Fair Work Act 2009

s.604 - Appeal of decisions

S. 606 Application for stay of decision - Approach to determining whether to stay a decision - Stay will not have utility in the present case - Application for a stay refused.

[1] Dr Daniel Krcho (the Appellant) seeks permission to appeal and appeals a Decision of Commissioner Johns, described by the Commissioner as an interim decision, issued on 21 August 2020.[1] The interim decision concerns an application made by the Appellant under s. 773 of the Fair Work Act 2009 (the Act) asserting that his employment had been unlawfully terminated by the University of New South Wales t/a UNSW Sydney (the Respondent) and an objection by the Respondent on the basis that the Appellant's application was barred by s. 723 of the Act, on the basis that it could have been made under s. 365 of the Act.

[2] In the interim decision, the Commissioner set out the grounds upon which the s. 773 application had been made and indicated his view that the reasons advanced by Dr Krcho for the termination of his employment would have entitled him to make a general protections application under s. 365 of the Act, with the exception of the claim that Dr Krcho had been discriminated against on the ground of political opinion. In relation to that ground, the Commissioner expressed a view that Dr Krcho's construction of the term "political opinion" was novel, but that this was not relevant to whether the claim could be advanced.

[3] As a result, the Commissioner expressed the view that the s. 773 application was "largely incompetent" other than with respect to the "political opinion" ground. The Commissioner gave Dr Krcho a period of time - until 4.00 pm on 28 August 2020 - to decide whether he wished to correct or amend his s. 773 application so that it was made under s. 365 of the Act or alternatively to limit his s. 773 application to a claim that Dr Krcho was dismissed because of his political opinion. This time frame was later extended to 4.00 pm on 11 September 2020.

[4] The Commissioner indicated that it was entirely up to the Applicant whether he wished to amend his s. 773 application and that if the Applicant did so he would invite UNSW to respond to it. The interim decision also indicated that if the Applicant did not amend his s. 773 application, the Commissioner would issue a final decision in relation to the UNSW's jurisdictional objection.

[5] On 10 September 2020, Dr Krcho filed his notice of appeal and sought a stay of the interim decision under s. 606 of the Fair Work Act 2009 (the Act). This decision concerns the stay application.

[6] On 11 September 2020 I issued a Statement and Directions indicating that I had formed a provisional view that there would be no efficacy in granting a stay and setting out the basis for my provisional view. My provisional view was that that no final decision had been made in relation to Dr Krcho's s. 773 application and accordingly there was no utility in granting a stay. Further, it was apparent from the interim decision that the final outcome will be determined subsequent to Dr Krcho deciding how he wishes his application to proceed and that if Dr Krcho is dissatisfied with the outcome of the matter he can also seek permission to appeal that application.

[7] Dr Krcho was invited to respond to the matters set out in the Statement and was informed that if he did not do so by 5.00pm on 11 September 2020 I would confirm my provisional view and dismiss the stay application.

[8] Dr Krcho filed a submission in response in accordance with my directions disagreeing with my provisional view. Dr Krcho submits that the decision was indeed final and had an ongoing operative effect, on the basis that the Commissioner had stated he would proceed to issue a final decision in relation to the University of New South Wales' application to have Dr Krcho's unlawful termination application dismissed.

[9] I instructed my Associate to respond to Dr Krcho requesting that he confirm whether he consented to the stay application being determined on the material currently before the Commission, or whether he sought to be heard further at a hearing. Dr Krcho informed my chambers that he was content for the stay application to be determined on the papers. I proceed to determine Dr Krcho's stay application on that basis.

[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), 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] 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." [2]

[12] However, as Vice President Hatcher pointed out in CFMEU v Collinsville Coal Operations Pty Limited[3] 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.

[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] I confirm my provisional view and refuse Dr Krcho's stay application. I do so for the following reasons.

[15] In the present case the decision against which the stay is sought was that Commissioner Johns would proceed to make a final decision in relation to Dr Krcho's application, which was subsequent to Dr Krcho deciding how he wished his application to proceed.

[16] I do not accept Dr Krcho's submission that a final decision has been made with an ongoing operative effect that is capable of being stayed. All that has occurred is that the Commissioner has stated that absent the filing of an amended application, the Commissioner would proceed to issue a final decision in relation to an application made by UNSW to have Dr Krcho's unlawful termination dispute application dismissed. I also do not accept Dr Krcho's submission that this statement means the Commissioner will inevitably dismiss the application.

[17] There has been no final decision made in relation to Dr Krcho's application. As previously stated, if Dr Krcho is dissatisfied with the final decision once it is made, he can also seek permission to appeal and seek a stay of that decision.

[18] I also do not accept Dr Krcho's submission that refusing the stay removes his right and ability to be fully heard, and to have "the question of law" properly decided by the Commission. Dr Krcho's present application seeking to appeal the interim decision will be listed for hearing before a Full Bench of the Commission.

[19] A stay will not alter the status quo in any substantive manner or in a manner relevant to the appeal. Further, it cannot be said that the balance of convenience favours the grant of a stay.

[20] For these reasons I refuse Dr Krcho's application for a stay of the Decision in [2020] FWC 4435. Dr Krcho should note that my decision to refuse a stay of the decision is not based on any finding about the merits of his appeal against the interim decision or any subsequent appeal he may file if dissatisfied with any final decision.

[1] [2020] FWC 4435.

[2] [2000] AIRC 785, Print S2639 at [5]

[3] [2014] FWC 4276.

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