Brazil Catering Pty Ltd v Olga Olefir
[2024] FWC 1840
•12 JULY 2024
| [2024] FWC 1840 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Brazil Catering Pty Ltd
v
Olga Olefir
(C2024/4588)
| VICE PRESIDENT GIBIAN | SYDNEY, 12 JULY 2024 |
Appeal against decision [2024] FWC 1584 of Deputy President Colman in Melbourne on 18 June 2024 in matter number U2024/2843 – stay application – stay refused.
Introduction
Brazil Catering Pty Ltd (Brazil Catering or the appellant) has filed a notice of appeal in relation to a decision of Deputy President Colman of the Fair Work Commission (the Commission) handed down on 18 June 2024. In the notice of appeal, the appellant seeks a stay of the decision and order. This decision concerns the stay application. A hearing was conducted in relation to the stay application on 12 July 2024. For the reasons outlined below, I have decided to refuse the stay application.
The decision concerned an application under s 394 of the Fair Work Act 2009 (Cth) (the Act) by Olga Olefir seeking an unfair dismissal remedy. Ms Olefir was employed as a causal retail assistant by the appellant which operates a delicatessen in Hampton in southeast Melbourne. Ms Olefir’s employment came to an end around 1 March 2024. Ms Olefir contended that her dismissal was unfair because it was for no good reason and she was not afforded a fair process. The appellant denied that Ms Olefir was dismissed by it and contended that, if there had been a dismissal, it was not unfair.
The application was determined by Deputy President Colman who conducted a hearing on 12 June 2024. In his decision, the Deputy President found that Ms Olefir had been dismissed as a result of a course of events which commenced on 25 February 2024. It is sufficient to observe that Ms Olefir left work early on 25 February 2024 following a confrontation in relation to her making a telephone call during work time. Her manager, Mr Totos, sent Ms Olefir a text on 1 March 2024 stating: ‘Hi Olga, I hope you’re feeling better, please note that there are no shifts available this weekend. Abhi will be in touch with you for any further shifts. Thanks.’ Ms Olefir subsequently asked Mr Totos whether she was still employed and received no response. The Deputy President found that the only available inference from Mr Totos’ failure to reply to this message was that her employment had been terminated. Further, Ms Olefir was never contacted about any further work.
The Deputy President then found that the Small Business Fair Dismissal Code had not been complied with and considered whether the dismissal was harsh, unjust or unreasonable. The Deputy President found that there was no valid reason for dismissal as it had not been established that Ms Olefir did any wrong, that she was not notified of any valid reason or given an opportunity to respond to any reasons for dismissal and considered the other factors listed in s 387 of the Act. Taking all those matters into account, the Deputy President concluded that the dismissal was patently unfair.
The Deputy President was satisfied reinstatement was not appropriate. He found that, had she not been dismissed, Ms Olefir would have continued in the employment for at least a further year. Taking into account the other considerations in s 392(2) of the Act, the Deputy President determined that, after applying the compensation cap, the amount of compensation should be the remuneration received by Ms Olefir in the 26 weeks preceding her dismissal. From that figure, the Deputy President deducted the amount Ms Olefir had earned since her dismissal producing a compensation amount of $10292.89 plus 11% superannuation (being a total of $1,132.22). That amount was ordered to be paid within 28 days, that is, by 16 July 2024.
The appellant seeks a stay of the order for compensation pending determination of the appeal. Mr Catalano, who appeared for the appellant as a paid agent with the permission of the Commission, raised an alternative that the compensation amount be paid into an interest-bearing account until determination of the appeal. Ms Olefir, who was assisted by her partner Mr Gregorian, opposed the granting of a stay and the alternative of the amount being paid into a bank account. She said the compensation should be paid now.
Consideration of Stay
The power to grant a stay pending the hearing and determination of an appeal lodged under s 604 is contained in s 606(1), which provides:
(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.
In Kellow-Falkiner Motors Pty Ltd v Edghill[2000] AIRC 758, Ross VP (as his Honour then was) summarised the approach to be adopted in considering an application for a stay pending appeal as follows:[1]
In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave 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 approach adopted by the courts in deciding whether to stay a judgment pending appeal is similar.[2] The principles applied in those cases were usefully summarised in Re Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192 at [19]. It is also appropriate to note that an applicant for a stay must positively demonstrate that the balance of convenience must weigh in favour of a stay being granted. There is no prima facie position in favour of the granting of a stay and the grant of a stay is not to be regarded as the usual course.[3]
The grounds of appeal sought to be advanced by the appellant are set out in a document annexed to the notice of appeal. The grounds allege that the decision was plainly unjust and unreasonable and contrary to the overwhelming weight of the evidence and contained significant errors or fact and/or that the Deputy President took into account irrelevant factors, had mistaken the facts and failed to take into account relevant factors. The document set out some particularisation of the grounds which it is unnecessary to set out in detail for the purposes of the stay application.
Having reviewed the grounds of appeal, I have some doubts about their cogency. The grounds substantially seek to challenge factual findings or contend that the Deputy President failed to have regard to various aspects of the evidence. Those grounds are likely to confront challenges in demonstrating that the threshold in s 400(2) of the Act is met and of demonstrating that there is a sufficient basis for overturning those findings having regard to the advantages enjoyed by the Deputy President in seeing and hearing the witnesses give evidence. The challenge to the discretionary decision involving the assessment of compensation is also difficult. However, I note that Mr Catalano indicated that the appellant proposed to brief counsel and there is at least potential for the grounds to be clarified or expanded. I am prepared to assume, for present purposes, that there are arguable grounds for the appeal.
The balance of convenience, however, does not favour the granting of a stay. Mr Catalano advanced no argument on the balance of convenience other than that the appeal had been set down in September and the period for which the stay was sought was short. Although the appellant appears to be a small company, there was no material before the Commission to suggest that the compensation order would cause it any immediate financial difficulty. Mr Catalano did not suggest there were any overwhelming financial reasons for the stay. The available material falls short of demonstrating a positive case for a stay.
On the other hand, Ms Olifer lost her employment in March. The Deputy President’s decision recorded that she had earned only $192.50 since her dismissal although she appears to have had other weekday employment at the same time as working for the appellant. The Deputy President also found that Ms Olefir has family in the war zone in Ukraine, including her mother, and had been using money from her employment with the appellant to send to help her family. In light of Ms Olefir’s circumstances, the balance of convenience does not favour staying the decision of the Deputy President.
Mr Catalano raised one further matter. He suggested that Mr Totos was overseas and there may be practical difficulties with arranging payment in compliance with the compensation order by 16 July 2024. It is far from clear to me why payment could not be arranged from overseas, particularly in circumstances in which the appellant has known of the order since 18 June 2024. In any event, that is not a matter relevant to the stay application. If there is a genuine practical difficulty with complying with the order in the time provided, that is a matter that ought to have been taken up with the Deputy President by way of an application to vary the order.
For these reasons, I order that the application for a stay be refused.
VICE PRESIDENT
Appearances:
J Catalano, paid agent for the Appellant.
O Olefir and A Gregorian, for the Respondent.
Hearing details:
2024.
Sydney (via video link):
12 July.
[1] Kellow-Falkiner Motors Pty Ltd v Edghill[2000] AIRC 758 at [5].
[2] See, for example, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694; Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66.
[3] Supreme Caravans Pty Ltd v Pham[2013] FWC 4766 at [11] citing Edwards v Telstra Corporation Limited [1998] AIRC 679, Print Q2467.
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