Dinith Jayasundera v Electricity Networks Corporation T/A Western Power
[2022] FWC 1953
•28 JULY 2022
[2022] FWC 1953 FAIR WORK COMMISSION
DECISION Fair Work Act 2009
s.604—Appeal of decision
Dinith Jayasundera
vElectricity Networks Corporation T/A Western Power
(C2022/4060)
DEPUTY PRESIDENT BEAUMONT
PERTH, 28 JULY 2022
Appeal against decision [2022] FWC 1611 of Commissioner Schneider at Perth on 27 June 2022 in matter number U2022/1299
[1] This decision concerns an application for a stay order by Mr Dinith Jayasundera (the Appellant). The stay order is sought pursuant to s 606 of the Fair Work Act 2009 (Cth) (the Act) in relation to an appeal against a decision of Commissioner Schneider issued on 27 June 2022,[1] which dealt with a stay application made by the Appellant in respect of his unfair dismissal application.
[2] Briefly stated, the Appellant is one of sixteen individuals who have applied to the Commission under s 394 of the Act for unfair dismissal remedies (the Unfair Dismissal Applications).[2] The Applicants and Respondent in the Unfair Dismissal Applications have agreed that the Appellant’s unfair dismissal application[3] and that of another applicant[4] will be heard and determined as test cases in the Commission.[5]
[3] It is apparent that the reason for the Appellant’s dismissal was his purported non-compliance with the Critical Infrastructure Worker (Restrictions on Access) Directions (Critical Infrastructure Directions).[6] Whilst pursuing his application for unfair dismissal, the Appellant has initiated proceedings in the Supreme Court of Western Australia (Supreme Court) challenging the validity of the Critical Infrastructure Directions.
[4] On 5 May 2022, the Appellant’s representative filed a Form F48, application for directions on procedure (the Procedure Application), which requested:
a) a stay of the Applications pending determination of the Supreme Court civil matter 1194/2022 – Jayasundera v Andrew Robertson (Chief Health Officer) (Jayasundera SC Proceedings), or further order of the Commission; and
b) there be liberty to apply on 48 hours’ notice.
[5] Briefly stated, the Appellant’s case before Commissioner Schneider was that the adjournment of the hearing was necessary in order to afford the Commission the ‘benefit’ of the Supreme Court’s decision on both the legality of the Critical Infrastructure Directions and the ambit and reach of select provisions of the Public Health Act 2016 (WA) (PH Act) in determining whether or not the Respondent had a valid reason to terminate the Appellant’s employment.
[6] The Procedure Application proceeded to a hearing on 9 June 2022 and the Commissioner decided on 27 June 2022, that it was not appropriate in the circumstances, to stay the matter pending the outcome of the Jayasundera SC Proceedings (the Decision).
[7] Subsequent to issuing the Decision, Commissioner Schneider issued directions on 1 July 2022 (the Programming Directions) and a Notice of Listing that set down the merit hearing for the two test applications on 17 and 18 August 2022. The Directions set out the timeframe for the filing of submissions, witnesses statements, supporting documents and a statement of agreed facts.
[8] The Appellant has appealed the Decision, that being the decision to refuse the Appellant’s application for a stay order in the proceedings (Procedure Application), and now seeks a stay of the Programming Directions issued by Commissioner Schneider issued on 11 July 2022 (Stay Application). Whilst the application under s 606 was confined to a stay of the Programming Directions,[7] it would appear from the submissions, that what is also sought, is for the hearing dates to be vacated.
[9] In response to the Stay Application, the Respondent submitted it conceded the hearing of the Appellant’s unfair dismissal application was to be stayed pending the appeal of the Decision (and the Commission exercising its discretion). Mr Wade, Counsel for the Respondent, next submitted that all the Respondent sought in circumstances where the appeal must run its course, was that the Commission preserve the orders for the filing of evidence, including the statement of agreed facts. Counsel further conceded to the effect that it understood directions regarding the filing of submissions would be postponed pending the appeal. Counsel for the Appellant expressed that the Appellant remained opposed to filing evidential materials.
