Fair Work Act 2009

s 604 - Appeal of decisions

Appeal against a decision and order of Deputy President Asbury at Brisbane on 14 January 2019 in matter number U2018/5137 - application for a remedy for unfair dismissal - dismissal inconsistent with Small Business Fair Dismissal Code - dismissal 'harsh, unjust and unreasonable' - compensation ordered - application for a stay order - balance of convenience does not favour appellant - no reasonable prospect of success - stay order refused.

[1] On 3 February 2019, Smerff Electrical (the 'appellant') lodged an appeal, for which permission to appeal is required from the Full Bench of the Fair Work Commission (the 'Commission') under ss 400 and 604 of the Fair Work Act 2009 (the 'Act'), against a decision and order of Deputy President Asbury of 14 January 2019 in Mr Jordan Lamacq v Smerff Electrical [2019] FWC 181 (the 'Decision'). The Deputy President ordered the appellant to pay compensation to Mr Jordan Lamacq (the 'respondent') of $11,400.00, following her findings that the dismissal of the respondent on 15 May 2018 was inconsistent with the Small Business Fair Dismissal Code (the 'Code'), pursuant to s 385(c) of the Act, and was 'harsh, unjust and unreasonable', within the meaning of s 387 of the Act.

[2] The appellant's Notice of Appeal seeks a stay of the whole of the Deputy President's Decision and Order [PR703797] pending the hearing and determination of the appeal. I note the appeal and the stay application were lodged on the day before the Deputy President's order was required to be complied with.

[3] Section 604 of the Act reads:

(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.'

[4] The right to appeal a decision of the Commission, made under Part 3-2 of the Act, is discretely set out at s 400 as follows:

(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part 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.'

[5] While ss 604 and 400 of the Act are to be read together, it is obvious that there are different considerations the Full Bench must have regard to when determining appeals in its unfair dismissal jurisdiction. These are, firstly, the different emphasis on the public interest test and secondly, that if an appeal concerns a question of fact, the appellant must establish a 'significant' error/s of fact.

[6] The particular provisions dealing with stay applications are set out at s 606 as follows:

'606 Staying decisions that are appealed or reviewed

(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.

(2) If a Full Bench is hearing the appeal or conducting the review, an order under subsection (1) in relation to the appeal or review may be made by:

(3) This section does not apply in relation to a decision to make a protected action ballot order.'

[7] The principles to be applied by the Commission in considering an application for a stay order are now well settled. These principles are set out in the decision of Ross VP (as he then was) in P Edghill v Kellow Falkiner Motors Pty Ltd (Print S2639), which was adopted by the Full Bench of the Australian Industrial Relations Commission (AIRC) in Kellow-Falkiner Motors Pty Ltd v Edghill (Print S4216). His Honour said at paras [5] and [6]:

'[5] 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] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.'

[8] In respect of the first limb of the test for the grant of a stay - that there is an arguable case, with some reasonable prospects of success - it is necessary to emphasise that the test applies to the requirement for permission to appeal as well as the substantive merits of the appeal. Section 400(1) of the Act mandates that the Commission must not grant permission to appeal, unless it is satisfied that it is 'in the public interest to do so'. The task of assessing whether the public interest test is met is a discretionary one, involving a broad value judgement. The public interest is not satisfied simply by the identification of error, or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 a Full Bench of Fair Work Australia (as the Commission was then styled) identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters..."

[9] In assessing whether the purpose of a stay application in an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits of the matter in a preliminary way, since the Commission will not have had the benefit of hearing the appellant's full argument and usually will not have had the opportunity to properly consider the case materials (as was the case here).

[10] In both the Notice of Appeal and in oral submissions, Mr Simon Hickey, the owner and Managing Director of Smerff Electrical claimed that there were numerous significant errors of fact and law in the Deputy President's Decision, 'plus some stuff I didn't like much'. It is unnecessary for me to rehearse the appellant's grounds of appeal for the purposes of this stay application.

[11] However, the flavour and intent of the appellant's grounds of appeal can be discerned from Mr Hickey's answer to the question, why it would be in the public interest to grant permission to appeal. His response reads:

"In the public interest? First - how is it relevant to the proceedings that the public interest be factored into whether I get to appeal an incorrect decision made on mistaken fact. What have they got to do with it? Are they paying the 11 grand? Or is it more about letting the general public know that should they get sacked for any reason they should play FWC roulette and waste huge amounts of taxpayer funds. Days and days of their previous employers time - all in the hope their not fair I'm a victim and deserve free money mentality gets rewarded with a ching ching ching large cash settlement. This wouldn't be in the FWC interests to generate more customers would it?

