Acupuncture Australia Pty Ltd v Miss Wendy Elton

[2015] FWC 1394

[2015] FWC 1394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Acupuncture Australia Pty Ltd
v
Miss Wendy Elton
(C2015/1797)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 27 FEBRUARY 2015

Appeal against decision [2015] FWC 864 of Deputy President Asbury at Brisbane on 4 February 2015 in matter number U2014/7697 - application to stay order PR560752.

[1] This decision arises from a stay application heard on Friday, 27 February 2015. The background is as follows.

[2] On 23 February 2015, Acupuncture Australia Pty Ltd (“the Appellant”) filed an appeal, for which permission is required under s.604 of the Fair Work Act 2009 (“the Act”), against a decision [[2015] FWC 864] and order (PR560752) of Deputy President Asbury issued on 4 February 2015.

[3] At that time, the Appellant sought a stay of the Deputy President’s order in respect of the payment of compensation amounting to $29,070 less taxation.

[4] The amount of was ordered to be paid within 21 days of the decision and order being issued, with 25 February 2015 being the 21st day. On that day (25 February 2015) I was allocated the stay application to determine. The application was listed for midday on that day and telephone messages were left with both the Appellant and the Respondent. Neither made an appearance at the hearing as listed.

[5] The matter was listed subsequently for Thursday 26 February 2015 but this date was vacated owing to the unavailability of the Respondent (for reason that she had commenced full-time work and was not able to attend). The stay order was eventually heard on the afternoon of Friday 27 February 2015.

[6] The Deputy President’s order was in the following terms:

A Pursuant to s. 392(1) of the Fair Work Act 2009, and further to a decision issued by the Fair Work Commission on 4 February 2015 in [[2015] FWC 864], the Fair Work Commission orders:

1. Within 21 days of the date of this order, Acupuncture Australia Pty Ltd pay to Ms Wendy Elton the amount of $29,070 less taxation required by law, in lieu of reinstatement.

B This order will operate from 4 February 2015.

[7] The approach to stay orders essentially requires that 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 to this, the Commission must be satisfied that the balance of convenience rests in favour of the order which is subject to the appeal being stayed.

[8] A hearing for a stay order does not allow me the benefit of a full hearing of the Appellant’s case, and my evaluation of its strength, while more than cursory, is nonetheless far from determinative.

[9] In this particular instance, the Appellant contends that the Deputy President misunderstood or ignored significant facts; accepted a biased account of the evidence from the Respondent without adequate reasons; and misapplied her jurisdiction in respect of remedy by ordering an amount of compensation that amounted to 8 months (which is above the statutory ceiling of six months).

[10] Some of the key appeal points are that the Deputy President:

• Misunderstood the role of weekly sales reports in relation to the bonus scheme that operated at the Appellant’s business;



• Accepted without reason the Respondent’s claims that the Appellant had regularly made threats to dismiss her because of her sales performance;



• Gave undue weight to a single performance management e-mail of 2012 which was unrelated to the Respondent’s dismissal;



• Misunderstood the facts in relation to the production of weekly sales sheets by the Respondent; and



• Did not give weight to the significantly increased volume of deleted invoices in the period prior to September 2013 and the period September 2013 to April 2014.

[11] According to the Deputy President’s decision, the Respondent was dismissed by the Appellant on a summary basis on grounds of “what can be broadly categorised as theft and fraud.”

[12] The Appellant believed that the Respondent had engaged in corporate theft and fraud “involving cash, credit card, PayPal and direct deposit.”

[13] The Deputy President’s decision turns on her finding that:

“I do not accept that [the Appellant] had established that there was any theft or fraud perpetrated against the Company.”

[14] The Deputy President also held that there was no reasonable basis upon which the Appellant could have relied for purposes of reaching a sound state of belief that the Respondent had mis-conducted herself in the manner claimed. Thus the Small Business Fair Dismissal Code did not have application in respect of the summary dismissal.

[15] The Appellant did not rely upon any direct evidence in relation to the summary dismissal but instead relied on what appeared to be inferences arising from certain conduct and asserted trends in business sales or income.

