Fair Work Act 2009

s.604 - Appeal of decision

Appeal against the Decision and Order [ [2023] FWC 439] of Commissioner McKenna at Sydney on 28 March 2023 in matter U2022/9219 - s. 606 Application for stay of decision - Stay issued by consent of the parties.

[1] This Decision concerns an application for a stay order by DP World Sydney Limited T/A DP World (Appellant). The stay order is sought pursuant to s. 606 of the Fair Work Act 2009 (the Act) in relation to a Decision and Order made by Commissioner McKenna on 28 March 2023. In the Decision, the Commissioner determined that Mr Anthony Montana (Respondent) had been unfairly dismissed and ordered that he be reappointed to the position in which he was employed by the Appellant immediately before the dismissal, at the same grade and at the same location the Respondent previously worked. The Commissioner further ordered that the reappointment be effected with continuity of the Respondent's employment. The Order is to take effect within 21 days - on 18 April 2023.

[2] The Appellant filed a notice of appeal on 14 April 2023 and sought a stay order on an urgent basis. Directions were issued requiring the Appellant to advise the Commission and the Respondent of any steps the Appellant proposed to take to preserve the Respondent's position if the appeal is not successful. The Respondent was also directed to advise whether he consents to the stay being granted, having regard to the basis on which the stay is sought and any further steps the Appellant may take to preserve his position.

[3] Undertakings were provided by the Appellant to preserve the position of the Respondent pending hearing and determination of the appeal, as follows:

1. The Appellant undertakes to pay the Respondent his wages (35 hours per week at the rate for a Grade 2 employee identified in clause 11 of the DP World Sydney Enterprise Agreement 2020) from 18 April 2023 until the date on which the appeal is determined; and
2. The Appellant undertakes not to seek to recover any monies paid to the Respondent in accordance with these undertakings, in the event that the appeal is successful.

[4] The Respondent has confirmed that he consents to the stay being ordered, subject to the undertakings provided by the Appellant. As such, the present application is not contested.

[5] 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:

"606 Staying decisions that are appealed or reviewed

(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."

[6] The principles concerning whether a stay application will be granted are well-established and were stated in Edghill v Kellow-Falkiner Motors Pty Ltd as follows:

"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." [1]

• [7] As to the approach to be taken by the Commission in assessing whether the Appellant has an arguable case, the Commission stated in Supreme Caravans Pty Ltd v Pham[2], as follows:

"...the Commission in determining a stay application must assess the strength of the appellant's case without the benefit of hearing the appellant's full argument and usually without the opportunity to undertake a full analysis of the case materials. For that reason it is necessarily a preliminary assessment only."

• [8] The prima facie position in relation to the balance of convenience is that the status quo should be preserved. Although this may be the status quo pre- or post-decision, in Coal and Allied Operations Pty Ltd v Crawford[3] a Full Bench of the Commission said:

"...[t]he statements to be found in various decisions that the Commission normally grants a stay to restore the status quo pending an appeal, simply recognize that in most cases the balance of convenience favours the grant of a stay. This is because of the difficulty which may be encountered if a stay is not granted, in restoring the parties to their original position, if the appeal is ultimately successful."[4]

[9] There are 4 grounds set out in the Notice of Appeal. For present purposes, it is sufficient to note that the grounds of appeal contended by the Appellant concern errors said to have been made by the Commissioner in relation to her approach to, and consideration of, whether there was a valid reason for the dismissal related to the Respondent's conduct and capacity in s. 387(a) of the Act and whether the Respondent was notified of that reason in s. 387(b) of the Act. On a preliminary assessment, I am satisfied, that there is an arguable case with some reasonable prospects of success.

[10] As to the balance of convenience, the Commissioner ordered that the Appellant reappoint the Respondent, with continuity of employment. Accordingly, the grant of a stay, in the context of the undertakings provided by the Appellant, will deal with the difficulty which may be encountered if a stay is not granted, in restoring the parties to their original position, if the appeal is ultimately successful, while preserving the Respondent's position in the event that it is not.

[11] The balance of convenience, therefore, favours the granting of the stay. I therefore order a stay of the Decision and Order of the Commissioner based on the undertakings given by the Appellant. An order to that effect will issue separately.

[1] [2000] AIRC 785, Print S2639 at [5]

[2] [2013] FWC 4766.

[3] (2001) 109 IR 409.

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