s.604 - Appeal of decisions

Appeal against decision [2025] FWC 872 of Commissioner Redford at Melbourne on 2 April 2025 in matter number U2025/159 - Application for a stay pending appeal - Whether balance of convenience favours granting a stay - Stay application refused.

• [1] Plumbtrax Pty Ltd has filed a notice of appeal in relation to a decision of Commissioner Redford of the Fair Work Commission (the Commission) handed down on 2 April 2025.[1] The decision of the Commissioner arose from an application by Gabriel Walker under s 394 of the Fair Work Act 2009 (Cth) (the Act) seeking an unfair dismissal remedy. The Commissioner found that Mr Walker's dismissal was not consistent with the Small Business Fair Dismissal Code, the dismissal was otherwise unfair and awarded a remedy by way of an order that Plumbtrax pay Mr Walker $11,726.14 less taxation plus $1,348.51 in relation to superannuation within 14 days of the date of the decision.

• [2] The notice of appeal was filed on 23 April 2025. The notice of appeal seeks a stay of the order made by the Commissioner requiring that Plumbtrax pay Mr Walker compensation pending the hearing and determination of the application for permission to appeal and, if permission is granted, the appeal. A hearing of the stay application was conducted on 2 May 2025. For the reasons that follow, the application for a stay should be dismissed.

• [3] Mr Walker commenced working for Plumbtrax on 7 September 2021 as a plumber. Mr Walker's employment was terminated on 17 December 2024. On that day, Mr Walker was called to attend a meeting with Plumbtrax's managing director, Jeff Laurie. At the meeting a heated exchange occurred. There was some dispute as to precisely what took place at the meeting. It is sufficient to say that the Commissioner found that Mr Walker was given a letter informing him of the termination of his employment on grounds of alleged serious misconduct. The letter had been drafted prior to the meeting. The basis of the decision to dismiss Mr Walker was described by the Commissioner as follows:

[20] The rationale for Mr Laurie's decision to dismiss Mr Walker was that he had created and registered his own business and had begun taking steps to promote that business using Plumbtrax resources without authorisation and during time when he was supposed to be working for Plumbtrax. It appeared to Mr Laurie that Mr Walker's business was similar to Plumbtrax, would compete with Plumbtrax and Mr Laurie thought Mr Walker had an intention to solicit Plumbtrax customers and suppliers.

• [4] The Commissioner accepted that Mr Laurie genuinely believed that Mr Walker had engaged in conduct that was sufficiently serious to justify immediate dismissal in that he had commenced the conduct of a business in direct competition with Plumbtrax. However, the Commissioner found that there was no evidence that Mr Walker had begun operating his business prior to the termination of his employment, taken any customers or performed any work for anyone or that he solicited any customers or advertised the business. Mr Walker had done no more than create an Instagram account for a potential business as a trial. The Commissioner found that although the belief that Mr Walker's had commenced engaging in a business in competition was genuine, it was not reasonably held. As a result, the dismissal was not consistent with the Small Business Fair Dismissal Code.

• [5] The Commissioner turned to consider whether Mr Walker's dismissal was harsh, unjust or unreasonable. The Commissioner concluded that there was no valid reason for Mr Walker's dismissal, he was not notified of the reason before the decision was made or provided with an opportunity to respond prior to the decision being made to terminate his employment. The Commissioner considered the conduct of Mr Walker in taking preparatory steps to establish a potentially rival business. However, the Commissioner concluded that Mr Walker's conduct did not justify dismissal and that his dismissal was harsh, unjust and unreasonable and that Mr Walker was unfairly dismissed.

• [6] The Commissioner determined that it was appropriate to order the payment of an amount of compensation. The Commissioner concluded that, if he had not been dismissed, Mr Walker's employment would have continued for six weeks and, taking into account the earnings he had managed to make following the dismissal, assessed the appropriate amount of compensation to be $11,726.14, plus superannuation. The payment was required to be made within 14 days of the decision, that is, by 16 April 2025.

• [7] 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.

• [8] A commonly cited formulation of the principles applicable to the grant of a stay is found in the decision of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 in which Ross VP (as his Honour then was) said:[2]

In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects 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."

