s.604 - Appeal of decision

Linda Margaret Stevens, Matthew Kenneth Stevens

Appeal against decision [2023] FWC 1096 of Deputy President Lake at Brisbane on 31 July 2023 in matter numbers U2023/1198 and U2023/1199 - stay granted

• [1] This decision concerns an application by Pecker Maroo Verano Pty Ltd for a stay order pursuant to s 606 of the Fair Work Act 2009 (Cth) (Act) pending determination of an appeal of two matters jointly determined.

• [2] The appeal concerns a decision[1] and an order[2] of Deputy President Lake at Brisbane on 31 July 2023. The decision concluded that it was appropriate to order the payment of compensation to the respondents as a remedy for their unfair dismissal by the appellant. The order was for the payment of compensation by the appellant to each respondent. It is noted that the appeal was filed outside of the 21-day period prescribed by r 56(2)(a) of the Fair Work Commission Rules 2013.

• [3] The appellant seeks a stay of the whole of the decision pending determination of the appeal. Notwithstanding that the appellant has identified the print number for both the decision and the order in its Form F7, it states that the "orders have not been received YET." The appellant confirmed at the commencement of the stay hearing on 6 September 2023 that its appeal concerns the compensation order.

• [4] The appellant was represented at the stay hearing by its acting General Manager, Mr Geoff Barden, rather than Mrs Stephanie Charlton who conducted the proceedings at first instance and filed the appeal. The respondents were self-represented and oppose the stay.

• [5] Section 606 of the Act gives the Commission the discretionary power to stay the operation of the whole or part of a decision the subject of an appeal. Section 606(1) of the Act provides as follows:

"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] In Edghill v Kellow-Falkiner Motors Pty Ltd,[3] Vice President Ross (as he then was) provided the following formulation for determining stay applications:[4]

"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."

• [7] Accordingly, both "elements" are necessary conditions to the grant of a stay.

Arguable case with some reasonable prospect of success

• [8] In determining a stay application, the Commission 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. Accordingly, the task of assessing whether the application raises an arguable case with some reasonable prospect of success is to be undertaken against that context.

• [9] Issues of fairness may arise in circumstances where an unrepresented appellant is rigidly confined to its grounds of review in a notice of appeal, whether at a preliminary stage or upon final determination. It may be that matters addressed in the grounds of review are intended to be directed towards a particular type of error, but the language used by the appellant is imprecise, or the legal concepts intended to be invoked are not clearly identified. Nevertheless, it remains necessary for an appellant seeking a stay to establish an arguable case with some reasonable prospect of success. The mere filing of an appeal is insufficient to satisfy the necessary conditions for the grant of a stay.

• [10] For reasons that will become apparent, it is necessary to set out the grounds of appeal which are, without alteration, as follows:

1. Linda and Matt Did not follow proper due process to take 2 weeks annual leave- no notice given- just abandoned their post with no notice.
2. Linda had a Dr certificate that was dated 5 days after she abandoned her job. Matt was not sick and there was no reason for both of them to abandon their post.
3. Matt & linda were not in the office for the correct hours of operation and there were any complaints from the body corporate and owners.
4. Linda pretended to have an accident - but in fact had PLANNED surgery on her foot that put her our of work for 3 months- hence the business and resort suffered and was noted by the body corporate that management was not doing a good job - to the point that body corporate refuse to extend our option and now we have no business to sell. Linda lied on her application and said she was fit and had no issues that would detain her from performing her duties- the resort had MANY STAIRS and NO LIFTS- Linda could not possibly perform her duties for 3- 4 months - checking rooms and the cleanliness of the apartments. But for the fact that Linda lied at her interview they would not have been given the contract for managing the Verano Resort.
5. Linda also lied about not smoking- when in fact she chain smoked and this was noted by many owners including complaints from guests and owners who could smell the smoke and also saw Linda smoking. It was a specific requirement that Verano is a NON-SMOKING resort- plus there are signs up on all the gates and entrances.
6. Matt & Linda had their family come over from New Zealand and stayed at the resort for 3-4 months- using other owners apartments without paying- hence stealing money from our business and other owners. We had complaints from owners stating their apartments were cleaned and to the point beer bottles and food was still in the wardrobes- and owners wanted to know why Linda's childrens' names were on their Netfllix TV in their apartments
7. Matt & linda had 2 extra security keys cut in early October 2022 and still have not handed back all of the security keys to Verano Resort
8. 1st time -Matt & Linda put in writing that they were leaving the resort and abandoning their post 2 weeks before XMAS- the busiest time of the year. 2nd time -Matt & Linda rang us to say they were quitting there and then. The THIRD THREAT for abandoning ship - I found out from Geoff Barden to say Matt & Linda have told him to get over to the office same day o a Saturday- "they were out of there"-
9. Proper due process for Annual leave must be in writing with notice and approved by the directors. The week before Annual leave they must also send a reminder to advise they will be away . THERE MUST BE RELIEF MANAGERS ORGANISED for the time off- this was not done and Matt & Linda left anyway - abandoning their post with no relief and no notice and no approval. Matt was not sick and nor was Linda
10. Linda spent much time in hospital for other health reasons not just her leg- again not being able to perform her duties. Again the resort deteriorated to the extent that the body corporate and owners had had enough and refused to extend our option.- based on the neglected stated of the resort.
11. Stephenie & Stephen had to pay a gardener aprox $3000 to assist in getting the gardens back to an acceptable presentation- however this is work that we had already paid Matt 7 Linda to do.
12. Linda had a foul mouth and the swearing was noted by many guests and owners that she was not professional and could not believe some of the arguments and fights coming from their apartment and in the stair wells and in the car park.
13. When Matt & Linda abandoned their post and had threatened us for the 3rd time - we had no choice but to terminate their contract because of all the reasons stated above. We gave them plenty of opportunity and even paid to have their work done by others.
14. The body corporate and many owners were not happy along with Directors of Pecker Maroo Verano - just how run down and bad the resort and business had become.

