Boom Logistics Limited v Bell and Mackay

[2013] FWC 1017

[2013] FWC 1017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Boom Logistics Limited
v
Chris Bell; Tyson Mackay
(C2013/172)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT SYDNEY, 20 FEBRUARY 2013

Appeal against decision - application for stay order.

[1] At the conclusion of the hearing on 12 February 2012, the application for a stay order was refused. The reasons for that decision are as follows.

[2] This is an application for a stay order by Boom Logistics Limited (the Company). 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 Company against a decision 1 of Commissioner Booth. In the decision, the Commissioner determined that two employees of the Company, Mr Bell and Mr Mackay, had been unfairly dismissed. The Commissioner ordered that Mr Mackay be reinstated in employment and that Mr Bell be paid an amount of compensation in lieu of reinstatement.

[3] The Company has sought to have both the reinstatement order and the decision to order compensation stayed pending the hearing of the appeal.

[4] It was not contested by the parties that the conventional approach to the determination of a stay application is to consider whether there is a sufficiently arguable case that permission to appeal would be granted and that the appeal would succeed, and whether the balance of convenience favours the making of a stay order.

[5] In relation to Mr Bell, the Commissioner decided not to order that he be reinstated in employment with the Company. In so deciding, the Commissioner took into account the following considerations:

• The Company’s management had genuinely lost confidence and trust in Mr Bell and considered him to be aggressive, difficult and a potentially harmful presence in the workplace; 2



• Mr Bell expressed no willingness to change his behaviour or to deal effectively with the managers who had expressed grave concern about his presence in the workplace, and Mr Bell merely disagreed with any proposition that reinstatement would be difficult or an issue; 3and



• On balance, there was insufficient trust to make the employment relationship viable, particularly in light of the aims of the Company seeking to reform its “toxic” culture. For the Company not to take the steps to improve a workplace culture which had been found to include bullying and racism would expose it to legal claims and an unproductive workplace. 4

[6] The Commissioner ordered that if the parties were not able to agree on an appropriate level of compensation for Mr Bell, they should provide submissions on this matter. 5 In this regard, the Commissioner noted that the requirements of s.392(2) of the Act would need to be considered before making any determination as to the amount of such compensation to be ordered.6

[7] In relation to Mr Mackay, the Commissioner ordered that he be reinstated by the Company in another position on terms and conditions no less favourable than those on which he was employed immediately before the dismissal. 7 The Commissioner gave the following reasons as to why reinstatement was appropriate:

• Mr Mackay showed remorse for his conduct and demonstrated an appropriate attitude necessary for the employment relationship to be productive and viable; 8



• The approach taken by the Company in relation to another employee (Mr Alcock) who was disciplined in relation to the same two incidents by way of warning suggested that a warning rather than termination may have been an appropriate disciplinary action in Mr Mackay’s circumstances; 9and



• Mr Mackay had no prior disciplinary warnings on his employment file and was not employed by the Company during the period covered by the report for the Company that was prepared as a response to complaints of bullying and harassment in the workplace. 10

[8] In these circumstances, the Commissioner found that Mr Mackay should be reinstated in his employment.

[9] The abovementioned matters were taken into consideration in reaching my conclusion in relation to the application for stay orders. It is also noted that the appeal by the Company was lodged only after an appeal was filed by Mr Bell against the decision not to order his reinstatement.

[10] In respect of the decision and orders made in relation to Mr Mackay, I am not satisfied on the basis of what was put before me in the stay proceedings that there is a sufficiently arguable case that permission to appeal would be granted and that the appeal would succeed. In this regard it is noted that s.400(1) of the Act provides that permission to appeal will only be granted in unfair dismissal appeals if it is in the public interest to do so.

[11] The Commissioner’s reasoning as to why the dismissal of Mr Mackay was held to be unfair and reinstatement was the appropriate remedy is clear and understandable. In reaching the decision, the Commissioner had regard to the relevant legislative provisions and to a range of other considerations including the gravity of Mr Mackay’s conduct, the period of employment, the approach taken by the Company in relation to the disciplining of other employees and considerations relating to the future conduct of the employment relationship.

[12] Having regard to such matters, there would seem to be little prospect of the appeal succeeding in relation to the orders relating to Mr Mackay.

[13] In respect of the decision and orders made in relation to Mr Bell, I am not satisfied that the balance of convenience would favour the making of the stay order even if there was an arguable case that permission to appeal would be granted and the appeal grounds were established.

[14] In this regard it is noted that the order and directions issued by the Commissioner in relation to Mr Bell envisage that there would be discussions between the parties to determine an appropriate amount of compensation and, in the event that the parties were unable to agree, there would be a process before the Commissioner to determine the compensation issues. This process has not yet been completed and there has been no final determination made by the Commissioner as to the amount of compensation to be paid to Mr Bell.

[15] The effect of not making a stay order will be to allow the discussions between the parties to continue and, if necessary, the process for the determination of the amount of compensation by the Commissioner to be completed.

[16] It is desirable that these steps be taken. This might lead to an outcome acceptable to the parties and may obviate the need for the appeals. It would provide the parties with a finalised determination of the outcome of the proceedings before the Commissioner. This would assist the Full Bench in the consideration of the appeals and may avoid the possibility of further proceedings and appeals in relation to these matters.

[17] In so deciding, it is noted that the Company would be at liberty to make a further stay application in the event that an order for the payment of compensation is made and payment is required to be made before the disposition of the appeals.

[18] For the above reasons the application by the Company for a stay of the decision and orders of the Commissioner was refused.

SENIOR DEPUTY PRESIDENT

Appearances:

A Slevin of counsel and C Newman of the Construction, Forestry, Mining and Energy Union for Chris Bell and Tyson Mackay.

M Rinaldi of counsel and W Swain for Boom Logistics Limited.

Stay hearing details:

2013.

Sydney, Melbourne and Brisbane (video hearing):

February 12.

 1   [2013] FWC 81.

 2 Ibid at [100].

 3 Ibid at [104].

 4 Ibid at [105].

 5   Ibid at [111] and see PR532907.

 6 Ibid at [110].

 7   PR533101.

 8   [2013] FWC 81 at [112].

 9 Ibid at [114].

 10 Ibid at [115].

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