Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2019] FWC 2981 of Commissioner Wilson at Melbourne on 3 May 2019 in matter number U2019/256 - Application for stay - Fair Work Act 2009 s. 606.

[1] This decision relates to an application for a stay order by Creative Every Day Pty Ltd (the Appellant). The stay order is sought pursuant to s.606 of the Fair Work Act 2009 (the Act) in relation to an appeal against a Decision of Commissioner Wilson issued on 21 June 2019[1] which dealt with a jurisdictional objection made by the Appellant to an application for an unfair dismissal remedy made by Ms Yin Leung.

[2] The history of the matter as set out in the grounds of appeal can be briefly stated. Ms Leung made her unfair dismissal application against another entity - the Rejoice Chinese Christian Communication Centre Inc (Rejoice). Rejoice objected to the application on grounds including that it was not Ms Leung's employer at the time that she states her employment was terminated and that there was no termination of employment at the initiative of the employer.

[3] In a Decision issued on 3 May 2019[2] the Commissioner dealt with the jurisdictional objections. In dealing with the jurisdiction objections the Commissioner made a number of findings including that:

• At the date that the Respondent asserts her employment was terminated, she was employed by the Appellant and was not employed at that time by Rejoice;

• There was a connection of some kind between Rejoice and the Appellant;

• Mr Raymond Chow (who represented Rejoice at first instance) is the Chief Executive Officer of Rejoice and one of two Directors of the Appellant;

• Regardless of whether Rejoice and the Appellant are related entities there was a transfer of the business between Rejoice and the Appellant such that Ms Leung was a transferring employee;

• As a result of Ms Leung's aggregate service with Rejoice and the Appellant, Ms Leung had completed a period of employment of at least the minimum employment period; and

• Ms Leung was a person protected from unfair dismissal.

[4] The Commissioner also expressed a provisional view that Ms Leung had made a mistake in the completion of her application for an unfair dismissal remedy and should have made the application against the Appellant rather than Rejoice and that the evidence supported the exercise of discretion to allow a correction to the application pursuant to s. 596 of the Act so that it is made against the Appellant - Creative Every Day Pty Ld. After expressing this provisional view the Commissioner gave the Appellant and Ms Leung seven days to raise any objection to the proposed correction. The Appellant objected to the correction.

[5] At the commencement of a further hearing on 16 May 2019 for the purposes of the Commissioner hearing from the parties in relation to his provisional view, Mr Chow on behalf of Rejoice sought that the Commissioner no longer deal with the matter on the grounds of apprehended bias. In a Decision issued on 31 May 2019 the Commissioner refused this application.[3]

[6] In a further Decision issued on 21 June 2019[4] (subject of the appeal to which the stay application relates) the Commissioner dealt with the matter of whether he should exercise discretion in s. 586(b) of the Act to correct Ms Leung's unfair dismissal application so that the respondent would be Creative Every Day Pty Ltd (the Appellant in the present case). The Decision indicates that the Appellant objected to the correction being made and asserted that Ms Leung had not made an application to the Commission to amend her application and that because of this the Commission lacked jurisdiction to make such an amendment.

[7] The Commissioner determined that there were factors weighing in favour of his discretion to correct the application and did so, indicating that an Order changing the identity of the respondent to U2019/256 (Ms Leung's unfair dismissal application) would be issued. It appears that the Order was not issued. The Commissioner also indicated that as a consequence of his Decision in relation to the jurisdictional objections, the unfair dismissal application would proceed to the unfair dismissal case management team to progress to arbitration on the merits.

[8] There are eight grounds set out in the Notice of appeal which can be distilled into the following:

• The Commissioner had no jurisdiction to amend the unfair dismissal application without an application from Ms Leung;

• The Commissioner was in error in finding that there was a transfer of business between Rejoice and the Appellant; and

• Those entities did not have an opportunity to respond to that matter before the decision was made.

[9] In relation to the public interest considerations for permission to appeal the Appellant contends that the change of the name of the respondent was outside the power of the Commission and was unfair and that instead of assisting Ms Leung to identify and explore the option of changing the name of the respondent the Commissioner should have determined the jurisdictional objection. The Appellant seeks a stay only in relation to the Order said to have been issued on 24 June 2019 to change the name of the Respondent in U2019/256 to Creative Every Day Pty Ltd.

[10] The Appellant and Ms Leung were required to make written submissions in relation to the stay application. In submissions in support of a stay, the Appellant states that according to the Decision issued on 21 June 2019, an Order was issued that the unfair dismissal application be corrected to name the Creative Every Day Pty Ltd as the Respondent to that application. The Appellant also indicates that Directions have been issued for the hearing and determination of Ms Leung's unfair dismissal application. The Directions require that Ms Leung file and serve her material by 15 July 2019 and that the Appellant (the Respondent in the unfair dismissal application) file and serve its material by 5 August 2019. The unfair dismissal application is listed for hearing in relation to merits on 28, 29 and 30 August 2019.

[11] The Appellant states that it filed its notice of appeal on 12 July 2019 and that the appeal is listed for hearing on 6 August 2019. It is submitted by the Appellant that if its appeal is successful, the hearing on 28, 29 and 30 August will not proceed. Accordingly, the Appellant's material due to be filed on 5 August 2019 will not be required. The Appellant submits that the stay order is required to afford it fairness so that it need not spend time preparing material for a hearing that may not proceed and is able to concentrate on preparing materials for the appeal.

