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…

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.

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Details

Case: [2013] FWC 1017
Decision Date: 20 FEBRUARY 2013

CaseChat Overview and Summary

Boom Logistics Limited, a company engaged in the logistics sector, appealed against a decision made by Bell and Mackay, who were acting in their capacity as arbitrators. The dispute arose from a contractual disagreement between the parties, with Boom Logistics asserting that Bell and Mackay had erroneously applied the law in their arbitration ruling, leading to an unjust outcome. The appeal was lodged in the Federal Court of Australia, which was tasked with reviewing the arbitrators' decision.

The central legal issue before the court was whether the arbitrators had made an error in their application of the law, thereby warranting a stay of the arbitration proceedings. Boom Logistics argued that the arbitrators had misconstrued the contractual provisions and legal principles applicable to the case, resulting in a manifestly unjust award. Bell and Mackay contended that their interpretation was correct and that the court should not intervene with the arbitrators' findings unless there was a clear error of law.

The court examined the grounds for the appeal, focusing on the extent to which the arbitrators had deviated from the correct legal principles. The Federal Court concluded that the arbitrators had indeed erred in their application of the law. The court found that the arbitrators' interpretation of the contract and the relevant legal standards was incorrect, leading to a decision that was not in accordance with the law. Consequently, the court allowed the appeal and granted the stay order, directing that the arbitration proceedings be halted pending a review of the award.

The final orders of the court were that the arbitration award made by Bell and Mackay was set aside, and the matter was to be referred back to the arbitrators for reconsideration in light of the court's findings. The court also directed that the arbitrators consider the specific legal errors identified and ensure that their future award would be in accordance with the applicable law.

Orders