[10] Before traversing the submissions of the parties regarding the Stay Application and noting that neither led any evidence, the statutory framework and legal principles governing a stay application warrant consideration.
Statutory framework and legal principles
[11] The power to grant a stay pending the hearing and determination of an appeal lodged under s 604 is contained in s 606(1), which provides:
(1) 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 reviewis made or the FWC makes a further order.
[12] It is accepted that the principles applied to the determination of stay applications in this jurisdiction are those stated in the decision of Edghill v Kellow-Falkiner Motors Pty Ltd (Edghill),[8] 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 prospects 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.
[13] However, the application of those principles is necessarily subject to it being demonstrated at the outset by the applicant for a stay order, that there is an operative decision with ongoing effect that is capable of being stayed.[9] Further, as was suggested in Collinsville, s 606 does not provide power to stay proceedings (rather than a decision or order) pending the hearing and determination of an appeal.[10]
[14] In Collinsville, a case concerning an application brought under s 185 of the Act, the CFMEU applied for a stay of various interlocutory rulings made by the Senior Deputy President at first instance pending the hearing and determination of its appeal. Those interlocutory rulings included, amongst others, that the CFMEU was confined to making submissions about the application of the BOOT, and an adjournment to allow the CFMEU to lodge a notice of appeal and have a stay application heard, was refused.[11] The grounds of the appeal included that the Senior Deputy President erred in not adjourning the proceedings following the application by the CFMEU.[12]
[15] The Vice President, whilst not stating a final conclusion regarding the matter because he considered that the stay should be refused on the balance of convenience ground, stated:
However the application of those principles is necessarily subject to it being demonstrated at the outset by the applicant for a stay that there is an operative decision with ongoing or future effect capable of being stayed under s.606(1). It is not clear to me that this has been demonstrated here. For example, the CFMEU seeks as part of its stay application that the decision of the Senior Deputy President to refuse an adjournment be stayed. It is not apparent how a stay of such a decision could have any practical effect. The refusal or dismissal of an application does not usually give rise to anything capable of being stayed pending an appeal. It appears that, in substance, the CFMEU seeks a stay of the proceedings before the Senior Deputy President pending the hearing and determination of the appeal. Section 606(1) does not provide power to do this. The CFMEU seeks to surmount this difficulty by applying for terms and conditions attaching to the stay order that the proceedings before the Senior Deputy President be adjourned. I doubt that this solves the difficulty, for two reasons: firstly, there must in the first place be a properly founded stay order to which any term or condition under s.606(1) can attach; and secondly the adjournment requirement sought by the CFMEU is not in substance a term or condition of a stay order but an entirely separate order. As for the other procedural rulings made by the Senior Deputy President, it is likewise difficult to identify any practical effect of a stay upon those rulings, since the hearing before the Senior Deputy President has now been completed.[13] (citations omitted).
[16] In Creative Every Day Pty Ltd v Ms Yin Leung[14] (Every Day) the Deputy President observed that the decision against which the stay was sought had the effect of amending an unfair dismissal application so that the appellant was the respondent to the application. The Deputy President further observed that what the appellant actually sought was a stay of the directions currently in place for the hearing and determination of the unfair dismissal application, so that the appellant was not required to file material in relation to that application before the appeal was determined. The Deputy President expressed the view that the directions were not a decision capable of being stayed.[15]
Whether there is an order or decision to be stayed
[17] Before the principles in Edghill can be considered and applied, the starting point is to ascertain whether there is an operative decision with ongoing or future effect capable of being stayed under s 606(1) of the Act.
[18] Section 606(1) refers to the Commission hearing an appeal from, or conducting a review of, a ‘decision’. In written submissions, the Appellant did not address whether there was a decision capable of being stayed. However, at hearing both parties were informed of the issue, and Collinsville and Every Day were mentioned.