• [11] At the hearing of the stay, Mr Barden withdrew the allegation made in ground seven.

• [12] The appellant's grounds of review merely state facts and do not directly allege any error in the decision. However, in his oral submissions, Mr Barden contends that these grounds represent the issues raised by the appellant at first instance that were not taken into account in the decision. While Mr Barden was excluded from the hearing at first instance until he was called to give evidence, he submits that the appellant provided evidence of performance issues which were not considered. Further, Mr Barden submits that the respondents engaged in serious misconduct by (a) lying, (b) smoking, and (c) abandoning their post, and these matters were not taken into account in the decision.

• [13] The grounds of review largely reflect what the Deputy President identified in the decision as "materials regarding the dismissal," filed by the appellant at first instance. The Deputy President observed that the appellant "argues that the termination of the [respondents] was valid on the basis that they did not perform the role they were required to do." The appellant's submissions are extracted without alteration at [25] of the decision below. As is apparent, they raise substantially the same matters as the grounds of review:

"Points for termination of Matt & Linda Stevens contract with Pecker Maroo Verano Pty Ltd

• the Dr's certificate written to Linda Stevens stating to have 2 weeks holiday was 5 days AFTER Matt & Linda demanded to go on holidays for 2 weeks.
• Why did Matt Stevens have to go on a holiday when he was not sick?
• Matt & Linda Stevens gave us an ultimatum on 3 separate occasions and threated us that if we did not comply with their demands they would abandon their post and terminate their contract with Pecker Maroo Verano Pty Ltd.
• Matt & Linda's work performance and standards were not of a satisfactory standard to the owners and the body corporate and management of Pecker Maroo Verano Pty Ltd
• we had to pay an extra $3000 to an outside contractor to bring the resort up to standard required by body corporate in November 2022.
• The body corporate has also denied our option renewal request based on the poor performance of the onsite managers - Matt & Linda Stevens.
• As a NON- smoking resort - the owner of unit 5 complained about continuous smoking coming from the managers unit.- Unit 1. Linda admitted she was still smoking. Matt also admitted that Linda still smoked
• Bad language - heard by many people - guests and owners by Matt & Linda Stevens
• Use of owners apartments FREE OF CHARGE for Matt & Linda's family over 3 months duration. - Sep to Dec 2022 - this equates to theft.
• Correct Office Hours stated on the contract and stipulated by the body corporate were not adhered to by Matt & Linda Stevens- the office was often unattended after 12.00pm many days. Owners would attend to clients and show them how to access the security box to gain access to their units."

• [14] In the decision, the Deputy President summarised the appellant's allegation that the respondents "lied about Mrs Stevens having an accident by falling out of a car which resulted in a foot injury."[5] Further the decision identifies that the appellant submitted statements from Mr Barden and Mrs Sue Ann Barden in support of its claim.[6] Mrs Barden was not called to give evidence at first instance and the content of her statement, and that of Mr Barden, is not otherwise addressed in the decision.

• [15] In addition, the Deputy President referred to a "response" provided by the Chairman of the owners corporation for the resort operated by the appellant. The response addresses matters relating to the respondents' performance including "upkeep issues" regarding the footpaths, lawn and watering system, the maintenance of the gardens and the requirement to replace a door.

• [16] A preliminary review of the grounds of appeal demonstrates that the matters raised in grounds two to five, part of six concerning the use of the resort for the respondents' family, eleven, twelve and fourteen are matters raised by the appellant in its submissions extracted at [25] of the decision. Similarly, grounds one, eight and nine concern the issue of "abandonment" in which it is alleged that the respondents abandoned their post on three occasions. This issue is also identified in the appellant's submissions.

