Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2025] FWC 2632 of Commissioner Connolly at Melbourne on 5 September 2025 in matter number U2025/1254 - Stay application - Stay sought against order for reinstatement and payment of lost remuneration - Stay granted on conditions.

• [1] Robert Smith is a stevedore. He commenced employment with Qube Ports Pty Ltd in 2009 and was dismissed on 15 January 2025. He is 62 years of age. Following his dismissal, Mr Smith applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy. On 5 September 2025, Commissioner Connolly handed down his decision with respect to Mr Smith's application. The Commissioner ordered that Mr Smith be reinstated to the position in which he was employed immediately before his dismissal, that the continuity of his employment be maintained and that a payment with respect to lost remuneration between dismissal and reinstatement be made, albeit discounted by fifty per cent.

• [2] On 22 September 2025, Qube filed a notice of appeal seeking permission to appeal and to appeal from the decision. In its notice of appeal, Qube seeks a stay pending appeal under s 606(1) of the Act. The application for a stay was subject of a hearing conducted before me on 26 September 2025. The reinstatement order made by the Commissioner was required to be put into effect on that day. Following the hearing, I made an order granting the application for a stay subject to certain conditions, including that Qube pay Mr Smith the wages and other payments he would have received had he been reinstated less amounts earned by him in other employment or work. These are my reasons for making that order.

• [3] Mr Smith was dismissed as a result of allegedly engaging in conduct that was inconsistent with Qube's Workplace Behaviour Policy, Code of Conduct and Ethics, and the Qube Employee Handbook, as well as its values of Integrity, Reliability, Inclusion and Zero Harm. Two specific allegations were articulated in the course of the disciplinary process. The first was that, on or around 27 November 2024, Mr Smith asked another employee "What's for lunch?" to which they replied "Subway" and Mr Smith then told that employee "Well I spat in it and put my cock in it". The second was that, in or around September 2024, Mr Smith requested another employee drive the toilet car but this employee was unable as they were already driving the breakout cab off the ship and Mr Smith then called the employee a "condescending cunt" and a "useless piece of shit".

• [4] At the hearing before the Commissioner, Qube relied upon two other incidents involving Mr Smith. The first occurred on 27 March 2024 and was referred to by the Commissioner as the "Facebook incident". In the Facebook incident, Mr Smith showed photos of two work colleagues in bikinis to male coworkers. That incident resulted in Mr Smith being given a final warning. The second was alleged to have occurred on 23 April 2025 and was referred to by the Commissioner as the "Hatch incident". In that incident, it was alleged Mr Smith victimised another employee, Mr Churchward, who was involved in reporting the Facebook incident. The Hatch incident was reported at the time, but Qube took no disciplinary action against Mr Smith on account of the incident.

• [5] The Commissioner made detailed factual findings in relation to each of the alleged incidents. The Commissioner was not satisfied that the evidence established that Mr Smith had engaged in the conduct alleged against him other than in relation to the Facebook incident. Accordingly, the Commissioner concluded that the remaining incidents did not provide a valid reason for dismissal. The Commissioner found that Mr Smith's conduct in relation to the Facebook incident was entirely inappropriate and provided a valid reason for dismissal. The Commissioner, however, was satisfied that dismissal of Mr Smith was harsh and unjust because the seriousness of his conduct was outweighed by a series of factors being his age and length of service, that Mr Smith was not notified of the valid reason for his dismissal, that Mr Smith was not provided with an opportunity to respond to the reasons for his dismissal prior to being dismissed and that Mr Smith was treated differently to other workers in the circumstances of complaints made and conduct involving swearing. The Commissioner found that reinstatement was not inappropriate and that Qube's assertion that it has lost trust and confidence in Mr Smith is not soundly or rationally based.

• [6] Qube sought that the orders made by the Commissioner be stayed pending hearing and determination of its appeal. Mr Smith's primary position was that the application for a stay should be refused. In the alternative, Mr Smith submitted that a stay should be granted only on condition that he be paid his usual earnings pending the determination of the appeal.

