DECISION

Fair Work Act 2009
s.604—Appeal of decision

Dr Allan Clarke T/A CJ Orthopaedics Pty Ltd
v
Glenyce Ham
(C2017/1481)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 24 MARCH 2017

Application for stay of decision [2017] FWC 1335 of Commissioner Spencer at Brisbane on 7 March 2017 in matter number U2016/11771.

[1] On 20 March 2017, CJ Orthapaedics Pty Ltd filed an application for stay of an unfair dismissal decision. The application was not accompanied by Form F7, the form used to initiate an appeal of a decision.

[2] On 23 March 2017, my Chambers wrote to the parties as follows:

‘Deputy President Hamilton has asked me to write to you both in relation to the above matter.

The Deputy President notes that the application for a stay order in this matter is not accompanied by an application for an appeal of the decision issued in matter U2016/1171 pursuant to s.604 of the Fair Work Act 2009. Section 606 of the Act provides that the Commission may order that a decision or order be stayed where the FWC hears an appeal from a decision. Both sections of the Act are attached.

The Deputy President directs the Applicant to advise Chambers in writing by 12 noon today why the application for a stay should not be dismissed because of a lack of an appeal being instituted pursuant to s.604 of the Act.’

[3] Later that day, the applicant withdrew the application for a stay order:

‘We have considered the Deputy President’s views and direction.

In the circumstances, my client withdraws the application for a stay order and requests the hearing listed for this afternoon be vacated.

I thank the Deputy President and apologise for any inconvenience.

Please contact me if you have any queries or would like to discuss.’

[4] Accordingly, the Commission closed its file in this matter.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Dr Allan Clarke, trading as CJ Orthopaedics Pty Ltd, sought a stay of a decision made by Commissioner Spencer of the Fair Work Commission. The decision had been made in relation to a dispute with his former employee, Glenyce Ham, regarding her unfair dismissal. The application was heard by Deputy President Finn in the Federal Circuit Court at Brisbane.

The central legal issue before the court was whether the application for a stay of the Commission's decision was appropriate. Dr Clarke argued that the decision was flawed and that it was necessary to stay the decision to prevent irreparable harm. The primary focus was on the urgency and likelihood of success of the appeal, as well as the balance of convenience. Dr Clarke also argued that the decision had been made in error and without proper consideration of the evidence presented.

Deputy President Finn considered the criteria for granting a stay, including the prospects of success on the merits, the balance of convenience, and whether a stay would cause substantial injustice to the other party. The Deputy President found that while the application was urgent and the appeal had some prospects of success, the balance of convenience favoured Glenyce Ham. Furthermore, the court held that there was a significant risk of substantial injustice to Ham if a stay were granted. Consequently, the application for a stay was dismissed.

The final orders of the court were that the application for a stay of the decision made by Commissioner Spencer at Brisbane on 7 March 2017 in matter number U2016/11771 be dismissed. The court did not grant a stay and found that the appeal would proceed in the Federal Circuit Court.

Dr Allan Clarke T/A CJ Orthopaedics Pty Ltd v Glenyce Ham

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established