Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2025] FWC 2783 of Commissioner Walkaden at Sydney on 18 September 2025 in matter number U2025/4135 - Stay application - Stay sought against order for reinstatement - Stay granted on conditions.

• [1] Leigh Moiler was employed by Cowra Meat Processors Pty Ltd (CMP) until he was dismissed on 19 March 2025. Following his dismissal, Mr Moiler applied to the Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). The matter was allocated to Commissioner Walkaden. On 18 September 2025, the Commissioner handed down his decision.[1] The Commissioner found that Mr Moiler had been unfairly dismissed and that it was appropriate for Mr Moiler to be reinstated. On that day, the Commissioner ordered that Mr Moiler be reinstated within 14 days of the decision and that the continuity of his service be maintained.

• [2] On 26 September 2025, CMP filed a notice of appeal seeking permission to appeal and to appeal from the decision under s 604(1) of the Act. In its notice of appeal, CMP sought a stay of the orders made by the Commissioner. The application for a stay was listed before me on 2 October 2025. CMP was represented by Anthony Harding of counsel and Mr Moiler was represented by Cathy-May Gill, an industrial officer employed by the Australian Meat Industry Employees Union (the AMIEU). Later that day, I made orders granting the application for a stay subject to certain conditions, including that CMP pay Mr Moiler the wages and other payments he would have received had he been reinstated pending determination of the appeal. These are my reasons for making that order.

• [3] Prior to his dismissal, Mr Moiler had been employed by CMP as a production worker at its abattoir in Cowra in New South Wales for approximately eight years. The reasons given for Mr Moiler's dismissal in the letter of termination were that Mr Moiler had been absent from work without explanation between 3 March and 14 March 2025 and that, when he returned to work on 17 March 2025, he left his shift early without notifying his supervisor and engaged in multiple outbursts towards other staff members, including specific incidents involving a particular employee, Mr Brown, and another unidentified employee. The letter of termination asserted that Mr Moiler's behaviour was unacceptable in light of its Anti-Harassment, Discrimination and Bullying Policy and Code of Conduct. At the hearing of the unfair dismissal application, CMP also relied on other allegations being that Mr Moiler had: (a) made racist comments towards other staff members, (b) engaged in bullying behaviour towards other staff members, (c) refused to follow instructions from management including regarding the need to train other staff, and (d) displayed a hostile attitude towards staff members.

• [4] Having considered the evidence before him, the Commissioner found that there was a valid reason for Mr Moiler's dismissal being that Mr Moiler failed to notify his absence from the period from 10 March 2025 to 17 March 2025, and Mr Moiler left the shift and site before the end of shift on 17 March 2025 without first seeking permission and being dismissed by the supervisor. In relation to the other allegations, the Commissioner was not satisfied that Mr Moiler engaged in the conduct alleged against him and, as a result, concluded that the remaining allegations did not provide a valid reason for dismissal. After considering the other matters identified in s 387 of the Act, the Commissioner found that Mr Moiler was unfairly dismissed. The Commissioner concluded that reinstatement was appropriate and made orders that Mr Moiler be reinstated and that the continuity of his employment be maintained. The Commissioner was satisfied that an order with respect to lost pay should be made and made directions to facilitate the determination of the appropriate amount.

• [5] CMP sought a stay of the orders of the Commissioner pending the hearing and determination of its appeal. In advance of the hearing of the stay application, CMP filed three witness statements, an amended notice of appeal and an outline of written submissions. Ultimately, a witness statement of Bonnie Stewart, Operations Manager, dated 30 September 2025 and a witness statement of Stephanie Taylor, Payroll officer, also dated 30 September 2025 were admitted into evidence in relation to the stay application. Ms Stewart and Ms Taylor were not required for cross-examination. In summary, Ms Stewart and Ms Taylor expressed serious concerns about the prospect of Mr Moiler returning to the workplace. Mr Stewart's witness statement included the following:

7. I also hold serious concerns for my own safety should Mr Moiler return to Cowra.

8. During Mr Moiler's tenure, I witnessed and experienced firsthand Mr Moiler bullying and harassment, manipulation and lies towards others. Because of this, while working as WHS Advisor, I would often avoid entering the slaughter floor alone, and if unavoidable, I would ensure I was accompanied by a member of management or a male employee who could intervene should my interactions with Mr Moiler escalate.