• [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) of the Act, 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 Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 758 in which Ross VP (as his Honour then was) said:[1]

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] The usual principle applied by the courts, when considering an application for a stay pending appeal, is that "a successful party is entitled to the fruits of his judgment" and there must be "sound reasons" to justify a suspension of that right.[2] No different principles are applicable where a stay is sought of a reinstatement order. In a particular case, there might be consequences of reestablishing an employment relationship in circumstances in which it may be interrupted again if the appeal is successful which militate in favour of a stay being granted. Although those consequences may be relevant to an assessment of the balance of convenience in such a case, it is not correct to say that the grant of a stay in an appeal against a reinstatement order is the "normal" or "usual" course.[3]

• [10] The first matter to be considered is whether Qube has an arguable case, with some prospects of success, in relation to both the question of permission to appeal and the substantive merits of the appeal. The notice of appeal contains 10 grounds most of which themselves contain numerous subparagraphs. The first ground simply contends that, in finding that Mr Smith's dismissal was harsh and unjust and/or that reinstatement was not inappropriate, the Commissioner failed to consider the evidence holistically and reached conclusions that were irrational, illogical or unreasonable. The remainder of the grounds are primarily directed at establishing that the Commissioner made factual errors, mistook the evidence or failed to give weight or adequate weight to aspects of the evidence before him.

• [11] In its submissions in relation to the stay application, Qube invited me to engage in a detailed consideration of the factual findings made by the Commissioner and aspects of the evidence it says were not properly considered by the Commissioner. I am not prepared to engage in the exercise contemplated by Qube. In considering a stay application, it is not possible or appropriate to engage in a detailed consideration of the merits of an appeal. The material before the Commissioner was extensive. I have not had the opportunity to consider it in the detail which would be required to fully consider the grounds of appeal. I do not have full submissions before me in relation to the appeal. In some cases, however, it will be appropriate to consider the strength of an appeal as a preliminary assessment, in order to properly assess the balance of convenience and fairness to the parties.[4] Given Qube's reliance on the strength of the appeal case, this is such a case.

• [12] Based on a preliminary and necessarily superficial assessment, the errors sought to be identified in the decision of the Commissioner do not immediately strike me as being as obvious as Qube contends. It must be observed that an appeal in an unfair dismissal matter which primarily seeks to revisit factual findings made at first instance might have difficulty attracting a grant of permission to appeal in the public interest. Furthermore, many of the factual findings made by the Commissioner appear likely to have been influenced by the Commissioner having observed Mr Smith and Mr Chuchward, in particular, giving evidence. Findings of that nature will only be upset on limited grounds.[5] The standard adopted by the grounds of appeal which contend that the findings of the Commissioner were "irrational, illogical or unreasonable" sets a high threshold.[6]

• [13] However, I am prepared to accept, without detailed evaluation and in a purely preliminary way, that the grounds of appeal are arguable and have some prospects of success. In those circumstances, it is necessary to consider whether the balance of convenience favours a stay. As I understood Qube's submissions, it submitted that the balance of convenience favoured granting a stay because of the strength of the case on appeal. Qube also contended that Mr Smith's reinstatement, even on a temporary basis pending appeal, would jeopardise steps that Qube is taking to strengthen its workplace culture, be inconsistent with Qube's obligations to maintain a safe workplace and provide equality of opportunity for all, undermine the confidence of employees who come forward to report misconduct by other employees and cause alarm for the particular employees involved in the incidents which resulted in Mr Smith's dismissal.

• [14] In that regard, Qube relied on a witness statement of Daniel Ortiz, Group General Manager - Industrial Relations for Qube. The witness statement was admitted as evidence in relation to the stay application. Mr Ortiz's statement contains statements recording his opinions about the effect of Mr Smith' reinstatement on the workplace culture at Qube and refers to communications with some of the employees involved in the incidents which resulted in Mr Smith's dismissal. Those communications indicate that at least the two female employees involved in the Facebook incident are dissatisfied with the way Qube dealt with the matter and have concerns about being rostered on shift with Mr Smith.

