BMM Productions Pty Ltd v Laura Toplass - [2023] FWC 3477

[2023] FWC 3477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

BMM Productions Pty Ltd
v

Laura Toplass

(C2023/7954)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 22 DECEMBER 2023

Appeal against decision [[2023] FWC 3044] of Deputy President Slevin at Sydney on 22 November 2023 in matter number U2023/7436 – Stay application refused

This decision relates to an application for a stay order by BMM Productions Pty Ltd (the Appellant). The stay order is sought pursuant to s.606 of the Fair Work Act 2009(the Act) in relation to an appeal lodged by the Appellant against a decision of Deputy President Slevin on 22 November 2023. In the decision, the Deputy President determined that the termination of the employment of Ms. Laura Toplass (the Respondent) by the Appellant was not a case of genuine redundancy within the meaning of s.389 of the Act and that the Respondent had been unfairly dismissed. The Deputy President ordered compensation in the amount of $11,500.00 to be paid to the Respondent within 21 days. The Appellant now seeks a stay with respect to the order that requires it to pay the above amount to the Respondent within 21 days.

Section 606(1)of the Act provides 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.

It is well established that the Commission is required to be satisfied that there is an arguable case with some reasonable prospects of success, in respect of permission 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. The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.[1]

In relation to the substantive merits of the appeal, the Appellant’s contentions may be summarised under three broad headings. The first relates to the Deputy President’s conclusion that the Clerks - Private Sector Award 2020 (Clerks Award) applied to the employment of the Respondent. In reaching that conclusion, the Appellant contends that the Deputy President acted on a wrong principle of law, failed to take into account relevant considerations, took into account irrelevant considerations, made inconsistent findings of fact and reached a conclusion that was unreasonable and unjust. The second category relates to the Deputy President’s conclusions about the requirement for consultation in redundancy situations under the Clerks Award. The Appellant says the Deputy President made inconsistent findings in respect of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BMM Productions Pty Ltd v Laura Toplass

Details

AGLC: BMM Productions Pty Ltd v Laura Toplass [2023] FWC 3477
Case: [2023] FWC 3477
Decision Date: 22 DECEMBER 2023

CaseChat Overview and Summary

BMM Productions Pty Ltd appealed against a decision of Deputy President Slevin, who found that the company had unfairly dismissed Ms. Laura Toplass and ordered compensation of $11,500.00. BMM Productions sought a stay of the compensation order pending the appeal. The appeal hinged on whether the Fair Work Commission (FWC) should grant a stay order under s.606 of the Fair Work Act 2009. This requires the appellant to establish an arguable case with reasonable prospects of success and that the balance of convenience favours staying the decision.

The appellant argued that the Deputy President erred in determining that the Clerks - Private Sector Award 2020 applied to Ms. Toplass’s employment, that there was a failure to consult in redundancy situations, and that the compensation amount was unreasonable. The appellant contended that these issues raised novel questions of principle and were discordant with previous Commission decisions. However, the Deputy President’s determination on award coverage was orthodox and considered relevant evidence. The Deputy President correctly found that the appellant’s failure to consult and the conclusion that the dismissal was not a genuine redundancy meant the dismissal was unfair, as the outcome of consultation was less predictable. The Deputy President also applied the Sprigg formula correctly in assessing compensation.

Given that the appellant failed to establish an arguable case with some reasonable prospects of success, the appeal was dismissed. The balance of convenience did not favour staying the decision, as the Deputy President’s order was regularly made. Therefore, the stay application was dismissed.

Orders