s.604 - Appeal of decision

Appeal against decision [2025] FWC 215 and order PR783581 of Deputy President Wright at Sydney on 22 January 2025 in matter number U2024/8071 - application for a stay order - application for a stay order refused.

• [1] This decision concerns an application by Roadworx Surfacing Pty Ltd for a stay order pursuant to s 606 of the Fair Work Act 2009 (Cth) (Act). It is made in connection with an appeal filed by Roadworx against a decision[1] and order[2] issued by Deputy President Wright on 22 January 2025 for the payment of compensation as a remedy for the unfair dismissal of the respondent, Robert Dodd.

• [2] In the decision, the Deputy President found that, contrary to Roadworx's position, Mr Dodd was dismissed by Roadworx and there was no valid reason for the dismissal. Having regard to the Deputy President's other findings, the Deputy President concluded that Mr Dodd was unfairly dismissed. The Deputy President determined that compensation was appropriate and issued an order that Roadworx pay to Mr Dodd $33,913.07 gross, plus superannuation less taxation as required by law.

• [3] Roadworx seeks a stay of the whole of the order pending the determination of the appeal. The stay is opposed by Mr Dodd.

• [4] For the reasons that follow, the application for a stay is refused.

• [5] Section 606 of the Act gives the Commission the discretionary power to stay the operation of the whole or part of a decision that is the subject of an appeal. The case of Edghill v Kellow-Falkiner Motors Pty Ltd,[3] 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.

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

Is there an arguable case with some reasonable prospect of success?

• [7] In determining a stay application, the Commission must assess the strength of the appellant's case on appeal without the benefit of hearing the full argument and usually without the opportunity to undertake a full analysis of the case materials. Accordingly, the consideration of whether the appellant raises an arguable case with some reasonable prospect of success is to be undertaken against that context.

• [8] In the Form F7 Notice of Appeal, in response to the question, "What are the grounds for your appeal?" Roadworx states "all outlined in the letter." I therefore understand that Roadworx's grounds of appeal comprise of the matters set out in the correspondence from Roadworx to the chambers of Deputy President Wright dated 31 January 2025. This correspondence is attached to the Form F7. I summarise these grounds as follows:

(1) Regarding paragraph [10] of the decision: the job was offered to Mr Dodd, there was no recruitment process.

(2) Regarding paragraph [11] of the decision: a significant effort was made to offer Mr Dodd a suitable role, but Mr Dodd did not provide insight into what he wanted to do. Other options to manage contracts were rejected.

(3) Regarding paragraph [13] of the decision: this is rejected, constant meetings were held with Mr Dodd to allocate work and if this was acceptable to him.

(4) Regarding paragraph [38] of the decision: refer to email dated 5 July 2024 and the evidence of Mr Fabian and Mr Tory that Mr Dodd became hostile and agitated.

(5) Regarding paragraph [20] of the decision: a consultation follow up meeting was organised with Mr Dodd to provide further feedback regarding the ongoing sick days, the support Roadworx can provide, failure to meet business expectations and negativity towards the organisation. Management was hopeful of a resolution. Mr Dodd became highly argumentative. Management tried to come up with appropriate solutions, but Mr Dodd stormed off in the company vehicle. Mr Dodd returned his uniform and company belongings. Disciplinary letters were provided but Mr Dodd would not sign them.

• [9] Roadworx attached to its 31 January 2025 letter several documents which it says support its grounds of appeal. At the stay hearing, Roadworx confirmed that these documents were not in evidence during the proceedings before the Deputy President at first instance. Its position is that for personal reasons, it did not locate (nor file) this material with the Commission until after the hearing before the Deputy President had concluded. Roadworx therefore seeks to rely upon fresh evidence in the appeal.

• [10] In addition, at the stay hearing, Roadworx was invited to explain the contention in its Notice of Appeal which states, "pay calculation incorrect (normal hours)."[5] I understand Roadworx's position to be that Mr Dodd was paid an additional hour each day due to a historical agreement which Roadworx may now seek to challenge. It is not apparent how this matter is connected to the decision under appeal, nor does it appear to have been advanced at first instance. Relevantly, it is not contended by Roadworx that the Deputy President's reliance upon Mr Dodd's payslip for the last pay period of the 2023/2024 financial year in her assessment of compensation was erroneous.

• [11] The appeal grounds advanced by Roadworx do not, on their face, speak to any alleged error on the part of the Deputy President. Nor is it apparent what error the Deputy President is said to have made by not taking into account material that Roadworx did not file with the Commission or seek to rely upon during the proceedings at first instance. An appeal cannot succeed in the absence of appealable error.[6]

• [12] To the extent that Roadworx seeks to challenge the factual findings made by the Deputy President at first instance, Roadworx appears to confront at least two hurdles. First, the threshold in s 400(2) of the Act applies because this is an appeal from a decision made by the Commission under the unfair dismissal provisions of the Act (Part 3-2). In such an appeal, the Commission must not grant permission to appeal unless the Commission considers it to be in the public interest to do so. Neither the Notice of Appeal, nor the 31 January 2025 correspondence to which it refers, identifies any public interest considerations.

• [13] Second, it appears that Roadworx will need to persuade the Full Bench to exercise its discretion to admit further evidence and take into account other information on appeal (see s 607(2) of the Act). The well-settled principles governing the discretion to admit new evidence or to consider further material on appeal are set down in Akins v National Australia Bank (Akins).[7] Three conditions need to be met before fresh evidence can be admitted:

(a) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance;

(b) it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and

• (c) the evidence must be credible.[8]

• [14] While it is permissible in an appropriate case to depart from the principles set out in Akins,[9] it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met. In the present case, an issue for consideration will concern Mr Dodd's contention at the stay hearing that Roadworx had the opportunity to obtain the evidence for use at first instance but did not do so. As the High Court has observed, a party is typically bound by the conduct of their case at first instance. Except in the most exceptional circumstances, a party should not be permitted to raise a new argument on appeal that was not put during the first instance hearing when there was an opportunity to do so.[10]

• [15] Roadworx may be able to develop the issues I have identified at the permission to appeal hearing. However, I am not persuaded on the basis of the material before me that there is an arguable case with some reasonable prospect of success in relation to the question of permission to appeal and the substantive merits of the appeal.

• [16] In these circumstances, the application for a stay order cannot succeed. It is therefore unnecessary for me to consider whether the balance of convenience weighs in favour of the stay being granted.

• [17] Roadworx's application for a stay is refused.

[1] [2025] FWC 215.

[2] PR783581.

[3] Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 785.

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

[5] Notice of Appeal, section 6 at [6.2].

[6] Wan v AIRC [2001] FCA 1803; 116 FCR 481 at [30].

[7] Akins v National Australia Bank [1994] 34 NSWLR 155.

[8] See Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6936.

[9] JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963 at [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317 at [18]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [21] - [25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [11].

[10] See Metwally v University of Wollongong [1985] HCA 28; 158 CLR 447 at [7].

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