Appeal against decision [2025] FWC 2783 of Commissioner Walkaden at Sydney on 18 September 2025 in matter number U2025/4135 – Stay application – Stay sought against order for reinstatement – Stay granted on conditions.

Introduction

Leigh Moiler was employed by Cowra Meat Processors Pty Ltd (CMP) until he was dismissed on 19 March 2025. Following his dismissal, Mr Moiler applied to the Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). The matter was allocated to Commissioner Walkaden. On 18 September 2025, the Commissioner handed down his decision.[1] The Commissioner found that Mr Moiler had been unfairly dismissed and that it was appropriate for Mr Moiler to be reinstated. On that day, the Commissioner ordered that Mr Moiler be reinstated within 14 days of the decision and that the continuity of his service be maintained.

On 26 September 2025, CMP filed a notice of appeal seeking permission to appeal and to appeal from the decision under s 604(1) of the Act. In its notice of appeal, CMP sought a stay of the orders made by the Commissioner. The application for a stay was listed before me on 2 October 2025. CMP was represented by Anthony Harding of counsel and Mr Moiler was represented by Cathy-May Gill, an industrial officer employed by the Australian Meat Industry Employees Union (the AMIEU). Later that day, I made orders granting the application for a stay subject to certain conditions, including that CMP pay Mr Moiler the wages and other payments he would have received had he been reinstated pending determination of the appeal. These are my reasons for making that order.

Background and submissions

Prior to his dismissal, Mr Moiler had been employed by CMP as a production worker at its abattoir in Cowra in New South Wales for approximately eight years. The reasons given for Mr Moiler’s dismissal in the letter of termination were that Mr Moiler had been absent from work without explanation between 3 March and 14 March 2025 and that, when he returned to work on 17 March 2025, he left his shift early without notifying his supervisor and engaged in multiple outbursts towards other staff members, including specific incidents involving a particular employee, Mr Brown, and another unidentified employee. The letter of termination asserted that Mr Moiler’s behaviour was unacceptable in light of its Anti-Harassment, Discrimination and Bullying Policy and Code of Conduct. At the hearing of the unfair dismissal application, CMP also relied on other allegations being that Mr Moiler had: (a) made racist comments towards other staff members, (b) engaged in bullying behaviour towards other staff members, (c) refused to follow instructions from management including regarding the need to train other staff, and (d) displayed a hostile attitude towards staff…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cowra Meat Processors Pty Limited v Leigh Moiler

Details

AGLC: Cowra Meat Processors Pty Limited v Leigh Moiler [2025] FWC 2968
Case: [2025] FWC 2968
Decision Date: 3 OCTOBER 2025

CaseChat Overview and Summary

Cowra Meat Processors Pty Limited appealed against a decision of Commissioner Walkaden that Leigh Moiler was unfairly dismissed and should be reinstated. The appeal was brought pursuant to s 604 of the Fair Work Act 2009 (Cth) (the Act) and was heard by Vice President Gibian. The Commissioner had found that Mr Moiler had been unfairly dismissed and that it was appropriate for Mr Moiler to be reinstated. The Commissioner ordered that Mr Moiler be reinstated within 14 days of the decision and that the continuity of his service be maintained. In its notice of appeal, CMP sought a stay of the orders made by the Commissioner. In its submissions, CMP argued that it had an arguable case, with reasonable prospects of success, based on significant errors of fact identified in the decision of the Commissioner. CMP also relied on the concerns expressed by two of its employees, Bonnie Stewart and Stephanie Taylor, in relation to the return of Mr Moiler to the workplace and the potential adverse consequences of re-establishing the employment relationship in circumstances in which it may be interrupted again if the appeal is successful. In response, Mr Moiler submitted that the appeal does not have good prospects of success, and the grounds of appeal do no more than express dissatisfaction with the factual findings made by the Commissioner. He also submitted that it would be detrimental to his well-being and mental health for Mr Moiler to be excluded from the workplace.

In granting the stay, Vice President Gibian observed that although it was not the usual course to grant a stay in an appeal against a reinstatement order, in the particular circumstances of this matter it appeared to be undesirable for the employment relationship to be re-established whilst the appeal against the reinstatement order was pending. The appeal was able to be listed before the Full Bench in the middle of November and, accordingly, the delay that will be occasioned by the stay was likely to be relatively short. CMP had proffered an undertaking to pay Mr Moiler his usual salary pending the determination of the appeal so as to address any financial disadvantage that would be caused by a stay being granted. Mr Harding confirmed that CMP would not seek to recover the amounts paid irrespective of the outcome of the appeal. Given these factors, Vice President Gibian was satisfied that it was appropriate to grant a stay in this matter.

For these reasons, Vice President Gibian made an order staying the orders made by the Commissioner on condition that CMP pays Mr Moiler an amount equal to the wages and other payments the respondent would have received had he been reinstated on a fortnightly basis in the period from 2 October 2025 until the appeal is determined and not seek to recover those amounts irrespective of the outcome.

Orders