9. I was required to provide evidence against Mr Moiler during the Fair Work Commission hearing, and have concerns that he will retaliate.

10. It was clear through my experiences working with Mr Moiler that he has no respect for management, or me as his superior within the organisation. I am a 31-year-old female leading a substantial, male dominated meat processing business, where historically women were almost entirely limited to administration and small roles in the running room. I fear that Mr Moiler's return will undermine this progress and destabilase the inclusive culture we have worked hard to build.

• [6] Ms Taylor's witness statement included the following:

5. The prospect of Mr Moiler returning is already causing me significant stress and anxiety. Should Mr Moiler be reinstated, I would have genuine and ongoing concern for my personal safety. Based on the information I have provided to the Commission, I believe that if Mr Moiler were to return, he would habor [sic] resentment towards me and may act on it.

6. This apprehension would seriously impact my ability to perform my role effectively, including my capacity to focus, exercise sought judgment, and meet my professional responsibilities. In my view his return would create an environment where I could not safety or confidently carry out my duties. I feel that upon his return to work I would have no alternative but to lodge a formal grievance and resign from my employment at Cowra to protect my safety and mental health. I do not make this statement lightly.

• [7] As will be apparent, Ms Stewart and Ms Taylor oppose Mr Moiler returning to the workplace in the strongest possible terms, including expressing concern for their own physical safety and mental health. It is important to record that Ms Gill, on behalf of Mr Moiler, disputed the allegations upon which Ms Stewart and Ms Taylor's views appear to be based. It must also be observed that, to the extent Ms Stewart and Ms Taylor's concerns are based on the alleged past conduct of Mr Moiler, they find no support in the decision of the Commissioner. The Commissioner was not satisfied that Mr Moiler had engaged in conduct in the nature of bullying or harassment, made racist comments or that he had exhibited a hostile attitude towards other staff members. The Commissioner found that:[2]

I am not satisfied that the fear expressed by Ms Stewart and the Respondent about Mr Moiler's reinstatement is soundly or rationally based. Those fears appear to be based on Mr Moiler's behaviour. I have found that several of the reasons for Mr Moiler's dismissal either had not been made out or did not occur in the manner alleged by the Respondent.

• [8] In relation to the stay application, CMP submitted that it has at least an arguable case on appeal with reasonable prospects of success based on significant errors of fact identified in the decision of the Commissioner. In relation to the balance of convenience, CMP relied on the concerns expressed by Ms Stewart and Ms Taylor in relation to the return of Mr Moiler to the workplace and the potential adverse consequences of reestablishing the employment relationship in circumstances in which it may be interrupted again if the appeal is successful. To ameliorate prejudice to Mr Moiler, CMP indicated that it agreed to pay him his usual salary from 2 October 2025 until the date of the determination of the appeal. CMP also relied on evidence that Mr Moiler had obtained alternative employment as a beekeeper.

• [9] Mr Moiler submitted that the application for a stay should be refused. He submitted that the appeal does not have good prospects of success, and the grounds of appeal do no more than express dissatisfaction with the factual findings made by the Commissioner. Ms Gill indicated that Mr Moiler wanted to return to his work. She said that Mr Moiler had been off work for a period of time with a workplace injury prior to this dismissal and then away from work for a substantial period after dismissal. She submitted that it would be detrimental to his well-being and mental health for Mr Moiler to be excluded from the workplace. Ms Gill disputed that other employees opposed Mr Moiler returning to the workplace and noted that the concerns expressed by Ms Stewart and Ms Taylor are inconsistent with the findings of the Commissioner.

• [10] The power to grant a stay pending the hearing and determination of an appeal lodged under s 604 is contained in s 606(1) of the Act, which provides:

(1) 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.

