Bendigo Health Care Group v Francis Logan

[2016] FWC 7251

[2016] FWC 7251

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Bendigo Health Care Group
v
Francis Logan
(C2016/5818)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 OCTOBER 2016

Appeal against decision ([2016] FWC 6780) of Commissioner Ryan at Melbourne on 14 September 2016 in matter number U2016/7692- application under s.606 of the Fair Work Act 2009 for a stay order.

[1] The following decision, now edited, was given in transcript on 6 October 2016.

[2] On 27 September 2016, Bendigo Health Care Group (“Bendigo Health”) lodged an appeal against a decision of Commissioner Ryan in which he reinstated Mr Francis Logan to the position he occupied immediately prior to his dismissal by Bendigo Health, with such reinstatement to take effect from 28 September 2016 and ordered Bendigo Health to treat the period of employment of Mr Logan not to have been broken by the dismissal.

[3] In its appeal, Bendigo Health seek a stay of the part of the Commissioner’s decision to reinstate Mr Logan to his position as a casual bank nurse from 28 September 2016. Section 606(1) of the Fair Work Act2009 (“the Act”) provides:

“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.”

[4] Before a stay order is granted, the Commission is required to be satisfied that an arguable case exists with some reasonable prospects of success in respect of both the question of leave to appeal and the substantive merits of the appeal and that the balance of convenience favours the granting of a stay. Each of the two elements must be established before a stay order will be granted.

[5] This test for granting a stay order was outlined by Vice President Ross (as he then was) in Edghill v Kellow-Falkiner Motors Pty Ltd. 1 That approach was subsequently confirmed by a Full Bench.2

[6] Section 400(1) of the Act applies to the appeal. Section 400(1) provides:

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

[7] Consideration of whether Bendigo Health’s appeal is arguable with reasonable prospects of success must therefore take into account its prospects of obtaining permission to appeal under s.400(1) of the Act.

[8] The required assessment of an appeal’s prospects of success for the purposes of determining a stay application is of a preliminary nature only. The Commission will not have had the benefit of hearing the appellant’s full argument and the opportunity to comprehensively peruse the case materials may not be available. 3

[9] Bendigo Health addressed those tests in written submissions which I have taken into account, and oral submissions. It has grouped the appeal grounds in two. The first group are grounds 1-5, going to the submission that the Commissioner erred by failing to find that kissing a patient was serious misconduct. The second grouping was grounds 6-10, going to the submission that the Commissioner erred by failing to find that reinstatement was inappropriate.

[10] As to the issue of permission to appeal, Bendigo Health raised a number of issues which it argued are in the public interest, including the doubt attending the decision, that it is inconsistent with the Full Bench Decision in Nguyen’s case 4 and issues it says are raised by the status of Mr Logan’s registration as a nurse, including:

• The protection of the public by ensuring that nurses engaged in the public health system are properly qualified and registered;



• The undermining of the public’s confidence in the registration and qualifications of nurses with whom they interact in the public health system by the reinstatement of a nurse who at best had a complete disregard about the truth of his declaration in renewing his registration or, as it now appears, was not properly qualified to apply for renewal of his registration; and



• The possible futility of the reinstatement order due to the lack of qualification of Mr Logan due to his failure to complete his CPD requirements and the necessity to report his false declaration to AHPRA.

[11] In response, Mr Logan submits that there is no prospect of success for either leave to appeal or the substantive merits of the appeal. He submits there was no error in the Commissioner’s findings that his behaviour constituted misconduct as opposed to serious misconduct and no error in relation to the decision to reinstate, in that the Commissioner correctly applied Nguyen’s case. On the question of public interest, Mr Logan submits that in essence, what is complained of is the manner in which the Commissioner balanced the considerations outlined in Nguyen’s case and that there could be no finding of misconduct in relation to Mr Logan’s actions regarding his registration.

[12] Based on the material before me and the respective arguments made by both parties and the particular circumstances of this case, I am satisfied an arguable case exists and there is a reasonable prospect for permission to appeal to be granted.

[13] As to the balance of convenience, I have weighed the matters in dispute in relation to Mr Logan’s registration as a nurse, which in a number of respects would require additional investigation and action to be undertaken, against the circumstances in which Mr Logan has found himself as a result of the termination of his employment.

[14] In circumstances where Bendigo Health is prepared to offer an undertaking that it would pay the amount that Mr Logan would otherwise earn in his position as casual bank nurse into its Solicitor’s Trust account from 5 October 2016 until a decision in relation to the appeal is made or the Commission makes a further order andthe application to appeal is likely to be heard and determined within a reasonably short period of time, I am prepared to grant the stay.

[15] Pursuant to subsection 606(1) of the Act, I order that the operation of the part of the decision [2016] FWC 6780 and order PR 585427 of Commissioner Ryan made at Melbourne on 14 September 2016 in matter number U2016/7692 requiring Bendigo Health to reinstate Mr Logan to his position as a casual bank nurse from 28 September 2016 be stayed on and from 6 October 2016 until a decision in relation to the appeal is made or the Fair Work Commission makes a further order subject to the condition that Bendigo Health Care Group must pay the amount that Mr Logan would otherwise earn in his position as casual bank nurse into its Solicitor’s Trust account from 5 October 2016 until a decision in relation to the appeal is made or until further order of the Commission.

[16] Where the parties are unable to agree to the amounts to be deposited, they will file their respective positions by 10.00 am Thursday, 13 October 2016, so that a further order can be made.

[17] An order will be issued giving effect to this decision.

DEPUTY PRESIDENT

Appearances:

Ms A Nelson of Counsel for the Appellant.

Ms R Preston of Counsel for the Respondent.

Hearing details:

2016.

Melbourne:

October 6.

 1   Print S2639

 2   Print S4216

 3   Supreme Caravans Pty Ltd v Hung Pham[2013] FWC 4766 at [9].

 4   Thinh Nguyen and Thanh Le v Vietnamese Community in Australia t/a Vitenamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR586268>