Club Assist Pty Ltd v Yen Yap
[2022] FWC 1976
•27 JULY 2022
| [2022] FWC 1976 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Club Assist Pty Ltd
v
Yen Yap
(C2022/5155)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 27 JULY 2022 |
Appeal against decision [2022] FWC 520 of Deputy President Boyce at Sydney on 8 July 2022 in matter number U2021/9643 – stay application
This decision concerns an application for a stay order by Club Assist Pty Ltd pursuant to s 606 of the Fair Work Act 2009 (Cth) (Act). It is made in relation to an appeal against a decision of Deputy President Boyce (decision)[1] in which the Deputy President determined that Mr Yen Yap had been unfairly dismissed. The Deputy President ordered that Mr Yap be reinstated with his continuity of service maintained and paid lost remuneration from the date of his dismissal. The terms of the Order[2] require compliance by Club Assist within 21 days, being 29 July 2022.
By its Form F7 Notice of Appeal,[3] Club Assist seeks a stay of the whole Order pending the outcome of its appeal.
The stay application was heard on 26 July 2022. Permission was granted to the parties to be represented for the purposes of the hearing.
For the reasons that follow, I have determined that the stay order should be granted.
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.[4] Further, the balance of convenience must weigh in favour of the order subject to appeal being stayed.[5]
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 decision under appeal was made under Part 3-2 of the Act which concern the Commission’s unfair dismissal jurisdiction. Pursuant to s 400(1) of the Act, permission to appeal a decision under Part 3-2 of the Act will only be granted if the Commission considers it to be in the public interest to do so. Further, in accordance with s 400(2), to the extent that an appeal is on a question of fact, it can only be made on the ground that the relevant decision involved a significant error of fact.
Further, the aspect of the Deputy President’s decision which is the subject of the appeal concerns the exercise of the discretion to order reinstatement pursuant to s 390(1) of the Act. Errors with respect to discretionary decisions of a first instance decision maker must be of a kind identified by the High Court in House v R.[6]
Background
Club Assist conducts a roadside repair service. Mr Yap was dismissed from his employment with Club Assist as a Technical Roadside Responder (TRR) at the Chatswood Hub on 12 October 2021 due to unsatisfactory work performance. Club Assist’s position was that there had been a sustained failure by Mr Yap to achieve performance criteria over a period of approximately 18 months. It said it had exhausted all avenues to improve Mr Yap’s performance, but it was apparent that Mr Yap’s performance would not improve to the level required. In the alternative, Club Assist says that it had a valid reason to dismiss Mr Yap on the basis of his conduct. It is said that Mr Yap displayed a belligerent and disrespectful attitude towards his Manager and Club Assist more broadly.
Mr Yap’s position was that he was assessed against performance criteria that were not reasonable. Mr Yap said that to the extent that he did not achieve three identified KPIs on a number of occasions, this was not in all the circumstances so significant or serious as to warrant dismissal.
The Deputy President found that there was no valid reason for Mr Yap’s dismissal, that the dismissal was procedurally unfair, and the dismissal was harsh. The Deputy President therefore concluded that Mr Yap’s dismissal was unfair. These findings are not challenged on appeal.
As to remedy, the Deputy President considered that reinstatement of Mr Yap was not inappropriate and ordered as follows:
A. Club Assist Pty Ltd (Respondent) reinstate Mr Yen Yap (Applicant) to the position in which he was employed immediately before his dismissal, namely TRR roadside patrol officer. In this regard, the Respondent is to wholly comply within 21 days of the date of this Order.
B. The Respondent maintains continuity of service for the Applicant from the date of his dismissal to the date of reinstatement.
C. The Respondent pay to the Applicant an amount for the remuneration lost by him because of his dismissal (less applicable taxation as required by law), and including superannuation contributions, from the date of his dismissal on 12 October 2021 to the date of his reinstatement. Such an amount is to be paid into the Applicant’s nominated bank account within 21 days of the date of this order.
Context
Club Assist raises three grounds of appeal.
By its first ground of appeal, Club Assist contends that in determining that the reinstatement of Mr Yap was not inappropriate, the Deputy President failed to consider or gave inadequate weight to the following matters:
(a) The uncontested evidence that Mr Yap’s role at the Chatswood Hub had been replaced, and the only TRR role available into which Mr Yap could be reinstated would require at least a two-hour drive to the nearest location;
(b) Mr Yap’s uncontested evidence was that since his dismissal, he had commenced working another full-time job as a vehicle delivery coordinator. Mr Yap was therefore an employee of another employer as at the date of the decision; and
(c) the finding at [77](a) of the decision that “the Applicant did make the statements attributed to him in Mr. Ashton’s notations on CAPP meeting and KPI catch up sheets.”