• [11] A commonly cited formulation of the principles applicable to the grant of a stay is found in Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 in which Ross VP (as his Honour then was) said:[3]

In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects 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.

• [12] The usual principle applied by the courts, when considering an application for a stay pending appeal, is that "a successful party is entitled to the fruits of his judgment" and there must be "sound reasons" to justify a suspension of that right.[4] No different principles are applicable where a stay is sought of a reinstatement order. In a particular case, there might be consequences of reestablishing an employment relationship in circumstances in which it may be interrupted again if the appeal is successful which militate in favour of a stay being granted. Although those consequences may be relevant to an assessment of the balance of convenience in such a case, it is not correct to say that the grant of a stay in an appeal against a reinstatement order is the "normal" or "usual" course.[5]

• [13] The first matter to be considered is whether CMP has an arguable case, with some prospects of success, in relation to both the question of permission to appeal and the substantive merits of the appeal. The amended notice of appeal contains 12 grounds. Ground 1 to ground 5C are described as "errors of law", although a number of those grounds allege that the Commissioner erred in his assessment of the evidence, failed to take proper account of matters raised in the evidence or erred in making particular findings. Ground 6 to ground 8 are described as involving "significant errors of fact" and allege the Commissioner erred in the findings made in relation to the incidents on 17 March 2025 involving Mr Brown and the unidentified employees and in finding that Mr Moiler did not make racist comments towards other staff members.

• [14] In considering a stay application, it is not possible to engage in a detailed consideration of the merits of an appeal. The material before the Commissioner was extensive. I have not had the opportunity to consider it in the detail which would be required to fully consider the grounds of appeal. I do not have full submissions before me in relation to the appeal. In some cases, it will be appropriate to consider the strength of an appeal as a preliminary assessment, in order to properly assess the balance of convenience and fairness to the parties.[6] However, the Commission will not conduct a summary hearing of the appeal and the grounds will ordinarily be considered on their face and examined only at an impressionistic level.[7]

• [15] Based on a preliminary and necessarily superficial assessment, the errors sought to be identified in the decision of the Commissioner in the notice of appeal face some challenges. An appeal in an unfair dismissal matter which primarily seeks to revisit factual findings made at first instance might have difficulty attracting a grant of permission to appeal in the public interest which is required by s 400(1) of the Act. Furthermore, many of the factual findings made by the Commissioner appear likely to have been influenced by the Commissioner having observed the evidence being given. Findings of that nature will only be upset on limited grounds.[8]

• [16] Mr Harding emphasised that the grounds of appeal included that the Commissioner had erroneously treated evidence given by Mr Rue concerning the incident between Mr Moiler and Mr Brown as hearsay when it fell within an exception to the hearsay rule under s 63(2)(a) of the Evidence Act 1995 (Cth), erroneously treated evidence given by Mr Ryan as hearsay when it was not and erroneously taken into account that certain matters were not put to Mr Moiler in cross-examination when, properly understood, the rule in Browne v Dunn does not apply in Commission proceedings. Mr Harding submitted that these grounds have significant merit and also raise questions of broader importance so as to justify a grant of permission to appeal.

• [17] I am not convinced that the grounds of appeal are as strong as Mr Harding submitted. In particular, the contention that the Commissioner was required to, or should have, given greater weight to hearsay evidence (even if it is admissible hearsay) in circumstances in which Mr Moiler gave direct evidence, may face difficulties. However, I am prepared to accept, without detailed evaluation and in a purely preliminary way, that the grounds of appeal are arguable and have some prospects of success. I also accept that the submission made in relation to the rule in Browne v Dunn, and the authorities referred to, may have broader implications for the jurisprudence of the Commission which may be relevant to the question of whether it is the public interest to grant permission to appeal.

