Commercial Facilities Management Pty Ltd T/A CFM Air Conditioning Pty Ltd v James McCarron

[2013] FWC 3906

[2013] FWC 3906

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604—Appeal of decision

Commercial Facilities Management Pty Ltd T/A CFM Air Conditioning Pty Ltd
v
James McCarron
(C2013/4711)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 JUNE 2013

Appeal against decision [[2013] FWC 3034] of Commissioner Bissett at Melbourne on 17 May 2013 in matter number U2012/13636.

[1] This is an application by Commercial Facilities Management Pty Ltd (the Appellant) for an order staying the order 1 issued by Commissioner Bissett on 5 June 2013. The Commissioner had ordered the Appellant to pay compensation of $13,060 in instalments to James McCarron (the Respondent) giving effect to her decision of 17 May 2013,2 which determined an application by the Respondent, pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment by the Appellant. The stay order is sought pending the determination of an appeal against the decision and order of Commissioner Bissett.

[2] The application for the grant of a stay order is to be determined on the basis recorded in the decision of a Full Bench of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd and P Edghill 3 as follows:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect 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.

[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.” [references omitted]

[3] The appeal grounds raised by the Appellant are primarily directed to alleged error by the Commissioner in relation to conclusions reached by her on the evidence. The appeal is concerned with the making of a discretionary decision and is subject to the approach in House v The King. 4 Further, since the appeal rests on questions of fact, it is subject to the additional requirements in respect of an appeal in relation to matters under Part 3-2 of the Act, that it is in the public interest to grant permission to appeal and the decision involved a significant error of fact,5 in addition to the conventional considerations in s.604 of the Act.

[4] It follows that in the current appeal, an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal requires the establishment of an arguable case that is in the public interest to grant permission to appeal and that the decision of Commissioner Bissett involved a significant error of fact.

[5] The central issue raised in the appeal is that Commissioner Bissett made a significant error of fact in finding that there was no objective evidence from the Respondent as to the actual performance of the Applicant. It was said in the appeal document that this lead the Commissioner to conclude that there was no valid reason for the termination of the Applicant’s employment. The Appellant at the stay hearing was not able to point to the evidence that, it was said, Commissioner Bissett overlooked.

[6] The Appellant also alleged that Commissioner Bissett erred in calculating the amount of compensation by deducting six weeks pay not seven weeks pay. The Appellant was not able to explain this alleged error at the stay hearing.

[7] The Appellant also submitted that the Commissioner erred in failing to deduct monies for the misconduct of the Respondent. Commissioner found that the incident at the party was not a relevant consideration as it had no relation to work. The Appellant did not expand on this point in the submissions at the stay hearing.

[8] The Appellant submitted that it was not in the public interest to allow an improperly decided decision to stand. It was said that the decision if allowed to stand would set a precedent. Further it was said that as both parties were self represented it was necessary for guidance to be given by a Full Bench to a member as to how they should exercise their discretion to ensure that fair go all round is afforded to parties.

[9] The Appellant submitted that the balance of convenience favoured the granting of the stay order. The Appellant submitted that the instalments would be paid into an interest bearing account controlled by the Appellant. The Appellant submitted that the company faced financial difficulties.

[10] The Respondent opposed the stay. However most of his submissions went to the question of the appeal itself. As I explained to the Respondent the Appellant is entitled to appeal. Its motives for doing so are not an issue in the stay application. The Respondent expressed concern that if the Appellant was in financial difficulties there was a real chance that he would not receive the benefit of the order if he succeeded in defending the appeal.

Conclusion

[11] At the conclusion of the hearing I advised that I would not grant the stay and I would publish my reasons. These are my reasons.

[12] The Appellant did not establish that there was an arguable case. The Appellant was not able to explain how it was put that Commissioner Bissett had made a significant error of fact. The Appellant at the hearing repeated what was in the appeal documents. While it is not necessary for the Appellant to run their appeal at the stay hearing it is necessary for the Appellant to make some case in support of its contentions.

[13] Nor am I satisfied that an arguable case has been made out in respect of the public interest. The public interest grounds raised by the Appellant primarily rested on the proposition that Commissioner Bissett erred in reaching her decision, a proposition which has not been made good, even at the level of an arguable case, in the stay hearing.

[14] There were no submissions other than the difficulty faced by the Appellant in making the payments that supported a conclusion that the balance of convenience favoured the Appellant. The Respondent submitted that the delay may mean he will not receive the benefit of the Commissioner’s decision.

[15] Since I am not satisfied that there is an arguable case, with some reasonable prospect of success, in respect of either the question of leave to appeal and the substantive merits of the appeal, and I am unable to find that the balance of convenience favours the Appellant. I decline to make an order staying the 5 June 2013 order of Commissioner Bissett.

[16] The appeal proper will be listed before a Full Bench for determination in due course.

DEPUTY PRESIDENT

Appearances:

S Lock for the Appellant.

J McCarron on his own behalf.

Hearing details:

2013.

Melbourne:

June 14.

 1   PR537599

 2   [2013] FWC 3034

 3   Print S4216 at paragraph 4. See also Print S2639 at paragraph 5

 4 (1936) 55 CLR 499

 5 Section 400 of the Fair Work Act 2009

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