[12] Ms Leung opposes the stay application and states that she has already filed her material in accordance with the Directions and can see no reason why the Appellant cannot keep preparing material for the hearing of the unfair dismissal application while the appeal is heard. Ms Leung also asserts that any further delay in her unfair dismissal application is unfair to her and that the various matters raised by Mr Chow have already delayed the hearing and determination of her application.

[13] The power to grant a stay pending the hearing and determination of an appeal lodged under s.604 is contained in s.606(1), 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."

[14] The principles concerning whether a stay application will be granted are well-established. They are as stated in Edghill v Kellow-Falkiner Motors Pty Ltd:

"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." [5]

[15] However, as Vice President Hatcher pointed out in CFMEU v Collinsville Coal Operations Pty Limited[6] the application of those principles is necessarily subject to it being demonstrated at the outset by the applicant for a stay that there is an operative decision with ongoing effect that is capable of being stayed. It was also stated in that Decision that a stay should have a practical effect. Further, it was suggested that s. 606 does not provide power to stay proceedings (rather than a decision or order) pending the hearing and determination of an appeal.

[16] In the present case the Decision against which the stay is sought had the effect of amending an unfair dismissal application so that the Appellant is the respondent to that application. It is also apparent that what the Appellant actually seeks is to stay the Directions currently in place for the hearing and determination of Ms Leung's unfair dismissal application so that the Appellant is not required to file material in relation to that application before the appeal is determined. In my view, the Directions are not a decision capable of being stayed.

[17] Even if the Directions are a Decision capable of being stayed, I am not persuaded that there is an arguable case with some reasonable prospects of success in respect of permission to appeal and the substantive merits of the appeal. The substance of the Decision under appeal is the exercise of a broad discretion to correct an error or amend an application which appears to have been exercised after the Commissioner afforded both parties an opportunity to raise any objections. It is not necessary to determine this matter in more detail on the basis that I am not satisfied that the balance of convenience favours a stay in the circumstances of this case.

[18] Firstly, the stay as sought in the Notice of appeal will have no practical effect on the basis that the directions are not part of the Decision to which the stay would necessarily attach. The Directions were not issued by the Commissioner who made the Decision subject of the appeal. The file is no longer with the Commissioner and is with the unfair dismissal case management team and the Directions were issued under the processes of the team.

[19] The Directions for the hearing of the unfair dismissal application were issued on 24 June 2019. As previously noted those Directions required that Ms Leung file her material by 15 July 2019. Ms Leung has complied with the Directions and filed her material on 12 July 2019. The Directions also require that the Appellant file its material by 5 August 2019.

[20] The Appellant has had Ms Leung's material in relation to the unfair dismissal application since 12 July 2019 and has known since 24 June 2019 that it is required to file material in response by 5 August 2019. The appeal is listed for hearing in relation to permission only, in the week commencing 5 August 2019. Materials for the appeal will be required to be filed before that date. I accept that the dates for the hearing in relation to permission to appeal and the requirement in the Directions that the Appellant file its material in the unfair dismissal application coincide. I do not accept that this is a matter which favours a stay.

[21] The effect of the stay order sought by the Appellant would be to stay the Directions and allow it to delay filing its materials for the unfair dismissal hearing pending the outcome of the appeal. Such a delay would potentially jeopardise the dates already set for the hearing of the unfair dismissal application resulting in inconvenience and unfairness to Ms Leung.

[22] Whatever the outcome of the hearing in relation to permission to appeal, that outcome will likely be known within a relatively short time after the hearing and well before the hearing of the unfair dismissal application scheduled to commence on 28 August 2019. If permission to appeal is not granted there is no reason why the hearing of the unfair dismissal application should not proceed and it would be unfair to Ms Leung to delay that hearing. The hearing could proceed on 28, 29 and 30 August even allowing for a short extension to the time set out in the Directions for the Appellant to file its material in relation to that matter.

[23] In this regard, the Appellant could request such an extension by email to the unfair dismissal case management team before the date for compliance with the Directions, pointing out that the hearing in relation to permission to appeal is scheduled in the week commencing 5 August 2019 at or around the time that its material in relation to the substantive application is required to be filed. This is a more convenient course of action and I do not consider it appropriate to grant a stay where no attempt has been made to take this course of action.

[24] Even if the extension to the Directions is not granted, the Appellant has had Ms Leung's material since 12 July 2019 and I do not accept that the balance of convenience weighs in favour of a stay in circumstances where it has had time to prepare its material for the substantive application and will have time between filing its material for the hearing in relation to permission to appeal (which must necessarily be filed before that hearing) and 5 August 2019 when it is required to file its material in the unfair dismissal application.

[25] If permission to appeal is not granted, the hearing of the unfair dismissal application can proceed on the scheduled dates with little if any prejudice to the Appellant. If permission to appeal is granted then a further extension can be sought in relation to the Directions at that point and the viability of the hearing dates can be re-assessed.

[26] I am not satisfied that there is an arguable case with some reasonable prospects of success in respect of both permission to appeal and the substantive merits of the appeal. In any event, for the reasons set out above, I am not satisfied that the balance of convenience weighs in favour of granting a stay. The application by Creative Everyday Pty Ltd for a stay order under s. 606 of the Act is dismissed.

[1] [2019] FWC 3402.

[2] [2019] FWC 2981.

[3] [2019] FWC 3669.

[4] 2019 FWC 3402.

[5] [2000] AIRC 785, Print S2639 at [5]

[6] [2014] FWC 4276.

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