Bank of Sydney Ltd v Repici

[2015] FWC 5511

[2015] FWC 5511

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Bank of Sydney Ltd T/A Bank of Sydney
v
Ms Pasqualina Repici
(C2015/4952)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 13 AUGUST 2015

Appeal against decisions [[2015] FWC 4571], [[2015] FWC 4963] and Order PR569654 of Commissioner Cribb at Melbourne on 8 July 2015 and 21 July 2015 in matter number U2014/15399.

[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 10 August 2015. Bank of Sydney Ltd made an application under s.604 of the Fair Work Act 2009 (Act) seeking permission to appeal decisions [[2015] FWC 4571], [[2015] FWC 4963] and Order PR569654 of Commissioner Cribb made at Melbourne on 8 July 2015 and 21 July 2015 in relation to an application made by Ms Pasqualina Repici under s.394 of the Act.

[2] The Commissioner concluded on fine balance that Ms Repici’s dismissal was harsh.  The Commissioner indicated that she was satisfied that there was a valid reason, including the fact that there had been a serious breach of procedures which would have had a negative impact on the bank and its customers. However, the Commissioner concluded that as the actions of Ms Repici were not deliberate, and as Ms Repici was working in a busy branch and was in the process of moving desks, then taking into account Ms Repici’s explanation, which the Commissioner concluded was reasonable, combined with the Commissioner’s finding that Ms Repici was not accorded procedural fairness during the disciplinary process, the dismissal was harsh.

[3] The Commissioner separately issued a decision in which she awarded an amount of compensation of $20,630.08 in lieu of reinstatement, less appropriate taxation to Ms Repici. This amount is to be paid within 21 days of the date of the order.  The order for compensation was made on 21 July 2015, and consequently, the date by which the order is required to be complied with is 11 August 2015.

[4] The appellant sets out numerous grounds on which it says the Commissioner erred.  It has also foreshadowed some further grounds which are to be added pursuant to an application to amend the notice of appeal.  The appellant also seeks permission to lead further evidence in relation to a material fact concerning whether or not Ms Repici moved desks at the time at which the documents at issue were discarded by Ms Repici.

[5] Those are matters which need not be determined today.  They will be determined by a Full Bench which deals with this matter at a later stage.  The question for determination today is whether the order made by the Commissioner on 21 July 2015 should be stayed.  A person aggrieved by a decision made by a single member of the Commission may only appeal the decision pursuant to permission via the Commission.

[6] Unlike appeals against decisions under other provisions of the Act, permission to appeal a decision in relation to an unfair dismissal remedy will only be granted if the Commission considers that it is in the public interest to do so.  If an error of fact is said to have been made by the first instance decision-maker in relation to an unfair dismissal remedy application, an appeal will only be available if the error identified is a significant error of fact.  More generally, other errors said to have been made by the first instance decision-maker must be of the kind identified by the High Court in House v R 1.

[7] The principles that are to be applied in considering whether to grant a stay need to be applied in the context of the statutory constraints on appeals of this kind.  The principles are well established.  In deciding whether to exercise my discretion to grant a stay, I need to first be satisfied that there is an arguable case with some reasonable prospect of success, both in relation to permission to appeal and the merits of the appeal. Secondly I also need to be satisfied that the balance of convenience favours the grant of the stay order that is sought.

[8] In reviewing the grounds of appeal, I note that most of the grounds concern the weight that the Commissioner attributed to particular evidence.  Generally speaking, it will be an insufficient basis for a successful appeal that an appellant takes issue with the weight attributed to particular relevant matters, by a first instance decision-maker.  Consequently, to the extent that the grounds of appeal concern the weight attributed by the Commissioner to certain matters, I am not persuaded that there is an arguable case with some reasonable prospects of success, either on the question of permission or the merits of the appeal in relation to those matters.

[9] There are two matters, however, on which I am persuaded that there is a relevantly arguable case.  The first of those concerns the question of the failure by the Commissioner to take into account in the calculation of compensation an amount paid by the appellant to the respondent in lieu of notice.  The Commissioner made clear in the first decision that the fact that the appellant had paid the respondent an amount in lieu of notice would be a matter that the Commissioner would take into account in the calculation of the final compensation amount.  That is to be found at paragraph [66] of the Commissioner’s first decision.

