Billboard Media v Zoe Zelman

[2020] FWC 411

[2020] FWC 411

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Billboard Media
v
Zoe Zelman
(C2020/127)

VICE PRESIDENT HATCHER SYDNEY, 31 JANUARY 2020

Appeal against decision of Deputy President Masson at Melbourne on 7 January 2020 in matter number U2019/9862.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 24 January 2020.

[2] Billboard Media has lodged an appeal, for which permission to appeal is required, against a procedural decision made by Deputy President Masson relating to directions issued by him in an unfair dismissal application.

[3] The background of this appeal is as follows. Ms Zoe Zelman lodged an application for an unfair dismissal remedy against the appellant, Billboard Media. That application was the subject of a hearing and decision on 20 December 2019. The decision was issued ex tempore and then subsequently published on 2 January 2020. 1 In his decision, the Deputy President found that Ms Zelman had been unfairly dismissed within the meaning of s 385 of the Fair Work Act 2009, and foreshadowed that a separate hearing would be required in relation to the issue of the remedy, if any, to be awarded for the unfair dismissal and that he would issue directions relating to the filing of submissions and other materials for the hearing concerning the question of remedy.

[4] In his decision the Deputy President made reference to the fact that an order for the attendance of a managerial employee of Billboard Media, Mr Randal Shreeve, had been issued but that he had failed to comply with that order and had not attended the hearing on 20 December 2019. At paragraphs [22] and [23] of the decision, the Deputy President said that in light of Mr Shreeve's non-attendance, the matter would be referred to the general manager of the Fair Work Commission for appropriate investigation and if deemed necessary, further action. The Deputy President noted that he considered the attitude of the respondent to the proceedings to have been contemptuous and deserving of censure.

[5] On 2 January 2020, Billboard Media lodged an appeal against the decision in relation to two matters: first, the Deputy President's decision to reject an adjournment request pertaining to the hearing of 20 December 2019 and, second, the order which the Deputy President had issued for Mr Shreeve to attend the hearing on 20 December 2019.  That appeal has been listed for hearing before a Full Bench on 2 March 2020.

[6] On the same day that the appeal was lodged, that is, 2 January 2020, the Deputy President issued directions as he had foreshadowed in the decision for the determination of the remedy, if any, to be awarded to Ms Zelman in respect of her unfair dismissal.  After those directions had been issued, on 7 January 2020, Billboard Media made an application to the Deputy President that those directions be deferred or vacated until the appeal it had lodged had been heard. Its application in this respect said:

“We believe that we are unable to assist fully and defend ourselves properly in matter U2019/9862 whilst the threat of criminal proceedings (6 months imprisonment) is an option.”

[7] It also noted that Billboard Media stated that it had legal advice that the directions must be stayed or adjourned until the appeal was determined or it risked particulars being provided to the Commission being used against it in a criminal prosecution.

[8] That request was refused by the Deputy President on the same day. In refusing that application, the Associate to the Deputy President who communicated the Deputy President's decision noted that the appeal that had been filed by Billboard Media had not been directed to the substantive outcome determined in the decision, that is, that Ms Zelman's dismissal was unfair.

[9] The present appeal before me is a second appeal lodged by Billboard Media on 8 January 2020 against that decision of 7 January - that is, the refusal of the Deputy President to vacate the directions relating to remedy.  The matter before me today, associated with that second appeal, is an application for a stay of the decision to refuse to vacate the directions pending the hearing and determination of the second appeal.

[10] I firstly observe that it does not appear to me that there is any operative order that is capable of being stayed - that is, the decision was to refuse an adjournment, and it does not seem to me to be the case that a refusal to grant an adjournment of directions is something that can be the subject of a stay.  What it appears Billboard Media actually seeks is a stay of the proceedings, not a stay of the decision under appeal.

[11] In any event, having regard to the principles applying to the grant of a stay articulated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd,  2 I am not satisfied that the application for a stay has any merit.

[12] I do not consider that in respect of this second appeal it is arguable with reasonable prospects of success, either as to permission to appeal or the merits of the appeal.  The adjournment that was sought of the further directions made by the Deputy President, as earlier stated, appears to relate to some concern that there would be exposure to self-incrimination if the matter went ahead and Billboard Media, particularly Mr Shreeve, participated.  I do not consider that proposition has any substance whatsoever. I note that in respect of the order for attendance, the only thing that has happened is that the issue has been referred to the General Manager for further investigation.  It appears to me to be a long bow to suggest that this will lead to some form of prosecution. 

[13] In any event, the further proceedings have no connection to the issue of any alleged non-compliance with an order for attendance. It is concerned with what remedy, by way of reinstatement or monetary compensation might be awarded to Ms Zelman for the dismissal which has been found to be unfair.  That has no logical connection to the issue of the order for attendance and I cannot possibly understand why the issue of any alleged non-compliance with that order would arise for consideration in relation to a hearing about a remedy for unfair dismissal.

[14] For similar reasons I do not consider that it has been demonstrated that the balance of convenience favours the grant of a stay.  Ms Zelman has successfully persuaded the Commission to find that her dismissal was unfair and she is entitled in those circumstances to proceed with her application and obtain any remedy that might be available to her.  So, in that sense, the balance of convenience favours the refusal of a stay.  I do not consider that any probative matter favours the grant of the stay.  As earlier indicated, there is no reason why in a hearing on remedy, the issue of any alleged non-compliance with an order for attendance on 20 December 2019 should even arise for discussion or consideration.

[15] Those are my reasons.  The application for a stay is refused.

VICE PRESIDENT

Appearances:

G Raines on behalf of Billboard Media.

Hearing details:

2020.

Sydney (with video-link to Melbourne)

24 January.

Printed by authority of the Commonwealth Government Printer

<PR716197>

 1   [2020] FWC 5

 2   [2000] AIRC 785, Print S2639