[16] The Deputy President evaluated this evidence as it was and concluded that it did not give rise to any reasonable inference that there had been any act of fraud or otherwise.

[17] The Deputy President continued and concluded that there were no business trends such as fluctuations in sales or cash flows that provided any basis on which to infer that some person had been engaged in theft:

“[The Appellant's] starting point was to assert that cash and credit card sales are down and that there had been invoices deleted. [The Appellant] provided no primary evidence in the form of business or accounting records upon which to base this assertion. He did not do so at the time that he dismissed [the Respondent] or when he referred the matter to the police. At that point this matter was heard, [the Appellant] did not provide any primary or source material upon which its assertions about the reductions in cash and credit card revenue or about the number of deleted invoices.”

[18] Consequently the Deputy President found that:

“There was no valid reason [for the] dismissal [and that she was] unable to be satisfied that [the Respondent] engaged in a misconduct [as] alleged.”

[19] Further to this, the Respondent’s allegedly suspicious behaviour was evaluated by the Deputy President, who concluded that her [the Respondent’s] conduct in printing off various documents and not revealing their content openly was readily explicable other than by reference to any fraudulent conduct.

[20] The Deputy President’s decision therefore rested principally upon the failure of the Appellant to establish as a matter of fact that there had been any theft or fraud to begin with, let alone any demonstrated theft or fraud which could in any way be related to the Respondent’s conduct.

[21] Even if it were found that the Deputy President had not given sufficient weight to the increased volume of deleted invoices it does not appear to me that it is possible to insinuate as a consequence that the Respondent was culpable in this respect. Again, no indicative cash loss was alleged and the Respondent was not the only employee in a position to delete invoices.

[22] The Deputy President pointed out that there were 3 employees who undertook invoicing, cash sales, credit sales and online sales.

[23] The appeal grounds are directed, largely at least, at matters that do not attack the core finding of fact set out above.

[24] The Appellant also claimed that the Deputy President erred for reasons that her decision was handed down 15 weeks 3 days after the hearing and fell outside the Commission benchmark.

[25] Such an observation is not a ground of appeal, unless some wider case were made that the passage of time was such that the evidence was not capable of being properly assessed. No such claim was made by the Appellant.

[26] The Appellant also contended that if the other appeal ground failed the amount ordered in remedy “be reassessed for six months of pay and not an eight-month of pay granted by the Deputy President.”

[27] An examination of the Deputy President’s decision shows that she evaluated the period of anticipated employment of the Respondent (but for her dismissal) as being eight months. The Deputy President then deducted 25% for contingencies plus another amount which she considered to be appropriate. The deduction for contingencies necessarily meant that the remedy was for six months and not eight months as the Appellant seems to claim. The calculations for the amount to be paid by the Respondent as ordered by the Deputy President further demonstrate that she took into account the deduction for contingencies and the amount ordered to be paid therefore appears not to have exceeded the statutory “compensation cap” of 26 weeks (s.392(5) of the Act).

Conclusion

[28] My view of the argument on appeal is that it does not present an arguable case on appeal and has no reasonable prospect of success, either on the merits or in relation to the prospect of permission to appeal being granted.

[29] Having concluded so there is no requirement for me to consider whether or not the balance of convenience favours the granting of the stay order.

[30] I will not grant the stay application as a consequence.

[31] I do indicate, however, that the Respondent should be under no misapprehension that in the event that the appeal is unsuccessful she would be susceptible to an action to recover the monies that have been paid to her by the Appellant.

[32] In concluding I do note that the Appellant raised with me in the hearing and his various (supplementary e-mail) written submissions that the scale of the monetary amount ordered him to pay by the Deputy President was such that he was unable to make a single payment at one time.

[33] Section 393 of the Act provides as follows:

393 monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[34] The Appellant is at liberty to approach the Member at first instance in this regard (though as indicated above the requirement to pay the amount in compensation came into effect on 25 February 2015).

SENIOR DEPUTY PRESIDENT

Appearances:

Mr I. Kwoh-Gain, Appellant

Ms W. Elton, Respondent

Hearing details:

By telephone

2015

27 February

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