Griffith City Council v Romeo

Principles governing stay applications

1. The parties agreed as to the applicable law and that the principles informing the Commission's discretion to grant a stay pending appeal are well known.
2. A convenient summary is found in Transport Industry - Waste Collection and Recycling (State) Award [2000] NSWIRComm 236 in which his Honour Justice Wright set out at [18] - [20]: 18 The principles relevant to the grant of a stay pending the hearing of an appeal against a decision of a member of the Commission pursuant to s 190 of the Act are now well settled. See, for example, the judgment of the Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685, as adopted by the Industrial Commission of New South Wales in Court Session in Water Industry Salaried Officers' Union v Professional Officers' Association (NSW) (1987) 22 IR 178. See also the recent judgment in Green v Brown [2000] NSWIRComm 222. It is clear that special circumstances are not required for the grant of a stay, it being sufficient that the applicant demonstrates a reason or an appropriate case to warrant the relevant exercise of discretion. Although that very limited criterion has been established here, nevertheless, as the authorities make clear, that consideration may be merely the initial consideration as to the grant of the stay. In other words, should that limited criterion or test not be satisfied then the stay application fails in limine . However, should it be satisfied then there may very well be other factors which require consideration. These considerations are helpfully set out in the detailed discussion of the principles set out in the judgment of the Court of Appeal in the first case referred to (at 694 - 695) in the following terms: There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties: Trlin v Marac Finance Australia Ltd (unreported, Court of Appeal, 4 March 1985). The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears: see Supreme Court Rules , Pt 51, r 10; Waller v Todorovic (unreported, Court of Appeal, 21 December 1979). The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it: Attorney-General v Emerson (1889) 24 QBD 56. Where there is a risk that if a stay is granted, the assets of the applicant will be disposed of, the court may, in the exercise of its discretion, refuse to grant a stay: cf Clyne v Deputy Commissioner of Taxation (1982) 56 ALJR 857. Sometimes as a condition of the grant of a stay, where funds are available, a court will impose on the applicant the payment of the whole, or part, to the judgment creditor: Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 … Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay … Thus, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay … Secondly, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of the stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution upon the judgment. 19 I consider that the following considerations derived from the discussion in the Cambridge Credit case are those relevant to apply in this matter: (1) The mere filing of an appeal will not of itself provide a reason or demonstrate an appropriate case nor will it discharge the onus which the applicant bears. (2) A court has an appropriate discretion whether or not to grant the stay and as to the terms that would be fair if a stay be granted. (3) The onus is upon the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all the parties. (4) In the exercise of its discretion all considerations including the balance of convenience and the competing rights of the parties need to be considered and weighed. (5) Where there is a risk that the appeal will prove abortive or nugatory if the stay is not granted then the normal exercise of discretion will result in the grant of a stay. (6) Although, generally speaking, it is inappropriate in relation to an application for a stay to speculate as to the appellant's prospects of success, this does not prevent a court, in the context of considering the specific terms of the stay that will appropriately and fairly adjust the interests of the parties, from making a preliminary assessment as to whether the appellant has an arguable case. 20 It is appropriate to form a very preliminary assessment as to the strength of the appellants' case since, in this case, it is not possible otherwise to assess appropriately the relevant considerations as to balance of convenience. On the other hand, it is not appropriate to come to any more definite view as to those prospects. I consider that the applicants do have an arguable case in relation to the appeal. It cannot be said that their case is futile. On the other hand, it is also to be observed that their case is not without some real difficulties.
3. As her Honour Justice Schmidt set out in Carlton and United Beverages Limited v Phillip Brunt [2005] NSWIRComm 338: 5. … What must be considered when a stay is sought are matters such as whether the appellant has discharged the onus which falls upon it to demonstrate the need for the stay; what the balance of convenience requires, given the competing rights of the parties; whether there is a risk that the appeal will prove abortive or nugatory if the stay is not granted; whether, on the basis of a preliminary assessment, the appellant has an arguable case; and whether justice requires that terms be imposed, if the stay is granted.

Preliminary assessment of prospects of success of the appeal

1. I am prepared to accept, and without making findings on these matters, that, on its face, the appeal raises some important questions relevant to the grant of leave, and the Council has an arguable case in relation to the appeal.
2. Having accepted that the Council's case is not futile, I note for the purpose of considering the specific terms of the stay that will appropriately and fairly adjust the interests of the parties, that the Council made no submissions on the impracticability of reinstatement before Commissioner Sloan. Consequently, Commissioner Sloan found that reinstatement would not be impracticable; and, relevantly, this finding is not challenged in the appeal. If the Full Bench is satisfied that Commissioner Sloan erred in his determination that the dismissal was unfair, then the question of the impracticability of reinstatement will not arise. However, the Council may be successful on some grounds and not others, and where there have been no submissions made on impracticability: see [87] - [89] of the Decision, the utility of the appeal may be limited. Although I have identified this difficulty and I consider it is relevant in the weighing of the parties' interests, it is not appropriate that, as a single member of the Full Bench determining this stay application pursuant to s 190 of the Industrial Relations Act 1996 ("Act") and without the benefit of properly argued submissions, I come to a more definite view as to prospects.