• [15] In the particular circumstances of this matter and having regard to the nature of the allegations which are subject of Qube's appeal, I am satisfied that the balance of convenience favours granting a stay of the reinstatement order. It is undesirable that Mr Smith return to the workplace if there is some chance that the factual findings of the Commissioner might be overturned on appeal. However, I consider that the balance of convenience favours granting a stay only on condition that Mr Smith be paid the wages and other payments he would have received had the reinstatement order gone into effect (less amounts earned from other employment or work).

• [16] Qube proffered an undertaking to pay 100 per cent of the amount Mr Smith would have earned from the date of the stay order until the date of reinstatement in the event that the reinstatement order of the Commissioner is upheld on appeal. I do not consider that to be sufficient to ameliorate the disadvantage to Mr Smith of a stay being granted.[7] If a stay order is not made, Mr Smith would be required to be reinstated pending determination of the appeal and have the opportunity to earn the remuneration associated with the employment. Those earnings would not be repayable even if the appeal is successful. Mr Smith is a 62-year-old man. I was informed at the stay hearing, and have no reason to doubt, that he has not been employed since his dismissal and is presently not in receipt of any income. That weighs in favour of a condition being imposed on the stay order that Qube not recover amounts paid to Mr Smith pending the appeal being heard and determined.

• [17] Qube's contention that no such condition should be imposed appeared to be primarily premised on its view as to the strength of its case on appeal. As I have indicated, I do not presently think the grounds of appeal are as strong as Qube submitted and they face some challenges. Qube also said that it would send the wrong message for Mr Smith to get a benefit in the form of the payment of his wages pending determination of the appeal. I do not regard imposing the condition to which I have referred as sending any message at all. The condition is purely intended to ensure that Mr Smith, who a member of the Commission has found was unfairly dismissed and should be reinstated, is not financially disadvantaged by a stay order.

• [18] Qube strongly disagrees with the Commissioner's findings as it is entitled to do. The present situation is, nonetheless, that the member of the Commission who heard the proceedings found that the allegations against Mr Smith were not proven with one exception. In relation to the Facebook incident, the conduct of Mr Smith was regrettable and entirely inappropriate as the Commissioner found. However, Qube itself did not, at the time it occurred at least, believe that the incident warranted Mr Smith's dismissal. The incident resulted only in a final warning. On the information available to me, I do not consider that Mr Smith should suffer financial disadvantage, or potential financial disadvantage, by reason of a stay order being made.

• [19] For these reasons, I issued an order staying the decision and orders of the Commissioner made by 5 September 2025 on condition that Qube pays Mr Smith the wages and other payments he would have received had he returned to work (less amounts earned from other employment or work).

R Preston, of counsel, instructed by Allens for the appellant.

K Bond, National Legal Officer of the Maritime Union of Australia, for the respondent.

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

[2] McBride v Sandland (No 2) [1918] HCA 59; (1918) 25 CLR 369 at 374; Philip Morris (Australia) Pty Ltd v Nixon [1999] FCA 1821 at [17].

[3] See, for example, Supreme Caravans Pty Ltd v Pham [2013] FWC 4766 at [11]; Virgin Airlines Australia Pty Ltd v Macnish [2024] FWC 2333 at [16]- [17]; Central Queensland Services Pty Ltd v Weule [2025] FWC 1835 at [14].

[4] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; Burgess v Mount Thorley Operations Pty Ltd [2002] NSWIRComm 290; (2002) 119 IR 52 at [22].

[5] Fox v Percy [2003] HCA 22; (2003)214 CLR 118 at [20]-[31]; Robinson Helicopter v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43]; Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]; AEU v Bendigo Kangan Institute of TAFE [2021] FWCFB 3649 at [36]- [39].

[6] DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85].

[7] See discussion in my decision in Central Queensland Services Pty Ltd v Weule [2025] FWC 1835 at [29]- [31].

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