FDGH Pty Ltd T/A Caltex Fitzroy North v C Siriwardhana

[2013] FWC 6481

[2013] FWC 6481

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

FDGH Pty Ltd T/A Caltex Fitzroy North
v
C Siriwardhana
(C2013/5599)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 4 SEPTEMBER 2013

Appeal against decision [[2013] FWC 5609] of Commissioner Roe at Melbourne on 12 August 2013 in matter number U2013/397 - Stay application.

[1] Pursuant to s.604 of the Fair Work Act 2009 (the Act), FDGH Pty Ltd T/A Caltex Fitzroy North (the Appellant) has appealed a decision 1 and order2 of Commissioner Roe, in which he found that the termination of the employment of Ms C Siriwardhna (the Respondent) by the appellant was harsh, unjust and unreasonable and ordered that compensation be paid by the appellant to the respondent. The appellant sought an order staying the order of the Commissioner pending the hearing and determination of the appeal.

[2] This decision deals with the application for a stay order.

[3] A party may only appeal a decision and/or order made by a single member of the Fair Work Commission (the Commission) with the permission of the Commission. 3 Unlike appeals against decisions made under other provisions of the Act, permission to appeal a decision related to an unfair dismissal remedy4 will only be granted if the Commission considers it to be in the public interest to do so.5 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 fact.6 More generally, other errors said to have been made by a first instance decision-maker must be of a kind identified in House v King.7

[4] In deciding whether to exercise 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 These principles must be applied against the statutory constraints noted above applicable to appeals against a decision and/or order in respect to an unfair dismissal application.

[5] In the stay hearing, the appellant initially advanced the proposition that the stay order should be made on the grounds that its financial circumstances prevented payment of the compensation ordered and that the appellant considered the decision and order to be unfair. Neither of these grounds addresses error, significant error of fact or the public interest. When pressed, the appellant submitted that significant error was reflected in the findings of fact of the Commissioner that the appellant had not consulted in accordance with the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Award) obligations about the redundancy and that the decision reflected error in that the compensation ordered exceeded the period of service by the respondent with the appellant, on the basis that the employment with the appellant was a new and separate employment from the respondent’s employment with another employer from whom the appellant purchased the business. The appellant contended that it put submissions and evidence before the Commissioner which supported each proposition and the Commissioner had significantly erred having regard to the evidence.

[6] The respondent contested the propositions of the appellant that the Commissioner erred in either respect or there that was evidence before the Commissioner supporting the position advanced by the appellant.

[7] I have considered the evidence - in the form of statements filed and examination in transcript - in relation to each area where the appellant suggested error of the part of the Commissioner. That material does not disclose any evidence of consultation with the respondent once the appellant had made a definite decision to terminate the employment of the respondent. The evidence in relation to consultation suggests at best, generalised advice to staff soon after taking over the business that Ms Hanna and her husband intended to work more hours within the business. The evidence 9 fully supports the conclusion of Commissioner Roe that the appellant failed to consult the respondent about potential redundancy in a manner which meets the requirement of the Award and in the termination meeting, Ms Hanna was simply advising the respondent of her decision to terminate her employment and the reason for that decision.

[8] In respect to the second ground of error raised by the appellant, the material before Commissioner Roe discloses that the appellant conceded that the respondent was employed for a period of two years and eight months as a console operator on the premises and the appellant continued to employ the respondent following the change in business ownership. 10

[9] I am not satisfied that there is an arguable case that Commissioner Roe erred (at all, let alone significantly) in respect to his conclusions as to the appellant’s failure to consult and the transfer of business. No other basis of significant error of fact or other error was raised by the appellant.

[10] Further, no arguable case was advanced by the respondent as to why it was in the public interest to grant permission to appeal.

[11] Given my conclusions as to significant error and the public interest, it in unnecessary to consider the balance of convenience.

[12] The application for a stay order is refused.

SENIOR DEPUTY PRESIDENT

Appearances:

D Hanna, Appellant.

D De Silva, on behalf of the Respondent.

Hearing details:

2013.

Melbourne:

28 August.

 1   [2013] FWC 5609.

 2   PR540810.

 3 Section 604(1) of the Fair Work Act 2009.

 4   Part 3-2 of the Fair Work Act 2009 -Unfair dismissal.

 5 Section 400(1) of the Fair Work Act 2009.

 6 Section 400(2) of the Fair Work Act 2009.

 7 (1936) 55 CLR 488.

 8   Kellow-Falkiner Motors Pty Ltd v Edghill, Full Bench AIRC, 17 March 2000 (Print S4216).

 9   Transcript, at para 646-703.

 10   Transcript, at para 14-33.

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