• [9] That statement of the principles is sufficient for present purposes. Assistance may also be derived from the approach adopted by the courts in relation to an application to a stay pending appeal.[3] It is appropriate to emphasise that an applicant for a stay must positively demonstrate that the balance of convenience weighs in favour of a stay being granted. There is no prima facie position in favour of the granting of a stay and the grant of a stay is not to be regarded as the usual course.[4] However, special circumstances need not be shown.[5]

• [10] Plumbtrax did not seek a stay until after the time for compliance with the order had passed and has not complied with the order for the payment of compensation. It is incumbent upon the party subject of orders of the Commission to seek a stay in a timely manner if it wishes to be relieved of the obligation to comply with those orders pending hearing and determination of the appeal. It would be a serious matter for a party to decide for itself not to comply with an order of the Commission simply because it proposes to challenge the order.[6] The proper course is to seek a stay prior to the time for compliance being reached.

• [11] The failure of a party to seek a stay prior to the time for compliance with the order passing is a matter capable of bearing upon the exercise of the Commission's discretion as to whether a stay should be ordered.[7] There may be cases in which it is not practicable to seek a stay prior to orders coming into operation or in which a reasonable explanation is provided for failing to do so. Whether the appellant has acted promptly and reasonably in seeking a stay will, however, be relevant to the question of whether a stay should be granted.

• [12] I turn then to consider whether Plumbtrax has demonstrated it has reasonable prospects of success, in respect of both the question of permission to appeal and the substantive merits of the appeal, sufficient to justify a stay being granted. The grounds of appeal are lengthy. In substance, the notice of appeal contends that the Commissioner erred by finding that Plumbtrax's belief that Mr Walker was conducting a business was not reasonably held and by finding contrary to the weight of evidence that Mr Walker was not engaged in serious misconduct by conducting a business competing with Plumbtrax.

• [13] The errors alleged in the notice of appeal are, in substance, errors of facts. Plumbtrax submits that the findings of the Commissioner were inconsistent with the weight of the evidence, particularly the evidence of Mr Walker that he had registered a business with ASIC, created an Instagram account, posted an advertisement in the Instagram account and CCTV footage of chain cutting equipment. Plumbtrax also contends that the Commissioner erred in finding that it was implausible that Mr Walker could perform work in his own business at the same time as performing work for it.

• [14] It is not possible, for the purposes of dealing with this stay application, to form any firm view about the strength of the contentions advanced by Plumbtrax in relation to the factual findings made by the Commissioner. I do not have the full evidence before me and the parties have not developed the submissions that they propose to make in relation to the evidence. I simply observe that the Commissioner addressed those aspects of the evidence referred to by Plumbtrax in the notice of appeal and that, having considered those aspects of the evidence, did not believe that Mr Walker had engaged in serious misconduct or that there was a reasonable basis to believe that he had.

• [15] I also observe that the appeal is subject to s 400 of the Act. As a result, permission to appeal can only be granted if the Commission is satisfied it is in the public interest to do so and an appeal can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact. Those provisions reflect a priority that is given to first instance decision-making in unfair dismissal proceedings, and that statutory context suggests that it will commonly not be in the public interest to grant permission to appeal where the grounds of appeal simply seek to relitigate the factual findings made at first instance.[8]

• [16] Those considerations suggest Plumbtrax may encounter some difficulty in convincing the Commission that it is in the public interest to grant permission to appeal under ss 604(1) and 400(1) of the Act. However, it is not necessary or appropriate to express any concluded view in relation to that question. In the circumstances, I cannot find that Plumbtrax does not have arguable grounds of appeal and some prospect of obtaining a grant of permission to appeal, although it may encounter some challenges.

• [17] Plumbtrax contends that the balance of convenience favours granting a stay. It submits that the prejudice to Mr Walker would be limited because the appeal has been listed for hearing on 18 June 2025 and that it has concerns that, if the appeal is successful, it may have difficulties recovering the compensation amount from Mr Walker in part because it says there is animosity between the parties. Plumbtrax also submits that it will, if the appeal is successful, experience administrative difficulties in recovering the superannuation contributions from Mr Walker's superannuation fund.

• [18] Mr Walker submits that a stay should not be granted. He says that he is experiencing a degree of financial stress following the termination of this employment. Mr Walker told me, and I accept, that he is working as a subcontractor and is generally working two days per week, and it is "very tough". He says that there would be no difficulty is repaying the compensation amount if the appeal is successful. Plumbtrax submitted, in reply, that Mr Walker's indication that he is struggling financially heightened its concern about recovering the compensation amount if the appeal is successful.

