BMM Productions Pty Ltd v Laura Toplass
[2023] FWC 3477
•22 DECEMBER 2023
| [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 any purported consultation, misapplied the law in relation to the effect of any failure to consult and failed to take into account a relevant consideration, namely that any purported consultation would not have changed the ultimate outcome. Finally, the Appellant contends that the Deputy President failed to take into account the mandatory criteria in s.392(2) in the assessment of compensation and reached a conclusion on the amount of compensation that was unreasonable and plainly unjust.
The Appellant also advances a number of grounds on which it says that it would be in the public interest for permission to appeal to be granted in relation to the decision at first instance. In short form, these are that the appeal raises novel questions of principle with general application, that the decision is on its face sufficiently affected by error to warrant appellate intervention and that the decision is discordant with previous Commission decisions.
In coming to a view about the prospects of an appeal in a stay application the Commission undertakes an assessment that is preliminary in nature since it does not have the benefit of the fully developed arguments of the parties. In relation to the first of the three broad grounds on the merits of the appeal, in my view, the Deputy President took an orthodox approach to the determination of the question of award coverage. He considered the evidence in relation to the duties of the Respondent, the coverage clause of the award in question, including the fact that the Award is an occupational award that covers employees wholly or principally engaged in clerical work as defined, and the terms of the classification structure and position descriptors in the Award. He then made a finding that the award applied to the Respondent’s employment. While the Appellant may disagree with the conclusion, I can discern no error of legal principle or failure in relation to relevant considerations that would allow me to conclude that the Appellant has raised a ground that discloses an arguable case with some reasonable prospects of success.
Nor am I so satisfied in relation to the second heading in the grounds of appeal. I do not accept the Appellant’s characterisation of the Deputy President’s decision that the Appellant’s failure to consult and the conclusion that the dismissal was not a genuine redundancy meant the dismissal was therefore unfair. The Deputy President clearly found that there was a failure to consult and took this into account in the overall exercise of weighing the various factors under s.387. He also took other matters into account as he was required to do. The Appellant also contends that the Deputy President misconstrued the law and failed to take into account a series of first instance decisions which the Appellant says stand for the proposition that in circumstances where consultation would have made no difference to the ultimate outcome, the failure to consult does not render the dismissal unfair. The proposition cannot be so baldly stated.
In Smith v Alice Car Care Centre Pty Ltd,[2] the Commission concluded that there was an absence of consultation and redundancy was inevitable but the Applicant was nonetheless unfairly dismissed.[3] In Clare v Bet Deck Pty Ltd,[4] the Commission cited with approval an earlier decision of Deputy President Hampton where it was said that ‘The weight to be given to be given to a failure to consult depends primarily on the degree to which, if any, the absence of proper consultation led to any unfair in practice.’[5]
However, there is an important point of distinction between the decisions to which the Appellant referred and the decision at hand. In each of the former, there was a finding that deployment was not reasonable or available. In this case, the Deputy President expressly concluded that there was scope for some accommodation of the Applicant’s position, and that the failure to consult denied her a real opportunity to keep her employment.[6] In the face of that finding the earlier cases are less apt. In the case of Maswan v Escada Textilvertrieb[7] the Commission observed:
If the outcome of consultation was less predictable the failure to consult over proposed changes could render the termination unfair.[8]
To the extent that the Applicant takes issue with the Deputy President’s findings of fact under this heading, I note that s.400(2) limits appeal grounds to those decisions involving a significant error of fact. I am not satisfied that there is an arguable case in relation to the Applicant’s contentions on these grounds of appeal.
Finally, the Deputy President considered the various matters relating to remedy as he was required to do. He did not overlook mandatory considerations. He applied the Sprigg formula and arrived at a remedy that necessarily involves the exercise of some discretion. I am not satisfied that the third broad ground of appeal discloses an arguable case with some real prospects of success.
Having concluded that the substantive appeal does not disclose an arguable case with some real prospects of success, it is unnecessary for me to deal with the remaining aspects of the stay application.
The application is dismissed.
DEPUTY PRESIDENT
[1] Kellow-Falkiner Motors Pty Ltd v Edghill[2000] AIRC 785.
[2] [2013] FWC 9093.
[3] Ibid, [53]-[55].
[4] [2023] FWC 2309.
[5] Ibid, [68].
[6] Laura Toplass v BMM Productions Pty Ltd[2023] FWC 3044, [28]. See also [31].
[7] [2011] FWA 4239.
[8] Ibid, [37].
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