Fair Work Act 2009

s 604 - Appeal of decisions

Wynbob Pty Ltd t/a Andersens Tweed Heads (formerly)

Appeal against order PR601662 of Commissioner Hunt at Brisbane on 29 March 2018 in matter number U2017/9124 - application for 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 prospects of success - stay order refused.

[1] On 12 April 2018, Wynbob Pty Ltd t/a Andersons Tweed Heads (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 Commissioner Hunt of 29 March 2018 in Bond v Wynbob Pty Ltd t/a Andersons Tweed Heads (formerly) [2018] FWC 1337 (the 'Decision'). The Commissioner ordered the appellant to pay compensation to Ms Hayley Bond (the 'respondent') of $2,565.18 plus 9.5% superannuation, following her findings that the dismissal of the respondent on 9 August 2017 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] In the appellant's notice of appeal it seeks a stay of the whole of the Commissioner's Decision and Order [PR601662] pending the hearing and determination of the appeal. He seeks expedition of the appeal. I note the appeal and the stay application were lodged on the day the Commissioner's order was required to be complied with.

(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] Curiously, the appellant set out the grounds of appeal and the reasons why he believed it was in the public interest for the Commission to grant permission to appeal, in identical terms. I set out in full the relevant extract from the appeal application, Questions 2.1 and 3.1 as follows:

'1. The termination of employment was based solely on the past meeting held with all staff on Thursday 3rd August 2017 with the voice recording submitted as factual evidence and subsequent defiance in sharing both operational and personal information of Wynbob P/L with other parties outside of Wynbob P/L.

1. Bob Green made no consideration to a past drink driving incident from November 2016 that influenced the decision of termination as he was not aware of leakage of this information prior to it being used as part of Ms Bond's evidence of Unfair Dismissal in the hearing.
2. The incident of taking a photo of Bob Green asleep on the Lounge in July 2017, being further fabricated evidence claiming Bob Green was intoxicated in a[n] attempt to help support her case with no supporting evidence other than a photo being asleep. Bob Green was not aware of this photo being taken and subsequently provided supporting Medical Certificates relating to his condition of "dumping syndrome" which is still current today and remains as factual evidence, not fabricated.
3. The meeting held with Ms Bond on Tuesday 8th August at approximately 2.00 - 2.30pm [39] and not 3.30 pm [39] was the earliest time possible to address this matter due to a prior on site meeting with a customer (see attached diary entry) as additional evidence. The number of references made particularly in [65], [66],[68], [69], [83], [84] and [85] are not valid due to evidence of prior commitments not allowing the meeting to take place any earlier. The Summary Dismissal [85] determination is incorrect and contradicts [58] Regulation 1.07 of wilful and deliberate behaviour by an employee.
4. In consideration to item [60 and 61] Bob Green ceased drinking effectively from November 2016 with the Medical Certificate supporting his behaviour of being vague and slurred speech being part of his condition.
5. Relevant considerations [94] (d) All other matters within [8] were never discussed, which also formed part of [92] Valid reason - s.387(a) and in reference considerations [92 and 93].
6. As stated in sub-clause of [73] The legislation requires a consideration of whether the employer, in determining its course of action in relation to the employee at the time of dismissal, carried out reasonable investigation , and reached a reasonable conclusion in all the circumstances including the experience and resources of the small business employer concerned." The investigation held was in part questioning Phil D'Agostini on how he obtained the information of closing the business that was discussed with staff on Saturday 5th August 2017. The information exchanged confirmed the source in that it was leaked by Ms Bond. The comments made in [74, 75 and 76] by Phil D'Agostini were untrue and it was raised by Bob Green of this and given that everyone was under oath, this was perjury and that all should be reminded of this. With particular reference to [76] that his evidence was more consistent to Ms Bond, the challenge of lying was dismissed and can only conclude that this was fabricated whilst with Ms Bond in their meeting in the Pub prior to his submission and should be contested as a key part of determination and of Ms bond's submission.
7. It is also noted that statements from Mrs Tracy Brace and Mrs Tracy Faulks, whilst clearly solid and factual, did not require phone conversation or cross examination to occur. As this was clearly factual evidence pertaining to the current situation and not an incident from nearly 12 months prior, the focus had shifted to the latter as in Ms Bond's defense to why she was unfairly dismissed.
8. With regard to paragraph [138] Ms Bond received 2 weeks in lieu of serving that time out. This would have remained unchanged upon giving notice of the sale/closure of the business and would not have been in addition to any remuneration package.
9. With regard to compensation being made for running costs etc whilst employed as an Uber driver in addition to her employment with Wynbob P/L, this choice was of Ms Bond and should not affect or be supplemented by Wynbob P/L. This also is in keeping with other additional employment whilst working within Andersens, Tweed Heads.' [emphasis in original]

[11] At the hearing of the stay application the appellant was represented by Mr Bob Green and the respondent, Ms Hayley Bond, appeared for herself. At the commencement of the hearing, I invited the parties to consider settling the appeal application in private conference with the Commission. Both agreed. While there were extensive discussions, the substantive matter was not able to be resolved. Accordingly, I proceeded to hearing the stay application.