• [18] In relation to the balance of convenience, CMP places considerable weight on the witness statements of Ms Stewart and Ms Taylor. Ms Stewart and Ms Taylor express serious concerns about their personal safety and mental health if Mr Moiler returns to the workplace. I am not in a position to doubt that Ms Stewart and Ms Taylor subjectively hold those concerns. However, I have some difficulty in accepting the reliance placed on those concerns. As I have observed, to the extent the Ms Stewart and Ms Taylor's concerns are based on alleged past conduct on the part of Mr Moiler, the Commissioner has found that the conduct did not occur. Furthermore, the evidence before the Commissioner indicates that CMP did not take disciplinary action with respect to any conduct of Mr Moiler prior to the incidents on 17 March 2025. CMP evidently did not regard the past conduct of Mr Moiler as warranting disciplinary action, much less that he be removed from the workplace.

• [19] It is appropriate that I give weight to Mr Moiler's desire to return to work and his submission that his well-being and mental health will suffer if he is forced to remain away from his chosen occupation. I accept that the capacity to actually perform work in a job has an intrinsic value which is separate and distinct from the benefit of the remuneration received for the performance of such work.[9] That is a matter that will frequently be relevant to the assessment of the balance of convenience in circumstances in which a stay is sought in relation to a reinstatement order. It is relevant in this matter, and I have taken it into account in assessing the balance of convenience.

• [20] Although the assessment is finely balanced, I am satisfied that it is appropriate to grant a stay in this matter. Three considerations are, in my opinion, significant. First, the appeal is able to be listed before the Full Bench in the middle of November and, accordingly, the delay that will be occasioned by the stay is likely to be relatively short. Second, CMP has proffered an undertaking to pay Mr Moiler his usual salary pending the determination of the appeal so as to address any financial disadvantage that would be caused by a stay being granted. Mr Harding confirmed that CMP would not seek to recover the amounts paid irrespective of the outcome of the appeal. Third, although I do not accept much of what CMP has said in relation to its concerns about Mr Moiler returning to the workplace, in the particular circumstances of this matter it appears to me to be undesirable for the employment relationship to be reestablished whilst the appeal against the reinstatement order is pending.

• [21] For these reasons, I made an order staying the orders made by the Commissioner on condition that CMP pays Mr Moiler an amount equal to the wages and other payments the respondent would have received had he been reinstated on a fortnightly basis in the period from 2 October 2025 until the appeal is determined and not seek to recover those amounts irrespective of the outcome.

A Harding, of counsel, instructed by Wotton Kearney for the appellant.

C Gill, Industrial Officer of the Australian Meat Industry Employees Union for the respondent.

[1] Moiler v Cowra Meat Processors Pty Ltd [2025] FWC 2793.

[2] Moiler v Cowra Meat Processors Pty Ltd [2025] FWC 2793 at [124].

[3] Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 at [5].

[4] McBride v Sandland (No 2) [1918] HCA 59; (1918) 25 CLR 369 at 374; Philip Morris (Australia) Pty Ltd v Nixon [1999] FCA 1821 at [17].

[5] See, for example, Supreme Caravans Pty Ltd v Pham [2013] FWC 4766 at [11]; Virgin Airlines Australia Pty Ltd v Macnish [2024] FWC 2333 at [16]- [17]; Central Queensland Services Pty Ltd v Weule [2025] FWC 1835 at [14].

[6] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; Burgess v Mount Thorley Operations Pty Ltd [2002] NSWIRComm 290; (2002) 119 IR 52 at [22].

[7] See, for example, Commonwealth Bank of Australia v Roskott (No 2) [2014] NSWSC 1093 at [35] (Garling J); Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCA 41 at [8] (Perry J).

[8] Fox v Percy [2003] HCA 22; (2003)214 CLR 118 at [20]-[31]; Robinson Helicopter v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43]; Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]; AEU v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 at [36]- [39].

[9] Blackadder v Ramsay Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 at [32] (Kirby J) and [80] (Callinan and Heydon JJ); Quinn v Overland [2010] FCA 799; (2010) 199 IR 40 at [101] (Bromberg J); Transport Workers Union of Australia v Qantas Airways Ltd (No 4) [2021] FCA 1602; (2010) 312 IR 133 at [139] (Lee J); Elisha v Vision Australia Limited [2024] HCA 50; (2024) 99 ALRJ 171 at [67] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ).

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