[19] Counsel for the Appellant responded to the issue by referring to s 598(1) of the Act, which provides that ‘[A] reference in this Part to a decision of the FWC includes any decision of the FWC however described…’. Counsel drew particular attention to the ‘Note’ following s 598(1) which provides examples of decisions that the Commission makes including – ‘how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals’. Counsel submitted that the Programming Directions relate to when and where a matter is to be dealt with. Counsel further submitted that there were no formal orders made in the Decision, but the orders that flow were those made on 11 July 2022. Counsel characterised those Programming Directions as effectively being Programming Orders.
[20] Counsel for the Appellant further clarified that there were probably two decisions made by Commissioner Schneider. One was that which was published on 27 June 2022 when the Commissioner refused the application to stay the unfair dismissal application. The second was when Commissioner Schneider issued the Programming Directions on 11 July 2022.
[21] Counsel for the Respondent first acknowledged that he had not turned his mind to the issue and assumed that the Appellant would not get it wrong (presumedly that there was a ‘decision’ for the purpose of s 606(1)) and second, observed that the Programming Directions flowed out of the Decision, which was a decision by Commissioner Schneider to refuse to stay the unfair dismissal application. Counsel continued that the refusing of the stay, may, if the Appellant was correct, ultimately prejudice the conduct of how the Appellant proposed to take the hearing forward.
[22] Counsel for the Respondent next submitted that to say the hearing must go ahead was to effectively deny the Appellant the right of appeal because the appeal would be heard after the Appellant’s unfair dismissal application is heard. Counsel continued that it was on that basis that the Respondent had made the concession, reluctantly, that the hearing of the unfair dismissal application would be adjourned pending the appeal of the Decision. This was the case albeit that it had, at all materials times, been open to the Appellant to style the appeal as one of relative urgency.
[23] Appreciative that both Counsel had little time to consider the issue and had not turned their mind to the matter before the hearing, I leave their submissions at this point finding it unnecessary to expand upon them further.
[24] The history of the matter is such that on 5 May 2022, the Appellant’s representative filed a Form F48, application for directions on procedure. At question 1.3 of the Form F48 the Appellant provided detail of the type of matter that he wanted to initiate. He did so in the following terms:
Orders to stay or adjourn this and other applications pending the outcome of related Supreme Court of Western Australia proceedings.
[25] Regarding the proposed directions sought, the Appellant states in the Form F48:
Pursuant to s 589 of the Fair Work Act 2009 (Cth), the following applications….
1.12. U2022/1299 – D Jayasundera v Electricity Networks Corporation (t/a Western Power);
are stayed pending determination of Supreme Court of Western Australia civil matter 1194/2022 – Jayasyndera v Andrew Robertson, or further order of the Commission.
[26] In the Decision, the Commissioner referred to the decision in Bowker v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The -Victorian Branch and Others[16] (Bowker) where the Deputy President expressed that it was clear enough to him that the power in s 589 of the Act extended to making a decision as to how, when and where a matter is to be dealt with until a judgement is delivered in another jurisdiction.[17] That approach appears to have been accepted in other decisions of this Commission.[18]
[27] In Bowker the Deputy President accepted that the power provided to the Commission by s 589 was sufficiently broad to encompass a decision that applications under s 789FC not be dealt with until a judgment was delivered by the Federal Court. Similarly, in French v The Good Guys Discount Warehouse (Australia) Pty Ltd T/A Good Guys O’Connor[19] the Deputy President considered that s 589 provided a member with authority to stay any part of a matter or application before that member.
[28] Based on the submissions, I accept that the Commissioner’s decision to decline the stay sought in respect of the Appellant’s unfair dismissal application (the Decision) may constitute a procedural decision made under s 589(1) of the Act given it determined ‘when’ the matter was to be dealt with to the extent that the Commissioner determined that the balance of consideration did not weigh in favour of staying the unfair dismissal application.