Club Assist further contends by appeal ground two that the Deputy President failed to give sufficient (or any) weight to its submission that Mr Yap’s role at the Chatswood Hub had been replaced.
By appeal ground three Club Assist contends that in determining that the reinstatement of Mr Yap was not inappropriate, the Deputy President reached an unreasonable or plainly unjust outcome. Club Assist relies on five matters which it says demonstrate that the conclusion is embedded with unreasonableness.
In relation to permission to appeal, Club Assist’s position is that:
(a) the appeal grounds reveal a failure of the Deputy President to inter alia take into account material considerations, and therefore a failure to properly exercise the discretion to make an order for reinstatement;
(b) the grounds of appeal raise general matters of importance concerning the application and proper approach to the assessment of whether reinstatement is “not inappropriate” pursuant to s 390(3) of the Act;
(c) the Orders cannot practically be complied with; and
(d) the decision to reinstate Mr Yap and the Orders are otherwise attended by sufficient doubt to warrant their reconsideration by the Full Bench.
Mr Yap’s position is that none of the grounds of appeal trigger the public interest requirement under s 400(1) of the Act and nor do they disclose any reasonably arguable case of appealable error. Mr Yap submits that there is no substantive prejudice to Club Assist if a stay is not granted.
Arguable case with some reasonable prospect of success
In the determination of the stay application, it is necessary to deal only with appeal grounds 1(a) and 2.
Club Assist contends that the Deputy President did not refer to, or grapple with the uncontested evidence that Mr Yap’s role at the Chatswood Hub had been replaced, and the only TRR role available into which Mr Yap could be reinstated would require at least a two-hour drive to the nearest location.
Mr Yap’s position is that there was no evidence, and Club Assist did not advance any submission below, that Mr Yap’s role was limited geographically to a position at the Chatswood Hub. Mr Yap’s position was as a TRR and he was reinstated into that position. If the role of a TRR at the Chatswood Hub had been replaced, Mr Yap contends that it is not a matter that is relevant to reinstatement.
Further, Mr Yap submits that the evidence of the role being replaced was given in re-examination and in response to a question about trust and confidence. Mr Yap says that any difficulties occasioned by his reinstatement are not relevant. In any event, Mr Yap notes there are roles to be reinstated to, albeit located some distance from the Chatswood Hub.
At [72] of the decision, the Deputy President set out Club Assist’s closing submissions. This included the following:
79. Further, Mr Kinsella explained that the Applicant’s role has in any event been replaced, and there are no similar jobs available within the Respondent’s business within two hours of the hub the Applicant was previously based out of.
The above submission is made with reference to Mr Kinsella’s oral evidence at the hearing before the Deputy President. In response to a question regarding Mr Yap’s capacity to achieve his KPI’s if he were to be reinstated, Mr Kinsella said that:
[497]…finally the role itself in that area that it was in has actually now been replaced over the past couple of months, so even if we were to be able to consider to reinstate that it would not be anywhere near, and when I say nowhere near, it would probably require at least a two hour drive to get to the nearest location.[7]
Club Assist says that Mr Kinsella’s evidence in this respect is uncontested.
In the assessment of remedy, the Deputy President identified seven matters that formed the basis for his conclusion that the reinstatement of Mr Yap was not inappropriate. These dispositive reasons were separately listed at [77] of the decision, together with the following:
[77] Having considered the evidence and submissions of the parties, I do not consider that reinstatement of the Applicant is inappropriate, for the following reasons:
It is apparent from a review of the Deputy President’s dispositive reasons at [77] that the Deputy President has not addressed the evidence Mr Kinsella gave during the hearing, which is set out at [26] above. While [497] of the transcript is identified,[8] [77](c) of the decision appears to address a different issue discussed at [497] of the transcript concerning Club Assist’s contractual obligations.[9]
Mr Yap submits that by extracting Club Assist’s submission on this point at [72] of the decision, together with the broad statement at [77] that the evidence and submissions has been considered, the Commission can be satisfied that the Deputy President took Mr Kinsella’s evidence into account.
