Church of Ubuntu Inc v Lainie Chait
[2023] FWC 2618
•11 OCTOBER 2023
| [2023] FWC 2618 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Church Of Ubuntu Inc
v
Lainie Chait
(C2023/5941)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 11 OCTOBER 2023 |
Appeal against decision [2023] FWC 2405 and order PR766345 of Vice President Asbury at Brisbane on 18 September 2023 in matter number U2021/9704 – stay application – application refused.
This decision concerns an application for a stay order by Church of Ubuntu Inc pursuant to s 606 of the Fair Work Act 2009 (Cth) (Act). It is made in relation to an appeal against a decision[1] and order[2] of Vice President Asbury on 18 September 2023. The respondent to the appeal is Ms Lainie Chait.
The decision determined that Ms Chait’s application for an unfair dismissal remedy was made within the time required in s 394(2)(a) of the Act. However, the Vice President concluded in the alternative that should the finding that the application was made within time be incorrect, there are exceptional circumstances justifying the grant of a further period, taking into account the matters in s 394(3). The Vice President therefore ordered, to the extent necessary to do so, that the time for making Ms Chait’s application be extended to 9 November 2021.
By its Form F7 Notice of Appeal,[3] the appellant seeks a stay of the decision and order pending the outcome of its appeal. The stay is opposed by Ms Chait.
For the reasons that follow, the application for a stay is refused.
Procedural history
The application has a significant procedural history, which is relevantly summarised as follows.
By two Form F2 applications filed in the Commission on 29 October 2021, Ms Chait applied to the Commission for an unfair dismissal remedy. A third Form F2 application was filed by Ms Chait on 9 November 2021 under the cover of an email which identified that the application had been updated to clarify the name of the respondent.
The matter was allocated to the Vice President. At a Mention on 11 February 2022, the appellant raised a jurisdictional objection to the unfair dismissal application on the basis that Ms Chait was a contractor and not an employee, and had not been dismissed by the appellant.
The application proceeded to a hearing to deal with these objections on 30 May 2022. The Vice President issued an order dismissing the jurisdictional objections on 29 August 2022,[4] with reasons for the decision handed down on 7 November 2022.[5]
The appellant lodged an appeal on 18 September 2022. The Full Bench did not disturb the Vice President’s order and reasons for decision. However, the Full Bench granted permission to appeal on the limited basis that the question of whether Ms Chait’s application was filed within the time required in s 394(2) required determination in a manner consistent with the decision in Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited.[6] This is because the third Form F2 application filed by Ms Chait was lodged eight days outside the 21-day statutory timeframe in s 394(2) of the Act. The application was remitted to the Vice President to determine this matter.
On 18 September 2023, the Vice President issued a decision in which it was determined that Ms Chait’s unfair dismissal application was filed within the time required in s 394(2) of the Act.[7] However, the Vice President noted that the appellant had indicated an intention to appeal any decision that was made on this issue. Accordingly, to avoid further delay and uncertainty,[8] the Vice President determined that if her primary conclusion was incorrect, the time for making the application was extended on the basis that the Vice President was satisfied there are exceptional circumstances justifying the grant of a further period, taking into account the matters in s 394(3) of the Act.[9] The Vice President issued an order to this effect on 18 September 2023.[10] This is the decision and order now the subject of appeal in these proceedings.
Relevant principles
Section 606 of the Act gives the Commission the discretionary power to stay the operation of the whole or part of a decision the subject of an appeal. Section 606(1) of the Act provides as follows:
“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 deciding whether to exercise its discretion to grant a stay order, the Commission must first be satisfied that the appellant has an arguable case, with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal.[11] Further, the balance of convenience must weigh in favour of the order subject to appeal being stayed.[12] Accordingly, both “elements” are necessary conditions to the grant of a stay.
In determining a stay application, the Commission must assess the strength of the appellant’s case without the benefit of hearing the appellant’s full argument and usually without the opportunity to undertake a full analysis of the case materials. Accordingly, the consideration of whether the appellant raises an arguable case with some reasonable prospect of success is necessarily a preliminary assessment only.
The respective contentions
I discern from the appellant’s Form F7 Notice of Appeal that it raises four grounds of appeal.[13] First, the appellant contends that the Vice President’s order is void ab initio. It submits that there is nothing at law to appeal, nor is the appellant required to lodge an appeal other than to bring the matter to the attention of the Full Bench to have the matter set aside.
Second, the appellant contends that Ms Chait’s unfair dismissal application was the subject of an earlier hearing, and thereafter an appeal, prior to an extension of time being granted on 18 September 2023. The appellant contends that this is a jurisdictional error and an error of law. As a consequence, the appellant submits that the Vice President’s earlier decision and order is void, and so too is the decision and order of the Full Bench, and the decision and order under appeal in these proceedings.
Third, the appellant contends that the Vice President erred in law by altering the nature of the order made by the Full Bench upon remittal. That is, rather than determining whether Ms Chait’s unfair dismissal application was filed within the time required in s 394(2) of the Act, the Vice President considered whether the application was filed outside of time required in s 394(2) and whether a further period to make the application should be granted.
Fourth, the appellant contends that it was an error of law to grant an extension of time retrospectively, more than 18 months after a “void hearing” and “void appeal.”
Having regard to its grounds of appeal, the appellant’s position is that the Vice President acted upon a wrong principle at law, has been guided by irrelevant factors, mistaken the facts and failed to take a fundamental legal consideration into account. It says that in these circumstances, refusing to grant the stay would be unfair to it.
