Christopher Ross v Australian Postal Corporation

[2024] FWC 1290

[2024] FWC 1290

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Christopher Ross
v

Australian Postal Corporation

(C2024/2830)

DEPUTY PRESIDENT SLEVIN SYDNEY, 16 MAY 2024

Application to stay refusal of President Hatcher at Sydney on 6 May 2024 to amend directions in appeal matter number C2024/2635. Application for a stay refused.

1. This is an application for stay orders in an appeal that Mr Ross has lodged against a refusal by the President of the Commission on 6 May 2024 to a request made by Mr Ross to vacate directions in another appeal that he seeks to bring against a decision of Commissioner Harper-Greenwell.[1] In the current matter Mr Ross seeks stay orders that have the effect of adjourning the hearing of the other appeal. This decision deals with the application for those stay orders.

1. The proceedings before the Commissioner involved an application under s. 365 of the Fair Work Act 2009 alleging a dispute over dismissal in which he alleged his employer, Australian Postal Corporation (APC), had contravened Part 3-1 of the Act. His application was made outside the standard time limit of 21 days found in s. 366. Mr Ross made application to extend the time for filing his application. The Commissioner refused to extend the time limit and dismissed his application.

1. Mr Ross’s appeal against the Commissioner’s decision was lodged on the day of the decision, 26 April 2024. Directions were issued on 3 May 2024 setting a program for the conduct of the appeal. Hearing of that appeal is listed for 12 June 2024. Mr Ross is due to file his submissions in support of that appeal on 17 May 2024. In two emails to the President’s chambers dated 3 May 2024 Mr Ross asked that the hearing of the appeal be adjourned and the directions be vacated. His reasons for doing so were threefold. Two of those reasons appear unrelated to the appeal and the third was he wished to seek legal advice and needed time to do so. He was informed on 6 May 2024 that the President refused his request for an adjournment. In this appeal he seeks to appeal that refusal and seeks orders, which are described as stay orders which are to the effect that the other appeal be adjourned.

1. The power to stay decisions is found in s. 606. The Commission may order that the operation of the whole or part of a decision that is under appeal be stayed on any terms and conditions that the Commission considers appropriate, until a decision in the appeal is made.

1. The stay orders sought are to the same effect as the request made to the President; they seek that the hearing of the appeal be adjourned and the direction that he file submissions on 17 May 2024 be vacated. Mr Ross relies on a series of emails in support of the orders. The emails point to attempts that he has made to gain legal representation and advice. One of the emails is from a law firm which has scheduled a conference with Mr Ross for 21 May 2024. APC opposes the application for stay orders.

1. Section 606 permits the making of orders staying the operation of orders. In the ordinary course an applicant for stay orders seeks that the decision under appeal not operate while the appeal is being heard. For example, an employer required to reinstate an employee may seek a stay of that decision until the appeal from the decision is heard and determined.

1. The decision that Mr Ross seeks to appeal was an interlocutory decision. It was a decision not to adjourn proceedings. It was not a decision that had any operative effect. The refusal of the application to vacate the hearing and associated directions did not give rise to anything capable of being stayed pending appeal. A stay of the refusal to adjourn would simply put Mr Ross in the position he was before making the adjournment request. The earlier directions and listing would remain in place.

1. The stay orders sought however go beyond a stay of the refusal to adjourn. One of the orders seeks an adjournment of the other appeal. The second order seeks to vacate a direction to file material. They are not orders available under s. 606. They may be available as final relief in the appeal. It will be for the Full Bench which hears the appeal to determine whether, first permission to appeal should be granted, then whether the appeal should be upheld, and if it is, what final orders should be granted.

1. Given there is no operative decision to stay and the orders sought are beyond the power conferred by s. 606 the application for stay orders is refused. 

1. During the proceedings I advised Mr Ross that a Full Bench would hear his application for leave to appeal expeditiously, and before 12 June 2024 which is the date for hearing the other appeal.

1. A notice of listing has issued separately for a hearing on the question of permission to appeal in this appeal to occur on 4 June 2024. If in the meantime Mr Ross has an appointment to see a lawyer on 21 May 2024, he is free to make a further request to the President’s chambers that the directions for his submissions in the other appeal be extended.

1. The application for stay orders is dismissed. 

DEPUTY PRESIDENT

Appearances:

Mr C Ross, the Applicant

Ms N Cini, for the Respondent.

Hearing details:

2024.
by Video.
14 May.

[1] [2024] FWC 1098.

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