Clarita Langer v Robert Quinn t/a Pyrmont Car Store

[2014] FWC 8191

[2014] FWC 8191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Clarita Langer
v
Robert Quinn t/a Pyrmont Car Store
(U2014/5556)

VICE PRESIDENT HATCHER SYDNEY, 19 NOVEMBER 2014

Application for relief from unfair dismissal - interim stay.

[1] On 30 October 2014 I issued a decision 1 (Decision) and order2 (Order) requiring Mr Robert Quinn (trading as Pyrmont Car Store) to pay Ms Clarita Langer within 14 days the amount of $19,047.00, less any taxation amounts required to be deducted by law, as compensation for her harsh, unjust and unreasonable dismissal.

[2] On 13 November 2014 - the last day of the 14 days allowed by the Order for the specified payment to be made - Mr Quinn’s lawyers sent the Commission a letter addressed to me seeking that the operation of the Order be stayed. The letter relevantly stated:

“With respect, we are presently instructed to proceed with an appeal against the Decision by way of filing a Form F7 and intend to lodge a Notice of Appeal, including an application for a Stay on the Order within the Appeal Period. In that connection, the Respondent respectfully seeks an urgent variation to the Order, namely an extension of the period of time for the payment of the compensation from 14 days to 21 days and thereafter until such time when the application for a Stay on the Order is heard by a member of the Commission.

We have placed the Applicant’s legal representative on notice of our instructions to proceed with an appeal and have sought consent for an interim variation to the Order in the effect of an interim stay to extend the terms of payment to allow for the Notice of Appeal to be filed. We note that the Applicant’s legal representative does not consent to the proposed variation to the Order.

We intend to seek a stay pursuant to Section 606 of the Fair Work Act 2009 (Cth) by way of filing a Form F7, so that the Order would not take effect prior to a decision from an Appeal Bench.

In the circumstances, we respectfully submit that it is appropriate for your Honour to grant the Respondent an interim variation to the Decision and Order, such that any financial payments would not operate until after the application for a Stay on the Order is heard by a member of the Commission, which is consistent with the rights of appeal under the Appeal Proceedings Practice Note published on 11 April 2014. We enclose a Form F1 – Application lodged with the Commission today in this regard, for your reference.”

[3] The accompanying Form F1 identified the order that was sought as follows:

“The Applicant seeks that the Order issued by Vice President Hatcher dated 30 October 2014 in the proceeding U2014/5556 be subject to an Interim Stay such that the Order does not take effect until the Applicant’s application for a formal Stay Order is heard by a member of the Fair Work Commission.”

[4] Upon receiving this correspondence, I made directions permitting Ms Langer to file any submissions she wished to make in response to Mr Quinn’s application by close of business on 14 November 2014. Ms Langer’s lawyers filed a submission in accordance with that direction. In that submission, Ms Langer opposed the grant of the stay that was sought, and pointed out, among other things, that:

● no grounds of appeal had been identified such as to permit the assessment of the potential merit of any appeal that might be lodged;
● no reason had been given as to why any appeal could not have been lodged before the expiry of the 14 day period for payment in the Order; and
● no submission was made at the hearing by Mr Quinn seeking that any compensation order not take effect prior to the time allowed for the filing of an appeal.

[5] The power to grant a stay of a decision pending an appeal is provided for in s.606 of the Fair Work Act 2009 (the Act). Section 606(1) makes it clear that a decision may be stayed under that section only if an appeal application has actually been lodged. The provision does not empower the Commission to stay an order pending the determination of an appeal prior to the lodgment of an appeal.

[6] Mr Quinn has not specifically identified any provision of the Act empowering the Commission to make the “interim stay” order which he seeks. The reference to a “variation” to the Order in Mr Quinn’s correspondence may be an attempt to invoke the power conferred by s.603(1) to vary a decision. If so, my preliminary view is that the power conferred by s.603(1) is not properly to be used to vary an order in a way that stays its operation. The purpose of a variation to an order is to alter the terms of the order but not in a way that robs it of operative effect, whereas a stay order suspends the effect of the order pending the occurrence of some exterior event.

[7] However, it is not necessary for me to determine in a final way the scope of the power in s.603(1), because even if that provision (or some other provision of the Act) empowered the grant of Mr Quinn’s application, nothing has been put before the Commission to justify the grant of the application on the merits. As Ms Langer has submitted, Mr Quinn has not identified any grounds of appeal upon which the merits of a stay application might be assessed. The grant of a stay application will always be dependent upon the Commission being satisfied that there is an arguable case with some reasonable prospects of success in respect of both the question of permission to appeal and the substantive merits of the appeal. 3 The question of the prospect of permission to appeal being granted looms especially large in an appeal from an unfair dismissal decision because s.400(1) of the Act forbids the grant of permission to appeal unless it is considered that the grant of permission is in the public interest. Mr Quinn has put forward nothing which would allow the Commission to be satisfied on this score.

[8] Further (and again as submitted by Ms Langer), although Mr Quinn has apparently instructed his lawyers to lodge an appeal, no explanation has been advanced as to why an appeal has not already been lodged and a stay under s.606 sought in the ordinary way. The fact that the Commission’s rules permit an appeal to be lodged within 21 days does not explain why Mr Quinn, having presumably formed the view with the benefit of legal advice that there is a proper basis to appeal the Decision and Order, did not simply lodge an appeal rather than expending money and time on the making of the current application. There has also been no explanation advanced as to why Mr Quinn waited until the last day for compliance with the Order before taking any action at all in relation to the matter.

[9] Accordingly Mr Quinn’s application for an “interim stay” of the Order is dismissed.

[10] Finally I observe that, although s.577 requires the Commission to perform its functions and exercise its powers informally and without unnecessary technicalities, it is not appropriate to make a contested application for the Commission to exercise its powers by way of correspondence personally addressed to an individual member of the Commission.

VICE PRESIDENT

 1   [2014] FWC 7460

 2   PR556859

 3   Edghill v Kellow-Falkiner Motors Pty Ltd [2000] AIRC 785, Print S2639 at [5]

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