Cooke & Dowsett Pty Ltd v Mr Marios Andronicou

[2013] FWC 9174

[2013] FWC 9174

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Cooke & Dowsett Pty Ltd
v
Mr Marios Andronicou
(C2013/6751)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 26 NOVEMBER 2013

Appeal against decision [[2013 FWC 8097] and PR543617 of Commissioner Bissett at Melbourne on 22 October 2013 in matter number U2013/9311- Stay application.

[1] This is an edited version from transcript of the decision I delivered on 18 November 2013.

[2] The Appellant, Cooke and Dowsett Pty Ltd, is the former employer of Mr Marios Andronicou (Respondent) and has lodged an appeal against a decision 1 of Commissioner Bissett and accompanying order2 both of which were delivered on 22 October 2013. The Commissioner determined that the dismissal of the Respondent was unreasonable and unjust. The Commissioner was satisfied that reinstatement was inappropriate and ordered the Appellant to pay compensation of $28,566.94 to the Respondent and $2571.00 into the Respondent’s superannuation fund. The Appellant seeks a stay of the whole of the order for compensation.

Principles for staying the operation of a decision or order

[3] A person with standing who is aggrieved by a decision made by a single member of the Commission may only appeal a decision with the permission of the Commission 3. Unlike appeals against decisions made under other provisions of the Fair Work Act 2009 (Act), permission to appeal a decision related to an unfair dismissal remedy will only be granted if the Commission considers it to be in the public interest to do so4. If an error of fact is said to have been made by the first instance decision-maker in an unfair dismissal remedy related decision, an appeal will only be available if that error of fact is a significant error of fact5. More generally, other errors said to have been made by a first instance decision-maker must be of a kind identified in House v King6.

[4] The principles that are to be applied in considering whether to grant a stay order should be applied against the statutory constraints on appeals of this kind. Moreover, this tribunal and its predecessor have approached applications for a stay on the basis that, unless otherwise established, there is a presumption that the order or decision that is subject to appeal has been regularly made 7.

[5] It is well established that in deciding whether to exercise a discretion to grant a stay order, the Commission must first be satisfied that there is an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the merits of the appeal, and that the balance of convenience favours the granting of a stay order 8.

The grounds of appeal

[6] The Appellant in this matter sets out 10 grounds for appeal, and are summarised as follows:

1. The Commissioner was in error in rejecting the Respondent’s evidence as to reduction in staff members.

2. The Commissioner erred in refusing to find that the Respondent no longer required that job done by the Appellant to be done by anyone due to the operational needs of the business.

3. The Commissioner was in error in finding that, despite the starting and ending of projects being part of the normal operations of the business and business engaged in the building and construction industry, the end of a project constituted a major change in the organisazation of work of the Respondent.

4. The Commissioner was in error in finding that, the day to day normal change in requirements of the industry, being the construction industry, did not release the Respondent from its obligations to consult in accordance with clause 10 of the Cooke & Dowsett Pty Ltd and CEPU - Plumbing Division (Vic) enterprise Agreement 2011-2015.

5. The Commissioner was in error in finding that the requirement to consult under the Agreement was not met.

6. The Commissioner was in error in finding that the dismissal was not a genuine redundancy.

7. The Commissioner was in error in finding that the Respondent had an ongoing obligation pursuant to the Accident Compensation Act 1985 to employ the Applicant for a 52 week period from the date of the injury.

8. The Commissioner was in error in finding that the Respondent had an ongoing obligation pursuant to the Accident Compensation Act 1985 to continue to employ the Applicant even though the Applicant had a certificate of capacity returning him to his pre-injury duties.

9. Because of the errors referred to in paragraph 6,7 and 8 the Commissioner was in error in finding the Applicant would have remained in employment for 24 weeks beyond the date of dismissal.

10. Because of the errors referred to in paragraphs 6, 7, 8 and 9 the Commissioner was in error in the calculation of the amount of compensation to be paid to the Applicant.

Arguable case with some reasonable prospect of success

[7] I do not propose to deal with each individual ground of appeal. It is sufficient for present purposes to indicate that I am not satisfied, in respect of grounds 1 through 6 of the grounds of appeal, that there is an arguable case with some reasonable prospect of success, either in respect of permission to appeal or the merits of the appeal proper.

