Fair Work Act 2009

s.604 - Appeal of decision

The Camberwell Grammar School T/A Camberwell Grammar School

Appeal against decision [2017 FWC 5561] of Commissioner Ryan at Melbourne on 31 October 2017 in matter number U2017/6366 - stay application.

[1] On 25 October 2017, Commissioner Ryan determined that Ms Alex Dai's dismissal by Camberwell Grammar School was unfair. His decision given in transcript was published on 31 October 2017.[1] Commissioner Ryan did not determine a remedy at that time and the matter was listed for hearing to determine remedy.

[2] On 14 November 2017, Camberwell Grammar School lodged an appeal against the decision of Commissioner Ryan and sought a stay of the decision.

[3] The application for a stay was listed. At the hearing, Camberwell Grammar School was not granted permission to be represented by a lawyer as the Commission was not satisfied that the issues to be determined in the stay application were complex, particularly given the position being put forward by Camberwell Grammar School.

[4] Camberwell Grammar School sought a stay of the permission to appeal hearing which is listed for 28 November 2017. It advised that, given the way the matter was conducted below, it was not clear to them whether they should await the final decision and orders in the matter before Commissioner Ryan or whether it was required to lodge the appeal against the decision within 21 days of the decision. To protect its position, the appeal was lodged. It was submitted that the current appeal should be stayed until such time as the decision on remedy is handed down. It submitted otherwise the Commission and the parties may need to deal with two appeals arising from the same matter. It submitted that it was in the interests of justice, and would enable the efficient administration of the appeal, if only one appeal was heard in relation to this matter.

[5] Ms Dai opposed the adjournment of the permission to appeal hearing. She submitted that the appeal was without merit and will not succeed. She submitted that a delay in hearing the appeal will further delay her return to work. She was concerned that her position at the school may be filled and this will further prevent her return to work. She submitted that this application was just a delaying tactic.

[6] This matter is listed for permission to appeal. In the event that permission is granted, the merits of the appeal will need to be heard. Commissioner Ryan has indicated that his decision on remedy will be issued on 30 November 2017. If either Ms Dai or Camberwell Grammar School is aggrieved by that decision they can appeal and seek a stay of the decision.

[7] I have decided to adjourn the permission to appeal hearing listed for 28 November 2017 as I accept the submission of Camberwell Grammar School that it is preferable that all matters which are to be appealed are dealt with at the same time. Whilst recognising Ms Dai's concern about the delay, it is unlikely that any hearing of the merits of the appeal, if permission is granted, would be able to be heard before Christmas. Further, even if permission to appeal was refused, it is likely that any decision to reinstate Ms Dai would be appealed by Camberwell Grammar School and therefore any reinstatement would be delayed in any event. Further, I do not accept that adjourning this appeal would prejudice Ms Dai's right to reinstatement if such an order is made. There is no reason to believe that if a reinstatement order is made, that Camberwell Grammar School will not comply with such an order, subject of course to its right to appeal such an order.

[8] I therefore set aside the directions issued in this matter and adjourn the permission to appeal hearing.

[1] [2017] FWC 5561

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