr Singh's application to proceed. Paragraph B states: 'Application U2023/5651 is referred to conciliation'.

[8] The Appellant raises three grounds of appeal. First, it contends that the Deputy President erred in finding that the combination of circumstances was exceptional. It says that this finding was legally unreasonable, given the Deputy President's earlier conclusion that there was only a partial explanation for the delay and that the other considerations were largely neutral or irrelevant. Secondly, the Appellant contends that the Deputy President erred in finding that it had been on notice that Mr Singh was challenging his dismissal since 17 March 2023. The Appellant says that this finding was unavailable because Mr Singh was not in fact dismissed until a month later, as the Deputy President concluded in his earlier decision. The third ground contends that the Deputy President did not take into account relevant considerations, including the forensic choice of Mr Singh to pursue and focus on his first application, in which he contended that he had been dismissed in March 2023.

[9] I am not persuaded that there is an arguable case that the Deputy President's decision was legally unreasonable. The Appellant may be able to develop this ground in the appeal, but normally such a contention faces a very high bar for success, which does not appear to me to be attainable in this case. I consider that the second and third appeal grounds present at least an arguable case of error, with some reasonable prospect of success, however in light of what follows below, I do not propose to elaborate on my reasons.

[10] Before granting a stay, the Commission must be satisfied that the balance of convenience favours a stay of the decision that is subject to appeal. In this case, there is a preliminary question of whether in fact the Appellant seeks to stay the decision of the Deputy President. The notice of appeal states that paragraph B of the order has referred the matter for conciliation by a conciliator of the Commission, that a conciliation conference has been listed for 10.45am on 17 August 2023, and that the Appellant seeks that the conciliation conference be stayed until the determination of the appeal.

[11] In my view, paragraph B of the order is not capable of being stayed. First, it is not directed at the Appellant and does not require the Appellant to do anything. It simply refers the application for conciliation. This referral was in fact directed to the unfair dismissal team. Secondly, the referral of the matter to conciliation was an administrative decision, one separate from the decision to extend time which is the subject of the appeal. Thirdly, on one view at least, what the Appellant seeks to stay is not paragraph B of the Deputy President's order, but the decision of the unfair dismissal team to list the matter for conciliation on 17 August 2023. That decision is not under appeal and cannot be stayed.

[12] Even if one were to conclude that the listing of the application for conciliation is to be regarded as an emanation of the operative effect of the Deputy President's decision and amenable to being stayed, I am not persuaded that the balance of convenience would favour this course. There is little if any prejudice to the Appellant if the conciliation proceeds. The Appellant cannot be required to make concessions. And if the Appellant does not wish to negotiate until the appeal has been determined, it can make this known to the conciliator at the start of the conference and it will likely soon be over. Alternatively, it can contact the unfair dismissal team and request that the conference be adjourned. The notice of listing for the conciliation contemplates that conferences can be adjourned on substantial grounds.

[13] For the reasons given above, the application for a stay is refused.

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