• [19] The determination of whether a stay should be granted is finely balanced. Although I accept Plumbtrax may have some arguable grounds of appeal, having considered the whole of the circumstances, I am not convinced the balance of convenience favour the granting of a stay. Mr Walker has been successful at first instance. He is experiencing financial difficulties as a result of the loss of his employment which a member of the Commission has found was harsh, unjust and unreasonable. I do not believe the balance of convenience favours him being denied access to the compensation amount awarded by the Commissioner pending appeal.

• [20] Plumbtrax appears to be a small business. However, there is no evidence before the Commission in relation to its financial position or that payment of the compensation amount will cause it any immediate financial difficulty. The only substantial basis upon which it contends that the balance of convenience favours a stay being granted is that it is concerned that the compensation sum will not be repaid if the appeal is successful. Although I can understand its concern, Mr Walker stated that he would be able to repay the money. Mr Walker says he is experiencing financial stress, but I do not have material before me to suggest that he would unwilling or unable to repay the compensation amount if the appeal is successful or reason to doubt Mr Walker's statement.

• [21] I recently examined the approach to be adopted where it is alleged a respondent may not repay a compensation amount if an appeal is successful in Polymaster Pty Ltd v Gunn [2024] FWC 2249. I referred, for example, to the approach of Marshall J in Saltmarsh v Nicols t/as Tasmanian Carpet Cleaning (1997) 72 IR 61 when dealing with an application for a stay pending review of a decision of a judicial registrar to order the payment of compensation as a result of a termination of employment. Marshall J concluded (at 61):[9]

A mere assertion of an inability of a successful applicant to repay moneys ordered to be paid by a judicial registrar in the event that a respondent succeeds on a review will rarely found an appropriate case for a stay of the payment of the compensation ordered. There is no evidence before the Court of the financial circumstances of Ms Saltmarsh. To assert that Ms Saltmarsh would not repay any sum which the Court may ultimately order her to pay is to assume that she would act disreputably. I have no reason to assume that she would act disreputably. See Public Transport Corporation v Boulton (unreported, IRCA, Full Court, 22 December 1995).

• [22] There are also various decisions of the Commission in which a stay of a compensation or other monetary order has been refused where there was no evidence that the amount would not be repaid if the appeal was successful.[10]

• [23] The simple assertion that Mr Walker might not repay the compensation amount is not sufficient to persuade me that the balance of convenience favours granting a stay. I have taken into account that the employment ended in somewhat acrimonious circumstances and that Mr Walker is now experiencing financial stress. However, weighing all of the circumstances, I do not believe a stay should be granted. I have separately considered whether the order for the payment of superannuation should be stayed. However, ultimately, Mr Field described recovering that payment as an "administrative process" and there is not material before me to suggest that the process is onerous, and I do not think it appropriate to stay the order for the payment of a superannuation contribution.

• [24] The application for a stay is refused.

B Field, solicitor, of Employsure for the appellant.

[1] Walker v Plumbtrax Pty Ltd [2025] FWC 872.

[2] Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 at [5].

[3] See, for example, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694; Powerflex Services Pty Ltd v Data Access Corporation [1996] FCA 460; (1996) 67 FCR 65 at 66.

[4] Supreme Caravans Pty Ltd v Pham [2013] FWC 4766 at [11] citing Edwards v Telstra Corporation Limited [1998] AIRC 679, Print Q2467.

[5] Phillip Morris (Aust) Ltd v Nixon [1999] FCA 1281 at [17].

[6] Technical and Further Education Commission v Pykett [2014] FCA 727 at [3]- [8] (Perram J).

[7] Evolving Support Services v Molokac [2024] FWC 1928 at [37] and authorities cited therein.

[8] Illawarra Coal Holdings Pty Ltd (t/as South32) v Sleiman [2024] FWCFB 364 at [40]

[9] See also Gadecki v International Health and Beauty Aids Pty Ltd (1997) 76 IR 224 at 225.

[10] Just Relations - Consultants v Ecolab Pty Ltd [2017] FWC 1126 at [13]; Wynbob Pty Ltd (t/as Andersens Tweed Heads) v Bond [2018] FWC 2212 at [16]; Smerff Electrical v Lamacq [2019] FWC 796 at [15].

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