Balance of convenience

1. If the Commission does not grant the stay, the Council must, in accordance with Commissioner Sloan's orders, return Mr Romeo to work as a Team Leader - Traffic Facilities, or if Mr Romeo agrees, as he has indicated that he would, keep him on special leave.
2. Mr Romeo submits that the agreement that he be placed on special leave until determination of this question, weighs against a stay and further that it must have been within the Council's contemplation that a stay may not be granted and as such the paid special leave may continue until the appeal proceedings are finalised.
3. I consider that the parties agreement that Mr Romeo remain out of the workplace upon the payment by the Council of special leave, pending the hearing and determination of the appeal does not, in itself, weigh in favour, or against, the granting of a stay. The parties have reached a suitable agreement for a short period to enable the Commission to decide whether a stay should be ordered, and this agreement has a cost to each.
4. On the one hand, while Mr Romeo has indicated that he is willing to remain on special leave until the determination of the appeal, as he submits, the denial of actual work prevents him from obtaining the benefit of "the satisfaction of employment, the feeling of self-worth that it can generate and the maintenance of [his] skills to which their exercise would contribute": Blackadder v Ramsay Butchering Services Pty Ltd (2005) 221 CLR 539 at [32].
5. On the other hand, if the Council were to keep Mr Romeo on special leave that would impose an ongoing cost to the Council and its ratepayers without any corresponding benefit.
6. Mr Romeo's evidence discloses that the loss of his income reduced the family income by approximately 61%, and that while his wife sought to increase her hours while he was unemployed, she was unsuccessful. Mr Romeo has not, in this application provided any details as to other employment he has sought or obtained, although he has referred to receiving a Jobseeker Payment. Mr Romeo deposed that his children do not work but does not say why. However, I accept that Mr Romeo and his family suffered financial stress following his dismissal and that further financial difficulties will be presented to Mr Romeo if a stay of the reinstatement order was granted.
7. The Council submits that if it were to be successful there is no undertaking from Mr Romeo that a return of the monies paid would be forthcoming which I assume can only be relevant to a period where Mr Romeo was paid while not working such as while on special leave, not if Mr Romeo returned to work.
8. Should I accept that a stay should be granted and Mr Romeo should not be returned to the workforce pending the determination of the appeal, I am empowered pursuant to s 190 of the Act to make a stay order on such terms as I consider appropriate. While I did not put this to the parties, in my view, this could include conditions that Mr Romeo be paid for a period and that he be required to repay the amount should the Council be successful in the appeal. Therefore, I do not consider the failure by Mr Romeo to give such an undertaking to be significant in weighing the balance of convenience.
9. The Council submits that given Mr Romeo's evidence, and the submissions made on his behalf, about his financial position, regardless of an undertaking or a condition of the stay requiring repayment, if the appeal is successful, the Council may never be able to recover those monies and Mr Romeo will be unjustly enriched if the Council is successful in the appeal. There is, on the basis of the limited financial evidence placed before the Commission and Mr Romeo's submissions, some force to the submission that Mr Romeo may have difficulty making such a repayment. Although it is noted that the Council is not a small organisation and could enter into terms for repayment.
10. The Council submits that if a stay was not granted, absent an agreement for Mr Romeo to be placed on special leave then it would be forced to employ an employee who has engaged in repeated misconduct of a serious nature, namely dishonesty, and in whom it has lost trust and confidence. In support of this submission the Council relies on the letter from Brett Stonestreet referred to by Commissioner Sloan at [87] of the Decision. The Council's submissions do not refer to any other evidence that was before the Commissioner to support this position, nor did the Council seek to tender any fresh evidence in respect of this application for a stay. I also note the evidence from colleagues of Mr Romeo who supported his return to work referred to at [86] of the Decision.
11. Commissioner Sloan found at [87] - [89] of the Decision: 87 The Council did not make any submissions as to what remedy ought to be awarded in the event that the dismissal was found to be harsh, unreasonable or unjust. No evidence was led by the Council which would support a finding that Mr Romeo's reinstatement would be impracticable. I acknowledge that in his letter of 12 October 2022 Mr Stonestreet expressed the view that Mr Romeo's behaviour was "destructive of the mutual trust between the employer and employee". However, little weight can be attached to that view in light of my finding that the dismissal was unjust. 88 In the circumstances of this case I find the following passage from Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117 to be informative: "35. The appellant sought reinstatement and compensation for wages lost as a result of the dismissal. In considering the practicability of reinstatement, we are very mindful of the approach adopted by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at pp 191-192 where their Honours observed that 'each case must be decided on its own merits' but that 'in most cases, the employment relationship is capable of withstanding some friction and doubts'. As their Honours observed further, 'what is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive' and that 'if the employer is of even average fair-mindedness, (the problems) are likely to prove short-lived'. Those comments have been cited with approval by Full Benches of this Commission in Hollingsworth v Commissioner of Police (No 2) (88 IR at pp 341-342), CCH Australia Ltd v Bowen (1998) 79 IR 206 at pp 217-218 and Oswald v New South Wales Police Service (1999) 90 IR 42 at pp 67-68. We affirm the approach as appropriate in the present case…" 89 On the evidence and submissions before me, there is no basis to conclude that reinstatement would be impracticable. I propose to make an order that Mr Romeo be reinstated.
