7.7 There has been no medical evidence, or evidence from other appropriately trained professionals, which certifies that Mr O'Hara does not pose a risk when working, driving vehicles or being on-call.
12 The affidavit also indicated (paragraph 8) that the appellant's instructions to its lawyers are that if the stay was granted, it would pay Mr O'Hara the ordinary remuneration he would be entitled to be paid, if reinstated to his former position at Council, less any amount earned by him in any other employment, until the determination of the appeal or further order of the Full Bench.
13 One of the significant issues in the stay application was the basis proposed by Council as to the terms of any stay. In particular, reliance was placed by the USU upon the fact that, in the period immediately prior to the termination of his employment, Mr O'Hara was on an on-call roster for approximately 23 weeks in the previous 12 months and that, at the time of his dismissal, he had been on-call for a continuous period of about six weeks. The standard situation (if one existed) was that Mr O'Hara was intended to be on a one in five roster, that is, it was intended that he be on-call one week out of five.
14 The respondent union vigorously opposes the granting of a stay. It submitted that the Commissioner's decision was correct, and that was a very important and material consideration in considering the question of a stay. Heavy reliance was placed upon the social and personal dislocation that Mr O'Hara had suffered as a result of this dismissal; he had been without employment for approximately 13 months and, if the stay was granted, that inappropriate situation would continue.
15 The union also placed evidence before the Commission that, although he had some 10 months casual employment with the Murrumbidgee Water Authority after his dismissal, Mr O'Hara has had no employment at all for the last three months. It was also noted that he now has a current driver's licence, the 12 months disqualification imposed by the Magistrate at Griffith for the DUI offence having now run its course. The union's evidence also indicated Mr O'Hara had attended one counselling session regarding his alcohol problems and that he has made an appointment to attend another.
16 The relevant principles as the grant of a stay have been the subject of some debate before me, but, as they do not appear to be in doubt or in issue, I do not intend to refer to them in any great detail. It is clear that appropriate weight must be given to the decision appealed from and that the filing of a Notice of Appeal does not, of itself, operate in any way to nullify the weight which should be given to the decision in favour of the respondent to the appeal. However, if there is a real prospect that the appellant's right to appeal would be regarded nugatory if the stay is not granted, that would usually operate in favour of a stay. Nevertheless, I do not find that the granting of a stay in this matter would result in the appeal being nugatory. It seems to me there is a proper basis, however, to grant a stay.
17 I am prepared to accept, without making a finding to that effect, that the appellant has an arguable case on the appeal and that the appeal does raise some difficult and important questions. On the other hand, it should be said that the appeal has some difficulties in that some of the grounds that the appellant wishes to put forward in the appeal are problematic. A number of those matters which are set out in the paragraphs earlier cited, relate to a reorganisation of Council, which appears to have been occurring during the course of the proceedings, but was not the subject of any evidence before the Commissioner. In Plummer v Stannard Bros Launch Service Pty Limited (2005) 145 IR 111 the Full Bench said:
In view of the conclusion we have reached on the relief appropriate on appeal, it is not strictly necessary for us to determine whether the circumstances of the reorganisation of the respondent employer would, of itself, have made an order for reinstatement of the appellant impracticable for the purposes of s89(5) of the Industrial Relations Act . However, in view of the issue being raised and strenuously pressed, we consider that it is appropriate to deal with it. There are two reasons why, if it had been relevant, we would not have considered that this material would have provided a factual basis to find that it was impracticable to reinstate the appellant. The first reason relates to the timing of the placing of the evidence before the Commission. Without reciting the chronology in detail it is clear that there was sufficient time between the decision being reserved, the reorganisation taking place and the decision being given, for an application to be made by the respondent to re-open the proceedings to place the further evidence before the Commissioner. To make a finding in the respondent's case on the basis of the additional evidence on appeal would be tantamount to permitting the respondent to put forward a different case on appeal to that mounted at first instance.
18 Although that passage may be, strictly speaking, obiter dicta, nevertheless, it does represent a considered decision by the Full Bench of the Commission on an important matter. It may well be that some of the matters relied upon by the Council will thus face some hurdles in being successful on appeal, in light of the approach in Plummer v Stannard Bros.
19 The concerns expressed by the union as to the social and personal dislocation suffered by Mr O'Hara are, in my view, very important. Nevertheless, they do have another complexion to them, as argued by the appellant Council; that is, if one accepts that Mr O'Hara has been placed in a highly difficult personal situation by 13 months off work, the Council argues that it would not be in his interests for him to be reinstated for a short period if, at the conclusion of the proceedings, the appellant's appeal was upheld and he, therefore, had to leave the employment. It seems to me that those submissions require careful consideration. I am very sympathetic to Mr O'Hara's situation, but I do not consider it is either in his interests, or that of the appellant Council, to create a situation where it may be possible, if it transpired that Council's appeal was successful, that Mr O'Hara did return to work for only a very short time. Although there is the real possibility that Council's appeal may be successful, it is also quite possible it would be unsuccessful. In those circumstances, the prudent course seems to be to grant the stay.
20 The next issue relates to the terms upon which the stay is to be granted and I have already noted the terms which Council has put forward as the basis a stay should be granted. It seems to me, in principle, the approach by Council is correct, but what has loomed large in the various submissions on this issue is the on-call situation and that concerning Mr O'Hara prior to his dismissal and the impact of that on his usual pay.
21 The Commissioner's decision (see paragraph [7]) records that, at the time of the termination of his employment, Mr O'Hara earned $780 per week and received an additional $150 per week whenever on-call. The appellant says, in view of reorganisation, if he did return to work he would not receive the on-call allowance; however, as indicated earlier, that part of the Council's submission may have to face for its acceptance in the appeal the Full Bench decision in Plummer v Stannard Bros.
22 It seems to me, accepting the approach of Council in principle, the next question is: what, in a practical sense, should be regarded as Mr O'Hara's normal or usual pay for the purpose of imposing the relevant conditions on the granting of a stay? I consider that the matters that should be given appropriate weight are the significant periods of on-call that were assigned to Mr O'Hara in the 12 months prior to the termination of his employment, but also, the reorganisation which has resulted in the practical abolition of on-call. I make this last observation purely for the purpose of the stay application, notwithstanding that, in the appeal itself, the reorganisation may have to be considered in light of the approach in Plummer v Stannard Bros.
23 In those circumstances, I consider that Mr O'Hara's normal or usual pay for the purpose of the granting of the stay should be his ordinary weekly hours plus 40 per cent of the on-call allowance. If there has been no adjustments in the rate of pay set out in the Commissioner's decision, that would represent a rate of pay of $780 plus 40 per cent of $150; that is $840 per week. I, therefore, grant a stay on that basis.
24 The appellant has leave, if it wishes to do so, to take out a formal order to that effect. That, however, may not be necessary, unless there be some dispute as to the matter.
25 I also order that the stay be granted on the basis of a stay of order 4 as set out in the Commissioner's decision. It seems that is the only order that requires to be stayed. If the parties, upon consideration, consider a stay of any other order is necessary, they should contact my Associate so any appropriate adjustment may be made in chambers. The stay will be operative from 10 July 2006.