Cali Press Pty Ltd v Mr Shih Chieh Wu
[2023] FWC 708
•23 MARCH 2023
| [2023] FWC 708 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Cali Press Pty Ltd
v
Mr Shih Chieh Wu
(C2023/1490)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 23 MARCH 2023 |
Appeal against decision of Deputy President Boyce at Sydney on 28 February 2023 in matter number U2022/8340 – stay application
Cali Press Pty Ltd (Cali Press) has lodged an appeal, for which permission is required, against a decision and order[1] of Deputy President Boyce on 28 February 2023 in relation to Mr Wu’s unfair dismissal application. The Deputy President delivered his decision and reasons ex tempore and did not publish written reasons afterwards. The Deputy President’s order, which was published, provides:
A. [Cali Press] is pay to the [Mr Wu] the gross sum of $4,273.12 (subject to applicable taxation as required by law) by way of electronic funds transfer into [Mr Wu’s] nominated bank account.
B.[Cali Press] is to pay into [Mr Wu’s] nominated superannuation fund the sum of $448.68 (i.e. 10.5 percent of $$4,237.12).
C. Orders A. and B. above must be complied with within 14 days of the date of these orders.
In its notice of appeal, Cali Press contends that the Deputy President made errors of law and errors of fact in determining Mr Wu’s application. These were, in summary:
1.The Deputy President erred when, having found Mr Wu engaged in misconduct, holding that Cali Press was not able to terminate Mr Wu’s employment for serious misconduct and finding that the dismissal was unfair in these circumstances; and
2.The Deputy President misapplied the statutory test in s 387 of the Fair Work Act 2009 (Cth) (FW Act) in finding the dismissal unfair due to procedural fairness deficiencies including a lack of opportunity to respond having regard to the nature and gravity of the misconduct.
3.In the alternative, in relation to the issue of compensation, the Deputy President made a significant error of fact in finding that Mr Wu’s employment would have continued for a period of two months having regard to the findings that Mr Wu had engaged in misconduct, the nature and gravity of the misconduct, the risk to the health and safety of Cali Press’ other employees due to the misconduct and Mr Wu’s own evidence regarding his intention to leave employment with Cali Press.
In its notice of appeal, Cali Press seeks a stay of the operation of the Deputy President’s decision and orders pursuant to s 606 of the FW Act pending the hearing and determination of the appeal. Mr Wu opposes the grant of a stay.
This decision is concerned with the contested stay application. The stay application was the subject of a hearing before me earlier today.
The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd v Edghill.[2] Paragraph [5] of that decision states:
“[5] 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.”
In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials.[3] In this matter, there is a particular difficulty in assessing the merits of the appeal in that I do not currently have access to the Deputy President’s reasons for decision. Because Cali Press has the burden of persuading me that the appeal is sufficiently arguable to justify the grant of a stay, it was ultimately its responsibility to obtain and provide me with a copy of the transcript of the reasons for decision, or the audio recording of the reasons, in order to permit me to make at least a preliminary assessment of the merits of its appeal. It must therefore bear any consequences of its failure to do so.
In relation to the first and second grounds of appeal, Cali Press contended that, in his reasons, the Deputy President had found that Mr Wu had engaged in misconduct such as to constitute a valid reason for dismissal under s 387(a) of the FW Act, but had found procedural deficiencies under s 387(b) and (c) which he considered rendered the dismissal unfair. It contended that, in reaching this conclusion, the Deputy President erred in finding that Mr Wu’s misconduct did not warrant summary dismissal and did not give “sufficient regard” to the misconduct found to have occurred in his assessment of the fairness of the dismissal.
It is very difficult to assess the merits of these grounds without access to the Deputy President’s reasons. All I know about the misconduct found to have occurred is that I was told during the hearing before me that it involved abusive conduct on the part of Mr Wu. Mr Wu put in issue the accuracy of Cali Press’ characterisation of the Deputy President’s oral reasons and contended that his finding of misconduct was qualified in that Mr Wu was only found to be “partially responsible” for what occurred.
On the material before me, I cannot be satisfied that the first and second grounds of appeal are reasonably arguable. As to the first ground, I cannot conclude that it is reasonably arguable that the misconduct which the Deputy President found had occurred should have been characterised as serious misconduct warranting summary dismissal because I do not know what the Deputy President found. As to the second ground, I do not consider that any arguable case of error in the exercise of the Deputy President’s discretion has been identified. At its highest, Cali Press’ case is only that the Deputy President should, in his overall assessment under s 387, have given more weight to his finding under s 387(a) than he apparently did. However, having apparently taken into account all the factors prescribed by s 387, it was a matter for the Deputy President what weight was to be given to each of those factors in the required evaluative exercise. I note that it is not contended in the notice of appeal that the finding that Mr Wu’s dismissal was unfair was not reasonably available.
In relation to the third ground of appeal, Cali Press contended that the Deputy President erred in his determination of the amount of compensation because, in his assessment that Mr Wu would have been employed for a further two months had he not been dismissed, he failed to take into account that Mr Wu had indicated an intention to resign in a text message sent prior to his dismissal. Mr Wu agreed that he had sent this message but said that the contextual circumstances demonstrated in the evidence rendered this a matter of little weight. He did not dispute Cali Press’ contention that the Deputy President did not take this matter into account in his reasons concerning compensation.
By a fine margin, I am prepared to accept that the third ground of appeal is reasonably arguable and has some prospect of attracting the grant of permission to appeal. However, this is not a strong factor weighing in favour of the grant of a stay because, at its highest, the third ground of appeal might only result in some reduction of the compensation amount.
In relation to the balance of convenience, the only matter raised by Cali Press was that, if a stay was granted, it would be prepared to calculate and pay interest on the compensation amount if the appeal was ultimately unsuccessful. It did not contend that it would be caused any prejudice if a stay was not granted and the appeal was successful. For these reasons alone, I would not be satisfied that the balance of convenience weighs positively in favour of the grant of a stay. However, in addition, it is necessary to take into account that it was not in dispute that Cali Press has not complied with the Deputy President’s order. That order required the compensation amount to be paid to Mr Wu on or before 14 March 2023. The amount was not paid by that date, nor has it been paid to date. Cali Press was unable to advance any reason, let alone a reasonable excuse, for its non-compliance.
Failure to comply with an order made under Pt 3-2 of the FW Act constitutes a contravention of s 405 of the FW Act. In my view, if a party wishes to appeal such an order and have its operation stayed pending the hearing and determination of the appeal, it should file its appeal at a time sufficiently prior to the specified date for compliance under the order to allow the stay application to be heard and determined before that date. Where the date for compliance under the order is before the 21 days allowed to lodge an appeal under r 56(2)(a) of the Fair Work Commission Rules 2013 (Cth), it is not acceptable for an appellant to ignore the requirements of the order, file the appeal after the date for compliance has passed, and then expect that it will obtain the benefit of a stay order from the Commission. For the Commission to grant a stay order in that situation would, on one view, amount to it validating a prima facie contravention of s 405 of the FW Act. It is certainly a matter which, in this case, further weighs the balance of convenience against the grant of a stay order.
For the above reasons, the application for a stay order is refused.
PRESIDENT
Appearances:
C Mossman, solicitor, for the appellant.
S Wu, respondent, on his own behalf with T Cross.
Hearing details:
2023.
Sydney, video using Microsoft Teams:
23 March.
[1] PR751242
[2] [2000] AIRC 785, Print S2639
[3] Supreme Caravans Pty Ltd v Pham [2013] FWC 4766 at [9]
Printed by authority of the Commonwealth Government Printer
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