• [17] At the stay hearing, Mr Barden said that he gave evidence at first instance in relation to the matters which are the subject of appeal grounds one, two, eight and nine. The matters extracted at [25] of the decision largely appear to have been the subject of Mrs Charlton's oral evidence.

• [18] The appellant's case is, in general terms, an allegation that the Deputy President failed to consider evidence or submissions. With the exception of ground seven, I consider that the grounds of review give rise an arguable case with some reasonable prospect of success on at least two matters which were identified with sufficient specificity at the hearing of the stay.

• [19] First, Mrs Charlton and Mr Barton gave evidence during the proceedings at first instance and the respondents were cross-examined on the matters set out at [25] of the decision. The decision contains no consideration of Mr Barton's evidence, the appellant's submissions (which largely replicate the grounds of appeal), or most of the matters explored during cross-examination of the respondents. Further, the consideration of Mrs Charlton's evidence appears to be limited.

• [20] It follows that a substantial amount of apparently pertinent evidence and submissions central to the appellant's case is not the subject of consideration in the decision. Much of that material appears to challenge the respondents' evidentiary case. The decision does not appear to resolve those evidentiary contests.

• [21] Second, it is apparent that the appellant raised various issues at first instance concerning the respondents' performance and conduct (including the smoking issue and the allegations of lying). I consider that the appellant's grounds of review and submissions are fairly understood as addressing the Deputy President's reasoning as to whether there was a valid reason for the dismissal related to the respondents' capacity or conduct pursuant to s 387(a) of the Act.

• [22] The Deputy President confined his reasoning regarding s 387(a) in the following manner:

[33] The Respondent argues that the Applicants were dismissed on the basis of poor performance of their duties. I note that this was not stated in the termination letter.

[34] The termination letter states issues of 'performance ethic' and the failure to provide proper notice for annual leave. It does not take into account poor performance of duties. Therefore, I can only consider the issues of 'performance ethic' and the failure to provide proper notice for annual leave in determining whether there was a valid reason for dismissal.

• [23] The Deputy President limited his analysis under s 387(a) to the matters he discerns were stated in the termination letter, being (a) "performance ethic," and (b) a failure to provide notice of annual leave. With respect to (a), it is not clear what the Deputy President considered the term "performance ethic" to mean. The termination letter refers to attitude, threats of resignation and abandonment, although the decision does not expressly address any of these matters. It is also sufficiently clear that the Deputy President did not consider the term "performance ethic" to capture the broader performance and conduct issues the subject of the appellant's submissions and evidence. In circumstances where the appellant's case appears to have been almost wholly based on performance and conduct issues, it is not apparent from the decision why the consideration in s 387(a) was limited to a purported failure to provide notice of annual leave.[7]

• [24] Alternatively, it may be that the actual reason for the dismissal was not the reason provided to the respondents in the termination letter or in the telephone call on the day of the termination. Such an approach does not preclude the appellant from relying on what it considers to be the actual reason for the dismissal for the purposes of s 387(a).[8]

• [25] The applicant for a stay must satisfy the Commission that the balance of convenience favours a stay.

• [26] The appellant declined to place an amount equal to the compensation sum into an interest-bearing trust account for the benefit of the respondents on the basis that it was not in the financial position to do so at short notice. Mr Barden submits that the appellant is in a legal dispute with the owners corporation in relation to the maintenance issues identified with the operation of the resort. The respondents did not challenge the position of the appellant in this respect. I consider this matter to be significant in determining whether the balance of convenience favours the grant of a stay.

• [27] To be weighed against this is the respondents' submission that the "process" has been continuing since February 2023 and they seek an end to it for their "sanity." It is to be noted that the respondents' respective applications for an unfair dismissal remedy were filed with the Commission on 15 February 2023. This timeframe must be considered in the context of modern case management principles[9] and the Commission's overarching purposes, which includes the efficient management of unfair dismissal applications. In any event, the issuance of a stay will not give rise to any relevant delay in the determination of the appellant's application for permission to appeal.

• [28] Further, at the hearing of the stay, Mr Stevens confirmed that he secured alternative employment in late April 2023, prior to the first instance hearing, and Mrs Stevens secured alternative employment soon after the hearing. The respondents' financial position therefore weighs neutrally in relation to the issuance of a stay.

• [29] Having regard to all of the circumstances raised, I consider that the balance of convenience favours the grant of the stay.

• [30] The appellant's application for a stay of the order[10] of Deputy President Lake dated 31 July 2023 is granted. An order will be issued in conjunction with this decision.[11]

[1] [2023] FWC 1096

[2] PR764777

[3] [2000] AIRC 785

[4] Ibid at [5] approved on appeal in Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 786

[8] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185 at [45] citing Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at CLR, 377-8

[9] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [92]- [93]

[10] PR764777

[11] PR766008

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