[10] It also seems clear on the face of the second or further decision issued by the Commissioner on 21 July 2015 that the payment in lieu of notice was not taken into account.  Consequently, I am satisfied that there is an arguable case with some reasonable prospect of success, both as to permission and on an appeal, that the Commissioner did not correctly apply or have regard to all of the matters in s.392(2) of the Act.

[11] The second matter in relation to which I am persuaded that there is an arguable case relates to the Commissioner’s conclusion that the respondent was not accorded procedural fairness.  It seems to me that on a review of the material, there is an arguable case that the factual findings which support the conclusions at [19], [20] and [21] of the Commissioner’s first decision were not supported by the evidence and, in particular, the reference to the respondent not having an opportunity to review the documents seem arguably to be inconsistent with the evidence. There is therefore an arguable case that there were significant errors of fact, which formed the foundation of the denial of procedural fairness finding.

[12] There is also some controversy about whether the respondent moved her desk at or about the time that the documents were disposed of.  It seems to me arguable that there was an insufficient basis on the evidence for the Commissioner to reach the conclusion that she did.  It seems clear that both the question of procedural fairness and the question of moving desks were not insignificant factors in the Commissioner’s conclusions.  This is apparent at paragraph [47] of her first decision.  I also note that the Commissioner concludes at paragraph [46] that she determines on fine balance that the dismissal was harsh.

[13] It is arguable therefore that a different conclusion would have been reached but for these findings which are arguably erroneous. 

[14] In those circumstances, I am satisfied that there is an arguable case with some reasonable prospect of success, both in respect of permission to appeal and in relation to the merits of the case insofar as the calculation of compensation is concerned and in relation to the two matters that I have just identified.

[15] Turning then to the balance of convenience, the principal proposition advanced by the appellant is that the respondent is in some financial difficulty and that if it were required to make good the payment pursuant to the Commissioner’s order, in the event of a successful appeal, either in part or in whole, it would seem that the appellant would have some difficulty in recovering the award of compensation from the respondent.

[16] The respondent had indicated to my chambers by email dated 4 August 2015 that she was unable to attend the scheduled hearing in person and she would make written submissions in relation to the stay application.  Those written submissions were also received by email in my chambers on 4 August 2015.  Relevantly, the respondent indicates that she is in some severe financial hardship and is struggling to pay her bills without income.  She indicates that creditors have been calling her non-stop.  It seems to me in those circumstances that there is not an unjustifiable concern by the respondent that in the event that it is successful in its appeal it may encounter some difficulty in recovering the sum awarded.

[17] In applications of this kind, the stronger the arguable case, the less reliance that needs to be placed on exceptionally strong balance of convenience grounds in order to warrant the grant of a stay order.  Conversely, the weaker the arguable case, the stronger must be the balance of convenience grounds.  I note that the appellant is prepared to give an undertaking to the effect that if a stay were granted it will deposit the sum that would otherwise have been payable to the respondent pursuant to the Commissioner’s order, into an interest bearing bank account and will make the payment, together with interest, to the respondent in the event that the appellant fails in its appeal.  That is not an insignificant matter in my consideration.

[18] In the circumstances, I am satisfied that the balance of convenience also favours the grant of a stay. A stay order will be made and I will issue a stay order later today.  The stay order will contain a condition that on or before the date due for the payment of the monies pursuant to the Commissioner’s order, the appellant pay into an interest bearing bank account the sum of $20,630.08 and I will note the undertaking that that amount, together with the interest earned, will be paid to the respondent in the event that the appellant is unsuccessful in the appeal.

[19] Of course, that is subject to any further order that the Commission might make in that it may be the case that the appellant succeeds only in relation to part of its appeal, that is on the question of the calculation of compensation and consequently the appellant will be required to make good the payment pursuant to any new order that might be made.

[20] A stay order was separately issued in PR570647.

DEPUTY PRESIDENT

Appearances:

M. Khoury on behalf of Bank of Sydney

Hearing details:

Melbourne

2015

10 August

 1   House v R [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936)

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