[8] Grounds 7 though 10 concern the proper construction of section 194 of the Accident Compensation Act 1985 (Vic) (AC Act).

[9] The Appellant argues that on the proper construction of the provision so far is relevant to the facts concerning the Respondent’s dismissal, at the relevant time that the Respondent was dismissed, he did not have an incapacity for work. Consequently, the period during which the Respondent did not have an incapacity is not counted as part of the employment obligation period identified in section 194 (1). This is because of the terms of subsection (4) of that section, and in particular paragraph (a).

[10] It is clear from the reasons for decision of Commissioner Bissett, that insofar as the Commissioner considered the question of remedy, she placed some reliance on a finding that the Appellant contravened the provision of the AC Act and relied in paragraphs [93] and [94] of her decision, on that contravention as a guide for determining the period that the Respondent would have continued to be employed, but for the termination.

[11] It seems to me arguable that, in so doing, the Commissioner relied upon that contravention in assessing the remuneration that the Respondent would have received, or would likely to receive, if he had not been dismissed. Therefore the Appellant had made out a sufficiently arguable case with some reasonable prospect of success that the Commissioner's conclusion that there had been a contravention of the AC Act was erroneous based upon a proper and alternative construction of section 194 of the AC Act. It follows that there is a sufficiently arguable case with some reasonable prospect of success that, in doing so, the Commissioner misapplied the requirements of section 392(2)(c) of the Act. If that is correct, it seems to me there is also a sufficiently arguable case with some reasonable prospect of success that permission to appeal should be granted.

Balance of convenience

[12] On the question of balance of convenience, the primary position in these matters is that the Respondents to this appeal should be entitled to the benefit of the decision that he has secured below. I am mindful that the Respondent would be looking forward to receiving and using the compensation that has been awarded, however I am also mindful of the difficulties that the Appellant might encounter in recovering any payment from the Respondent, should it be successful in all or part of its appeal. I note that the Respondent has given an undertaking that it will deposit the amount of the compensation order into an interest bearing account, and that is an important factor in weighing up the balance of convenience in this case. I am satisfied that the balance of convenience favours the granting of a stay.

Conclusion

[13] I therefore am of the view that, because there is a sufficiently arguable case with a reasonable prospect of success on the question surrounding the proper construction of the AC Act and the impact of that construction on the assessment of compensation and the balance of convenience favours the grant of the stay, that a stay order should be made. I will make an order staying the operation of the Commissioner’s order dated 22 October 2013 in PR543617. I will also make an order that the Appellant pay into an interest bearing account the sums as set out in paragraph 1 of the Commissioner’s order, that it do so by close of business on 20 November 2013, and that it advise the Respondent when that deposit has been made.

[14]
I will also order that, in the event that the Appellant is unsuccessful in its appeal, that it will forthwith pay those amounts, together with interest accrued, to the Respondent and to his superannuation fund respectively.. An order to that effect was issued on 18 November 2013 PR544670.

DEPUTY PRESIDENT

Appearances:

B. Shaw for the Appellant

G. Dirks for the Respondent

Hearing details:

2013

Melbourne.

18 November.

 1   2013 FWC 8097

 2   PR543617

 3   Section 604(1)

 4   Section 400(1)

 5   Section 400(2)

 6 (1936) 55 CLR 488; Note also the reference in the Explanatory Memorandum (EM) to the Fair Work Bill 2008 at [2320] to the decision in Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 referring to the application of House v King to appeals in the AIRC, and the intention expressed in the EM to maintaining this jurisprudence in relation to FWA appeals.

 7   Section 400(2)

 8   Kellow-Falkiner Motors Pty Ltd v Edghill, Full Bench AIRC, 17 March 2000 (Print S4216) and applied in this tribunal see for example Boom Logistics Limited v Bell and Mackay, [2013] FWC 1017 per Boulton J, GM Holden Ltd v Symonds, [2013] FWC 332 per Smith DP, Vondoo Hair v Crockett, [2012] FWA 9553 per Watson SDP, Vita Property Group Pty Ltd v Clayworth, [2012] FWA 6547 per Drake SDP, DesignInc (Sydney) Pty Limited v Xu, [2012] FWA 1088 per Watson SDP and Suncorp Staff Pty Limited v Brewer, [2012] FWA 823 per Boulton J

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