Next: how is it this decision generates the publicity that it did? Possibly something to do with the timing and whoever it is that coerced the decision from the commission based on an outcome desired by someone in the Qld Government? Decisions as routine as this one don't generate publicity the way this one did. The secret anti PR squad staffed by Bulldyke Gestapo members is at work here again I am sure of it. Nobody out there in suburbia gives a rats about Giraffes dismissal. So why the coverage?

So: if the commission and the hidden puppeteer see fit to alter the statements of the defendant in the hearing, then base the decision on the new and improved statements that were somehow put in their place. Then subtly or openly send the decision about the 'nazi sparky' to the right people in the MSM so it gets picked up by media everywhere then they made it in the public interest. It is already there. The interests of justice dictate that an appeal be heard.

Therefore the appeal should be heard because the matter is already in the public interest through no fault or action of Hickeys.

Further: if no appeal is permitted and FWC awards the thief Giraffe this insane sum of money then Giraffe can expect to wait until the decision and its contents are compared to a recording of the hearing day. The numerous, serious errors are noted and tabled. When this occurs it will be obvious to anybody comparing the two that numerous, substantial errors of fact were made, and these were included in the decision provided. Therefore the decision is incorrect and therefore invalid. Whether the errors are deliberate or incidental is unimportant. The fact that there are so many constitutes grounds for an appeal, and some sort of enquiry as to how such obvious and important errors can be made."

[12] At the hearing of the stay application on 7 February 2019, the appellant, Mr Hickey represented himself. There was no appearance for, or on behalf of the respondent. During the hearing it was reasonably clear that the appellant understood and appreciated the relevant matters he will need to address in order to persuade the Full Bench to grant permission to appeal. These matters include:

• (a) the identification of significant error/s in the Deputy President's decision; and

• (b) whether the appeal raises any public interest considerations.

[13] In exchanges with the Bench, Mr Hickey claimed he had not been able to properly prepare for his appeal as the Police had removed all of his business's computers and he had not been receiving emails. Mr Hickey sought the stay because he was confident his appeal would succeed. In addition, Mr Hickey stated that his business could not presently operate because of the disruption caused by the Police removing all his computers. In any event, he had no money to comply with the order. However, Mr Hickey assured the Commission he would have all the necessary information to properly prepare for, and present his appeal and he may also seek legal advice.

[14] In the present proceeding, I am satisfied that Mr Hickey raised whatever he wished to put in supporting his stay application, including after my explanation of what he was required to do to satisfy the Commission in respect to the stay principles. It is not the Commission's role to conduct the appellant's case for him, merely because he is unrepresented; although it is apparent that the appellant is well able to articulate and forcefully argue his position and has undertaken some research concerning these matters under the Act.

[15] While I have no reason to doubt the appellant's business has been disrupted by his interactions with the Police, and he may not even be trading, there was no evidence before me that the appellant could not pay the compensation order made by the Deputy President. The appellant's permission to appeal hearing will be listed before the Full Bench early next month. There is no basis to conclude, if the order is complied with, and the appellant is wholly successful on appeal, that Mr Lamacq would not repay the amount ordered by the Deputy President. In those circumstances, the balance of convenience weighs in favour of the respondent.

[16] This conclusion would, of itself, be sufficient to refuse the stay application; however, in considering the appellant's grounds of appeal, and without having a firm and conclusive view, I am not satisfied the appellant has established an arguable case for the grant of permission to appeal or appeal. His prospects of success do not appear to be much higher than problematic, at best. This is so because his appeal grounds seem to be no more than his rejection of the Deputy President's findings and conclusions and his refusal to accept her preference for the evidence of Mr Lamacq over his evidence.

[17] Whether the appellant can or cannot afford to pay the compensation order is not a consideration which arises in circumstances where there is a presumption that a successful litigant is entitled to the 'fruits of their victory'. I note that the effect of the order on the employer's business, was considered by the Deputy President when she said at paragraph [97]:

"Other than stating an intention not to pay a cent to Mr Lamacq regardless of any Order that might be made by the Commission, Mr Hickey placed no evidence before the Commission in relation to the effect of an Order on the viability of the Company. It also stated in Mr Hickey's text message exchanges with Mr Lamacq that Mr Hickey has everything that he has made because of hard work and I am satisfied that Mr Hickey has the financial capacity to pay the amount of compensation to Mr Lamacq that I intend to award."

[18] It would seem the appellant's stated determination not to pay anything to the respondent, is borne from his complete denial of having done anything wrong and his firm belief that the respondent is the 'villain' in this case. This is not a sufficient basis to grant a stay in this matter.

[19] For the reasons above, I conclude:

• (a) The balance of convenience does not weigh in favour of the appellant; and

• (b) The appellant has not established an arguable case, with reasonable prospects of success.

[20] Accordingly, the stay application is refused and dismissed. An order to that effect will accompany the publication of this decision.

Printed by authority of the Commonwealth Government Printer