[12] As is apparent from the grounds of appeal referred to in para [10] above, it is not entirely clear that the appellant understood or appreciated the relevant matters he will need to address in order to persuade the Full Bench to grant permission to appeal. Such matters include:

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

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

[13] In respect to errors in the Commissioner's decision, Mr Green submitted he was not permitted to cross examine a key witness, Mr D'Agostino and two employees of the appellant, Ms Brace and Ms Faulkes. Although I explained to Mr Green some of the matters going to the public interest, he could not articulate how the public interest might be enlivened in this appeal.

[14] Ms Bond opposed the stay application being granted. She accepted the conclusions and order of the Commissioner and submitted she would accept the appeal decision, even if it meant she lost the case and ended up with nothing.

[15] As the Commissioner noted, Wynbobs Pty Ltd ceased trading as Andersons Tweed Heads by 30 November 2017; see: para [135] of the Decision. She earlier found that the appellant's trading circumstances did not convince her that the compensation payable should be reduced, under s 392(2)(a) of the Act as to the effect of the order on the employer's viability; see: [131-[132] of the Decision.

[16] Given that the compensatory order of the Commissioner was relatively modest ($2,565.16 plus 9.5% superannuation) and that the appellant did not produce any evidence of his financial incapacity to comply with the order, I am satisfied that the balance of convenience, in these circumstances, weighs against the appellant. Further, I have no reason to doubt if the appellant is wholly successful on appeal, that the respondent would not repay the amount ordered by the Commissioner.

[17] The above conclusion would be sufficient to reject the stay application, as it would not be necessary for the Commission to deal with whether the appellant had established an arguable case, with reasonable prospects of success in the appeal. That said, it was Mr Green's primary submission that he was denied an opportunity to cross examine Mr D'Agostino. This submission is plainly incorrect. The Commissioner conducted a determinative conference (indeed a number of determinative conferences) and not a formal hearing. This was perfectly understandable given both parties were unrepresented. However, I have reviewed the transcript of the proceedings, particularly that of 4 December 2017. It is plainly apparent that Mr Green cross examined Mr D'Agostino. Moreover, the Commissioner refers to and quotes the cross examination at para [46] of the Decision as follows:

'[46] In cross-examination, Mr Green put to Mr D'Agostino the following:

'MR GREEN: My version was, as you've rightly said I wasn't there on the Saturday; I came in on the Monday. The girls advised me that you had actually walked in and said that on the Saturday that you heard the place was being closed down. I then quizzed you on the Monday to say what's going on, and you just said oh, look, everyone knows about it by now, and then you actually stated to me that you'd wished Hayley - once I finally found out who you were talking about, which you were reluctant to talk about, you finally said that you wished Hayley would shut her mouth up, she keeps telling you all these bits and pieces; and then you did make comment about: I can't understand why she was doing that because she's killing her own job as well as killing the business. Do you remember that?

MR D'AGOSTINO: No. I don't know where you got that information from, Bob, and as I said, I didn't speak to you, you came up and you spoke to me, and the conversation that you had with me - because I don't have conversations with you - I just said I'd heard it through Tracey along with Tracy, and that's all there was to the story. There was nothing to do with Hayley.

MR D'AGOSTINO: There was nothing to do with Hayley, because Hayley never mentioned a thing.

MR GREEN: So you're denying that you said to me you wish she would have shut her mouth up?

MR D'AGOSTINO: I've never said that. Why would I say that about Hayley?''.

[18] It is obvious from this extract that far from being denied an opportunity to cross examine Mr D'Agostino, Mr Green most certainly did. It would seem he simply does not accept that the Commissioner preferred Mr Agostino's evidence; see: para [86] of the Decision, contrary to Mr Green's seventh ground of appeal, that Mr Agostino had committed perjury.

[19] Other of the grounds of appeal (and reasons why permission should be granted) are confusing or irrelevant (Ground 2, 5, 8 and 9) or incorrect. For example, Ground 10 seems to assert that the Commissioner was in error when she deducted certain running costs met by the respondent during her alternative employment as an Uber driver. This was not a payment met by the employer, but a deduction made when the Commissioner was considering the income earnt by the respondent since her dismissal, as the Commissioner was required to do under s 392(2)(c) of the Act.

[20] In addition, it is patently obvious that Ms Brace and Ms Faulks were contacted by telephone on 4 December 2017 and were cross examined by Mr Green and questioned by the Commissioner; see: PN75-PN145 of the transcript of the proceeding on 4 December 2017.

[21] In the present proceeding, I am satisfied Mr Green raised whatever he wished to put in supporting the stay application, including after my explanation of what he was required to satisfy the Commission of in respect to stay application principles. It is not the Commission's role to conduct the appellant's case for him merely because he is unrepresented; although the Commissioner noted he had engaged solicitors to prepare proceedings against Ms Bond sometime late last year; see: para [131].

[22] Nevertheless, from the submissions Mr Green put on 17 April 2018 and on an examination of his grounds of appeal, I am not satisfied the appellant has established an arguable case, with reasonable prospects of success. In the absence of anything more, it is difficult to envisage that the appellant's prospects of success on appeal are higher than problematic.

[23] For these reasons, I conclude:

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

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

[24] 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