However, it may equally be said, for example, that the absence of any reference to this evidence gives rise to other inferences including that the Deputy President overlooked the evidence or alternatively, regarded the evidence to be immaterial such that he elected not to expressly address it.[10]
A remedy of reinstatement must always take into account the circumstances which have pertained since the relevant dismissal took effect.[11] The fact that an employer has filled the position previously occupied by the dismissed employee may be a matter that would rarely, of itself, justify a conclusion that reinstatement was inappropriate.[12] However, the failure to deal with Mr Kinsella’s evidence to this effect in the decision leaves open the question of whether the Deputy President considered the evidence at all.
In relation to ground 2, it has been recognised that a failure to address a submission centrally relevant to a decision may found the basis for concluding that the submission has not been taken into account. This may in turn establish a legal error.[13] While the Deputy President extracted the relevant submission as discussed above at [25], the Deputy President did not address the submission in his dispositive reasons at [77]. It is therefore open to question whether the submission was addressed.
I accept that grounds 1(a) and 2 give rise to questions upon which a conclusion cannot be formed at this preliminary stage in the absence of submissions addressing whether there is an arguable case of appealable error or submissions on the substantive merits of the appeal. I am satisfied that grounds 1(a) and 2 give rise to an arguable case, with some reasonable prospects of success, both in relation to permission to appeal and the substantive merits of the appeal. However, I am not in a position to assess the strength of that case. I consider it unnecessary to engage with the other grounds of the appeal.
Balance of convenience
The applicant for a stay must satisfy the Commission that the balance of convenience favours a stay. There is no prima facie position in favour of the stay of a reinstatement order.[14]
Mr Yap is currently employed. The nature of that arrangement is not before the Commission. At the hearing it was put that Mr Yap was prepared to leave his alternative employment to return to work with Club Assist, even if that carries some risk pending determination of the appeal.
Club Assist has confirmed that if a stay were granted it would pay into an interest-bearing trust account the amount that would have been payable to Mr Yap by way of lost remuneration pursuant to paragraph C of the Order pending determination of the appeal. Further, at the hearing, Club Assist committed to making payments of the amount of remuneration that would have been payable had Mr Yap been reinstated in accordance with paragraph A of the Order.
Mr Yap has not raised any concern that he would be at immediate financial or other risk if the stay were granted. Rather, Mr Yap has alternative employment. I am satisfied that holding money in an interest-bearing trust account for Mr Yap will effectively address any potential prejudice to him which may arise from the issuance of a stay order.
Further, should Mr Yap be reinstated, he would be paid directly and accrue entitlements as an employee. If Club Assist is successful on appeal, it would be unable to recover from Mr Yap the money paid to him or the entitlements he accrued in return for the services he rendered in the intervening period from 29 July 2022 to the determination of the appeal.
The absence of any significant prejudice to Mr Yap should the stay be granted, and the existence of prejudice to Club Assist should the stay be refused, satisfies me that the balance of convenience weighs in favour of the issuance of a stay order.
Conclusion
Having regard to the above matters and the conclusions reached, I am satisfied that I should exercise my discretion to order that the operation of the whole of the Order [PR743594] be stayed pending determination of the appeal. The order will require Club Assist to make payments into an interest-bearing trust account for the benefit of Mr Yap.
The stay order is issued with this decision.[15]
DEPUTY PRESIDENT
Appearances:
Mr M Minucci of counsel for the appellant
Mr P Boncardo of counsel for the respondent
Hearing details:
26 July 2022, by Microsoft Teams
[1] Yen Yap v Club Assist Pty Ltd[2022] FWC 520
[2] PR743594
[3] 20 July 2022
[4] 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
[5] Ibid; See also Coal and Allied Operations Pty Limited v Crawford and Others (2001) 109 IR 409 at [13]
[6] House v R (1936) 55 CLR 499
[7] Transcript of proceedings in matter U2021/9643 dated 27 January 2022 (Transcript) at [497]
[8] Cf footnote 155 of the decision
[9] Transcript at [479]
[10] Soliman v University of Technology, Sydney [2012] FCAFC 146 at [55]; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30; see also, Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
[11] Hatwell v Esso Australia Pty Lyd t/a Esso[2019] FWCFB 2895 at [32]
[12] Nguyen v Vietnamese Community in Australia[2014] FWCFB 7198 at [17] (citing Smith v Moore Paragon (2004) 130 IR 446 at 452)
[13] Soliman v University of Technology, Sydney [2012] FCAFC 146 at [55] citing WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21]
[14] Edwards v Telstra Corporation Limited [1998] AIRC 679, Print Q2467
[15]
Printed by authority of the Commonwealth Government Printer
<PR744213>
0
0