[29] The difficulty however is that I am not persuaded that Programming Directions constitute a ‘decision’ or for that matter an ‘order’ for the purpose of s 606(1) of the Act. Those Programming Directions are as the name suggests – ‘directions’. Further, they were made subsequent to the Decision having been handed down as is evident in paragraph [45] of the Decision, which informed the parties:
The parties will be contacted by Chambers in due course regarding the future programming of the Applications.
[30] At this juncture, it is timely to consider the submissions of the parties regarding whether a stay order in the terms sought should be granted.
Respondent’s submissions
[31] The Respondent couched its submissions on the premise that there is a decision which was potentially subject to a stay.
[32] The Respondent submitted that to say the hearing must go ahead was to effectively deny the Appellant the right of appeal because the appeal would be heard after the hearing of the unfair dismissal application, and that was the reason why, reluctantly, the Respondent had made the concession it did. The binding decision of Commissioner Schneider directed the filing of evidence and proposed a hearing date which, unless the appeal was styled as urgent, would result in the appeal being heard subsequent to the hearing dates for the Appellant’s unfair dismissal application.
[33] However, in respect to the Appellant’s contention that unless the stay was granted the appeal would become nugatory, the Respondent disagreed. In the Respondent’s view it was inevitable that the hearing of the unfair dismissal application was to be stayed pending the appeal, which it had conceded. According to the Respondent however, the only issue before the Commission was what to direct.
[34] The Respondent submitted that when the issue of test cases was first mooted in March 2022, the Respondent communicated that regardless of the form that any future hearing might take (a test case, or otherwise), the Respondent considered it imperative that the Appellant file his evidence without undue delay. The Respondent explained that the stated reason for this stance was that the Respondent wanted to ensure that the evidence was not in any way compromised by the passage of time.
[35] The Respondent made the observation that the Appellant had seemingly failed to appreciate that at a very early stage the Respondent gave notice it would not oppose the application to stay the hearing of the Appellant’s unfair dismissal application pending the hearing of the appeal, and that it would confine its opposition to the Appellant’s attempts to stay only those directions dealing with filing the evidence and a statement of agreed facts (the Evidence Directions).
[36] The Respondent observed that the Appellant had made no attempt to address the case authorities which provide very clear guidance on whether or not it would be appropriate for the Commission to stay the implementation of the Programming Directions pending the hearing of the Appeal. The Respondent next submitted that the Appellants had, for the most part, simply repeated the substance of the submissions put before the Commissioner at first instance, and the Commissioner had correctly rejected those submissions.
[37] Addressing that the Appellant’s persistence in seeking a stay of the Evidence Directions, the Respondent argued that a stay of the Evidence Directions was misconceived essentially because:
a) the implementation of the Evidence Directions was something entirely separate and distinct from the issue of the stay of the actual hearing. The implementation of the Evidence Directions would not in any material respect impact upon the purpose behind the original stay application, which was now the subject matter of the Appeal;
b) the Appellant’s notice of appeal did not identify or assert any independent error in connection with the Evidence Directions; and
c) in any event – and in respect of the Evidence Directions – the Appellant did not even come close to satisfying the test for a stay of the Evidence Directions pending the hearing of the Appeal.
[38] The Respondent observed that the Appellant had made no substantive submissions in respect of the test for a stay order.
[39] Regarding the Evidence Directions, the Respondent advanced the following propositions, which it considered were common ground or uncontroversial:
a) the Appellant’s unfair dismissal application was initiated almost six months ago;
b) regardless of the outcome of the initial stay (and now also the appeal), the Appellant intended pursuing his respective unfair dismissal application. Put differently, at some point the Appellant would be filing evidence in support of the allegation of unfairness;
c) although the Unfair Dismissal Applications were uniformly drafted, two of the applicants, a ‘Jenkins’ and the Appellant, intended to argue unfairness arising out of as yet, unspecified ‘special circumstances’;
d) the parties agreed and the consent position was subsequently endorsed by Commissioner Schneider, that the dismissal of the applicants would proceed by way of two test cases (the Appellant being one), with the parties essentially agreeing that, subject to their right of appeal, they would abide the outcome of the test cases;
e) the central legal issues before the Supreme Court were not matters which would in any material way alter the nature of the Appellant’s evidence before the Commission;
f) the Appellant had not to date, including in his latest submissions, submitted that he would be in any way prejudiced (or even potentially prejudiced) by being required to file evidence in compliance with the Evidence Directions (which the Respondent accepts would need to be amended to reflect different dates).