Ms Chait’s position is that the grounds of appeal advanced by the appellant do not disclose an arguable case of appealable error. Further, Ms Chait submits that her application for an unfair dismissal remedy was first filed with the Commission on 29 October 2021 and she has endured a lengthy delay. In these circumstances, Ms Chait contends that the balance of convenience does not favour a stay.
Consideration
It is apparent that the appellant considers there to be a “fundamental defect” in the proceedings to date, and that it is essential to bring this to the attention of the Full Bench so that the matter can be set aside.
As to the effect the grant of a stay would have on this course, the appellant confirmed that it is seeking a stay of the Directions issued by the Vice President on 20 September 2023 for the determination of Ms Chait’s unfair dismissal application. It is therefore apparent that what the appellant seeks in substance is a stay of the proceedings before the Vice President pending the hearing and determination of its appeal by the Full Bench.
Having regard to the position set out by Vice President Hatcher (as the President then was) in CFMEU v Collinsville Coal Operations Pty Limited,[14] I do not consider that s 606(1) of the Act empowers the Commission to stay the Directions. The issuance of the Directions was an administrative matter, separate from the decision and order under appeal. However, even if the Directions were taken to be an emanation of the operative effect of the decision and order (and thereby are capable of being stayed),[15] I am not persuaded that the balance of convenience would favour this course.
Consistent with the Directions, Ms Chait filed and served her evidence and submissions in support of her application by 4 October 2023. The appellant’s materials are due to be filed and served on 18 October 2023 followed by Ms Chait’s responsive material on 25 October 2023. The Directions provide that upon receipt of all material from the parties, the matter will thereafter be programmed for hearing. It is therefore apparent that the Vice President will not engage in any further substantive decision-making prior to at least 25 October 2023.
Concurrently, the appeal application will proceed to a hearing on the question of permission to appeal in the week commencing 30 October 2023. Any submissions sought to be relied upon by the appellant will be required to be filed before that date. The outcome of the appellant’s application for permission to appeal will be known within a two-week period from the date it is heard by the Full Bench. That being the case, the issue of balance of convenience turns only on whether the appellant should remain subject to the requirement to comply with the Directions pending the hearing and determination of its appeal. In my view, the appellant should remain under such a requirement.
Ms Chait filed her application for an unfair dismissal remedy on 29 October 2021. Notwithstanding Ms Chait’s actions in filing of the second and third applications which were the subject of consideration in the decision, it is apparent that the appellant has been on notice of Ms Chait’s challenge to the events that she says resulted in the cessation of her employment for nearly two years.
The appellant was served with Ms Chait’s evidence and submissions in support of her substantive application on or about 4 October 2023. Ms Chait’s position is that this material is materially unaltered from the evidentiary case she advanced in early 2022. It follows that the appellant has had the benefit of significant time within which to consider its response to Ms Chait’s application. Nevertheless, I observe that it remains open to the appellant to request from the Vice President a short extension to the timetable, in the manner contemplated by the Directions, to address any alleged unfairness and to ensure a fair hearing should the matter proceed.
Ongoing compliance with the Directions will carry the benefit of ensuring the substantive unfair dismissal application would be ready, or substantially ready, for hearing if permission to appeal is refused. In this way, the appeal application will not operate to further delay the final determination of Ms Chait’s unfair dismissal application in the event that the appellant’s appeal application does not succeed. In my view, these matters weigh decisively against the grant of a stay having regard to the passage of time since the application was made.
While the appellant contends that it would be unfair for the Commission to refuse the application for a stay, it does not contend that it will be prejudiced in the event that it remains subject to the Directions. Rather, the appellant’s position is that refusing to grant the stay would be contrary to “law and logic.” I do not consider that any prejudice will accrue to the appellant by refusing to grant the stay or that such a refusal will have any meaningful effect upon the appellant’s capacity to present its case in defence of the substantive application. By comparison, I consider that Ms Chait will be prejudiced if the stay is granted.
It follows from the above that I am not persuaded that the parties’ ongoing compliance with the Directions, in the circumstances of this matter, favours the grant of a stay.
Having regard to the above matters, and the conclusions reached, it is unnecessary to consider the appellant’s grounds of appeal in any detail in this decision. Even assuming, for the purposes of the stay, that the grounds advanced by the appellant disclose an arguable case with some reasonable prospects of success (both in respect of permission to appeal and the substantive merits of the appeal), the balance of convenience does not weigh in favour of a stay. Accordingly, the application for a stay cannot succeed.
Order and disposition
For the reasons given, the application for a stay order in the appellant’s Notice of Appeal is refused.
DEPUTY PRESIDENT
Appearances:
P. Burton for the appellant.
M. Swivel, of Barefoot Law, for the respondent.
Hearing details:
2023.
Melbourne (by Microsoft Teams):
October 10.
[1] [2023] FWC 2405
[2] PR766345
[3] Dated 5 October 2023
[4] PR745276
[5] [2022] FWC 2947
[6] [2022] FWCFB 234
[7] [2023] FWC 2405 at [21] and [76]
[8] Ibid at [20]
[9] Ibid at [21] and [76]
[10] PR766345
[11] Edghill v Kellow-Falkiner Motors Pty Ltd[2000] AIRC 785 at [5] approved on appeal in Kellow-Falkiner Motors Pty Ltd v Edghill[2000] AIRC 786
[12] Ibid; See also Coal and Allied Operations Pty Limited v Crawford and Others (2001) 109 IR 409 at [13]
[13] Notice of Appeal at 2.1
[14] Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited[2014] FWC 4276 at [11]
[15] See Certis Security Australia Pty Ltd v Gursharan Singh[2023] FWC 2057 at [12]
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