12. Commissioner Sloan's finding that there was no basis to conclude that reinstatement would be impracticable is not challenged in the appeal, as was acknowledged by Mr Britt at the hearing. As noted above, I accept that if all or certain grounds of the appeal are made out then the question of reinstatement may not arise. However, the Council may have difficulty having the reinstatement order quashed unless the Full Bench determines that each of Commissioner Sloan's findings that the dismissal was harsh, unreasonable and unjust are infected with error. In my view this is relevant to balancing the interests of the parties.
13. The Council says that the appeal will prove abortive or nugatory if the Commission was not to grant the stay and as a result Mr Romeo was returned to work pending the determination of the appeal. I take this to mean that the Council will be irredeemably prejudiced and that a stay is necessary to preserve the subject matter of the appeal, which is the test.
14. I do not accept that if an employee with 23 years' service is returned to the workplace to perform his duties and for which he will be paid, the Council would be irredeemably prejudiced. It might be argued that if Mr Romeo returns to work and there are no issues with the performance of his duties or with his relationships with colleagues, it would be difficult for the Council to argue that reinstatement is impracticable if the Full Bench were to consider the practicability of reinstatement. However, the Council has not put the question of impracticability of reinstatement in issue in the appeal, and the Full Bench is not asked to reconsider this question.
15. It is possible that if the Council is successful in the appeal and the matter is remitted to Commissioner Sloan, the fact that Mr Romeo has returned to work may have some effect on Commissioner Sloan's consideration of the matter. However, I do not accept that returning Mr Romeo to work would render the appeal nugatory in the sense that the appeal will be "of no force or effect; futile; vain": Macquarie Dictionary online. If the Council is successful in establishing error by Commissioner Sloan such that the Commission (whether it be the Full Bench or Commissioner Sloan on remittal) determines that Mr Romeo's dismissal was not unfair then there can be no question of remedy and Mr Romeo's employment will end.
16. The Council is responsible for the proper use of ratepayers' money but it is not an employer with immediate financial constraints. Other than the loss of trust and confidence asserted by Mr Stonestreet on behalf of the Council, and the asserted nugatory impact of reinstatement, there have been no other reasons put to me as to why Mr Romeo cannot perform work and be paid until the hearing and determination of the appeal.
17. Despite the views expressed by Mr Stonestreet, I am not satisfied that if the Council were to approach Mr Romeo's return to work with fair-mindedness, the parties could not make the relationship viable and productive despite some friction and doubts which may exist initially on the return to work. This was the view of Commissioner Sloan who, as the first instance decision-maker, had the benefit of observing Mr Romeo and Mr Stonestreet.
18. Mr Britt acknowledged that the role that Mr Romeo performed remains and that there is work for Mr Romeo to perform, unlike the circumstances in Bridges Services Co Pty Limited and Brett Daniel Taylor [2003] NSWIRComm 289.
19. It has not been argued in this matter, as it was in Griffith City Council v USU (on behalf of O'Hara) [2006] NSWIRComm 233 ("Griffith No 1"), that given the highly difficult personal situation accorded to the employee in that case by many months off work, that it would not be in the interests of the employee or his health for him to be reinstated for a short period if, at the conclusion of the proceedings, the Council's appeal was upheld and he had to leave his employment. In that case, Council relied on evidence as to the impact of reinstatement on the Council and its employees and its culture and the abolition of the relevant employee's role. It is also relevant that in that case, the Council put forward a basis for the granting of the stay which included payment to Mr O'Hara although there was dispute as to the calculation or amount of that payment: see [13] and [20] - [23].
20. In comparing this matter to Griffith No 1 I do not intend to imply that if the Council had sought to rely on evidence about the impracticability of reinstatement at this hearing on the stay I would have accepted this evidence, as to do so would likely be tantamount to attempting to conduct a different case than that which was argued before Commissioner Sloan. I intend only to highlight the difference between the circumstances considered by his Honour Justice Wright, the then President of the Commission, and the matters I have weighed in balancing the parties' competing interests.
21. The Council seeks a stay of the orders, not a conditional stay which would allow for payment of some income to Mr Romeo. The evidence about Mr Romeo's financial circumstances discloses a need for cash flow. Assuming that a decision is given within three months of the appeal being heard, Mr Romeo could still be without income for a number of months.
22. Any stay which is ordered must be fair to both parties. When weighed against the prejudice that the Council submits, that is that Mr Romeo may not have the funds to repay the amount should the appeal be successful, and the difficulty of returning to work a person in whom Mr Stonestreet, on behalf of the Council, has lost trust and confidence, I am not satisfied that what is proposed by the Council, that is that the reinstatement order be stayed and Mr Romeo receives no payment from the Council, achieves fairness to both parties, especially having regard to the identified difficulties in utility of the appeal.
23. The Council has not satisfied the onus to demonstrate why a stay should be granted.

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