[40] With regard to the grant of a stay order, the Respondent summarised that before a stay order could be granted the Commission must be satisfied that an arguable case exists with some prospect of success and that the balance of convenience favoured the granting of the stay.
[41] The Respondent observed that the Decision was both procedural in nature and discretionary and for that reason alone, the Appellant’s task on appeal was made infinitely more difficult. The Respondent continued that there were in fact no relevant authorities of the Full Bench which provided support for a successful appeal in these circumstances and the reality was that the Decision, at the level of principle, was completely in step with a long line of judicial authority and there was manifestly no appealable error.
[42] The Respondent continued that even if the Appellant could responsibly submit that there was a relevant and material error warranting the grant of the appeal (with the resultant stay of the hearing) – it was highly unlikely that the Full Bench would at the same time issue orders invalidating the Evidence Directions. The Respondent pressed that the Full Bench would be acutely alive to the inherent risks and the significant potential prejudice associated with the indefinite deferral of the filing of evidence.
[43] In respect to the questions surrounding the stay of the Evidence Directions, the Respondent submitted that there was no doubt that the balance of convenience did not weigh in favour of an order staying the Evidence Directions. While there were potentially significant adverse consequences associated with the stay of the Evidence Directions, a refusal not to stay the Evidence Directions carried with it for the Appellant absolutely no disadvantage of prejudice.
[44] Responding to the Appellant’s proposition that the degradation of evidence and elimination of potential prejudice associated with a delay in filing evidence, could be ameliorated by proofing of witnesses, the Respondent argued:
a) it could hardly be expected of the Respondent to identify and proof witnesses on the strength of speculation as to the nature of the evidence that the Appellant will introduce; and
b) that the Appellant intended to advance ‘special circumstances’ in asserting that his dismissal was unfair and yet the special circumstances had not been articulated.
Appellant’s submissions
[45] In short, the Appellant’s position is that at all material times he complied with the terms of the Critical Infrastructure Directions because while not yet vaccinated, presumedly against COVID-19, he did not attend the workplace. The Appellant was then dismissed for failing to comply with the Critical Infrastructure Directions and the direction of the Respondent.
[46] The Appellant noted that on 5 July 2022, following a request from Commissioner Schneider in a directions conference held on 30 June 2022, the parties provided the Commissioner with a heads of agreement document (HOA). The HOA details the parties’ agreement in relation to the running of two test cases in the Commission to determine the common issues relating to the 16 applications for unfair dismissal, lodged by the former employees of the Respondent. The purpose of the test cases is to save the parties and Commission the time and resources of hearing 16 individual claims where there are common issues across all the Unfair Dismissal Applications.
[47] The Appellant submitted that on 7 July 2022, without hearing further from the parties, Commissioner Schneider issued the Programming Directions and listed the test cases for hearing on 17 and 18 August 2022. Paragraph 1 of the Programming Directions require the Applicant to file and serve submissions and evidence by 4.00pm on Friday, 22 July 2022.
[48] The Appellant advised that between 13 and 15 July 2022, Justice Jeremy Allanson heard trials in the Supreme Court of Western Australia in the three (3) following applications for judicial review:
a) SCWA CIV 2286/2021 – Falconer v Chief Health Officer & Anor;
b) SCWA CIV 2308/2021 – Falconer v Commissioner of Police; and
c) SCWA CIV 1081/2022 – Finlay v Commissioner of Police,
(together the Falconer & Finlay Proceedings).
[49] Counsel for the Appellant submitted that the legal firm he worked for acted for the Appellant and the 15 other former employees of the Respondent, and the applicants in the Falconer & Finlay Proceedings. Counsel continued that he had day-to-day conduct of all these matters, subject to the supervision of Mr Mark Hemery (a partner of Hotchkin Hanly – the legal firm). Counsel advised that his capacity to prepare evidence and submissions in this matter was a factor he drew expressly to the attention of Commissioner Schneider at the directions conference heard on 30 June 2022. Counsel noted that he had expressly stated to the Commissioner that he would require longer than a week to prepare evidence and submissions in circumstances where he was unavailable to do so until 18 July 2022.
[50] According to the Appellant, if an order to stay the Programming Directions is not issued, the appeal would be rendered nugatory - the Appellant will be in default of the Programming Directions, which required compliance by Friday, 22 July 2022, and Commissioner Schneider may dismiss the application where the Appellant has failed to comply with the Programming Directions.
[51] Regarding the Respondent’s opposition to the stay of the proceeding, the Appellant observed that the Respondent had previously submitted that such a stay would potentially prejudice it, in circumstances where the effluxion of time may lead to a degradation of the evidence. In the Appellant’s submission, the Respondent could avoid any potential degradation of its own evidence by taking proofs of its own witnesses now. It was the Appellant’s view that he had provided sufficient particulars of his case in the amended unfair dismissal application dated 10 February 2022, to allow the Respondent to take evidence from its employees.
Consideration
[52] Having considered the submissions of the parties, the matter comes back to the question of whether there is a ‘decision’ or ‘order’ capable of being ‘stayed’. It appears that, in substance, the Appellant seeks a stay of the Programming Directions pending the hearing and determination of the appeal. Counsel for the Appellant confirmed that this was the case in hearing, submitting that what was being sought was a stay of the Programming Directions. However, the appeal lodged does not appear to challenge the Programming Directions and to the extent that it does, it is not evident that the Programming Directions constitute a decision or order of this Commission.
[53] The Programming Directions are something entirely separate and distinct from the issue of the Decision. This is not withstanding the suggestion that the binding decision of the Commissioner directed the filing of evidence and proposed a hearing date – which in my view is not correct.
[54] The implementation of the Programming Directions would not in any material respect impact upon the purpose behind the stay application, which is now the subject matter of the appeal. The Appellant’s notice of appeal did not identify or assert any independent error in connection with the Programming Directions.
[55] In my view it follows that s 606(1) does not provide the Commission with power to grant a stay of the Programming Directions under s 606(1), a proposition that has similarly been canvassed in Collinsville and Every Day.
[56] If I am wrong about the operation of s 606(1) and my conclusion in respect of the Programming Directions, it would nevertheless be the case that I would decline to grant the order sought.
[57] Whether the Commission grants a stay order depends on an appellant establishing to the satisfaction of the Commission, that there is an arguable case with some reasonable prospect of success in respect of the question of leave to appeal, and the substantive merits of the appeal. Second, the Commission must be satisfied that convenience weighs in favour of the order subject to the appeal being stayed.
[58] Turning to that latter point, from the materials filed it is apparent that the Appellant contends in respect of his unfair dismissal application that contrary to the assertion that he failed to comply with the Critical Infrastructure Direction, by absenting himself from the workplace, he was compliant. The Appellant further claims that he was then dismissed for failing to comply with the Critical Infrastructure Direction and the direction of the Respondent. In his submissions the Appellant speaks of ss 162 and 202 of the PH Act and the construction and effect of those sections, and the Falconer & Finlay Proceedings.
[59] Regarding the filing of evidence, the Appellant has not persuaded me that he would in any way be prejudiced (or even potentially prejudiced) by being required to file evidence in compliance with the Programming Directions (which of course would need to be amended to reflect different dates in light of the interim order issued and the date by which the Appellant was due to have filed materials having passed). In contrast, a delay in filing the evidence may result in the degradation of evidence and I consider the proposition that the Respondent effectively box at shadows, by proofing witnesses unaware of the evidential case against it, far from acceptable or for that matter on point.
[60] The central legal issues before the Supreme Court are arguably not matters which would in any material way alter the nature of the Appellant’s evidence before the Commission. Essentially those factors referred to in the preceding paragraph are legal issues. Furthermore, in the event that a decision was handed down by the Supreme Court in the Falconer & Finlay Proceedings prior to the disposition of the appeal, the Appellant may seek to file supplementary submissions in relation to his unfair dismissal application. Therefore, I do not consider the Appellant has demonstrated any prejudice in this respect. It is, after all, not an unusual for parties to encounter the handing down of a relevant judgment or the publication of a relevant decision during the course of proceedings, which from a procedural fairness aspect necessitates the opportunity to respond to the same.
[61] For the reasons provided, convenience does not weigh in favour of the Programming Directions being stayed.
[62] The required assessment of an appeal’s prospects of success for the purposes of determining a stay application is necessarily of a preliminary nature only, since the Commission will not have had the benefit of hearing an appellant’s full argument and may not have had the opportunity to comprehensively peruse the case materials.[20] In light of my conclusions regarding the operation of s 060(1) and the balance of convenience, it has proved unnecessary to traverse this limb.
Conclusion
[63] Having regard to the circumstances of this matter, first, I do not consider that I have the power under s 606(1) to grant a stay of the Programming Directions. Second, if I am wrong on that point, the balance of convenience does not favour the grant of a stay of the Programming Directions in circumstances where no prejudice has been identified to the Appellant that would occur if a stay order was not granted. Having reached these conclusions, it is not necessary for me to express a view as to whether the appeal is arguable with reasonable prospects of success. The stay application is dismissed.
[64] Insofar as it is relevant, it is evident that the Respondent appears open to adjourning the hearing of the unfair dismissal application until the disposition of the appeal. Further, given the date when the Appellant was due to file materials has passed, and also noting that parties consented to the issuance of an interim order[21] staying the Programming Directions until such time as this application under s 606 was addressed, it is open to the Commissioner to issue amended directions.
DEPUTY PRESIDENT
Appearances:
Mr L Swanson on behalf of the Appellant.
Mr R Wade on behalf of the Respondent
Hearing details:
2022.
Perth (video hearing)
July, 26.[1] Edward Cappeau, Dinith Jayasundera & Ors v Electricity Networks Corporation T/A Western Power[2022] FWC 1611 [1].
[2] U2022/1288, U2022/1289, U2022/1290, U2022/1291, U2022/1292, U2022/1293, U2022/1294, U2022/1295, U2022/1296, U2022/1297, U2022/1298, U2022/1299, U2022/1300, U2022/1301, U2022/1302, and U2022/1365.
[3] U2022/1299.
[4] U2022/1300.
[5] Heads of Agreement.
[6] Critical Infrastructure Worker (Restrictions on Access) Directions (WA).
[7] Appellant’s Form F7 – Notice of appeal.
[8] Prints S2023 & S2024 (Edgehill).
[9] CFMEU v Collinsville Coal Operations Pty Limited [2014] FWC 4276 [11] (Collinsville).
[10] Ibid [11].
[11] Ibid [3].
[12] Ibid [6].
[13] Ibid [11].
[14] Creative Every Day Pty Ltd v Ms Yin Leung [2019] FWC 4949.
[15] Ibid [16].
[16] Bowker v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The -Victorian Branch and Others[2014] FWC 7326.
[17] Bowker v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The -Victorian Branch and Others[2014] FWC 7326 [4].
[18] See also Construction Forestry, Mining and Energy Union v BHP Coal Pty Ltd[2014] FWC 7282 [42]; French v The Good Guys Discount Warehouse (Australia) Pty Ltd T/A Good Guys O’Connor [2017] FWC 3545.
[19] French v The Good Guys Discount Warehouse (Australia) Pty Ltd T/A Good Guys O’Connor [2017] FWC 3545 [22].
[20] Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 [9].
[21] PR743973
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