GM Holden Ltd v Symonds

[2013] FWC 332

[2013] FWC 332
[Note: a correction has been issued to this document - see 2013FWC332_PR533699 signed 31 January 2013]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

GM Holden Ltd
v
Rodney Symonds
(C2013/2545)

DEPUTY PRESIDENT SMITH MELBOURNE, 16 JANUARY 2013

Appeal against decision [[2012] FWA 10454] of Commissioner Steel at Adelaide on 18 December 2012 in matter number U2012/4640. Stay Proceedings

[1] On 18 January 2013, I announced my decision in this matter in transcript. I now publish an edited decision together with some additional reasons to ensure clarity.

[2] This is an application by GM Holden Ltd to stay a decision of Commissioner Steel. Section 606(1) of the Fair Work Act 2009 provides that:

“If, under section 604 and 605, FWC hears an appeal from, or conducts a review of, a decision, FWC may (except as provided in subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that FWC considers appropriate, until a decision in relation to the appeal or review is made or FWC makes a further order.”

[3] Before a stay order is granted the Commission is required to be satisfied that an arguable case exists and that the balance of convenience favours the granting of a stay. The conventional test for granting a stay order was considered by Vice President Ross (as he then was) in Kellow-Faulkner Motors Pty Ltd v Edge Hill. 1 That approach was subsequently confirmed by a Full Bench.2

[4] Bearing those tests in mind, Mr Hardie argues that there is no prospect of success for either leave to appeal or the substantive merits of the appeal. He relied extensively upon his written submission and I have taken them into account.

[5] In particular, and in relation to the balance of convenience, Mr Hardie argued that GM Holden Ltd did not implement the order of Commissioner Steel and accordingly should not be rewarded. I find this to be a troubling aspect of the current matter.

[6] Mr Hardie referred to concurrent workers compensation issues between the parties. GM Holden Ltd relied largely on three key points: firstly, an error of fact in relation to the reliance by the Commissioner of the medical condition where it was said that there was no medical clearance for Mr Symonds. This, it is said, was in error on a reading of the materials and the evidence presented.

[7] The second matter raised by GM Holden Ltd is the reasons of the Commissioner where he conflated the approach to valid reason. Finally, it is argued by GM Holden Ltd that there is material upon which the Commissioner relied, which was not brought to the notice of the parties and upon which they could not comment.

[8] I find there is an arguable case and that there is some reasonable prospect of success in relation to both leave to appeal and the substantive merit of the appeal.

[9] I now turn to the balance of convenience. In dealing with this matter, I have considered what has been put to me by GM Holden Ltd in relation to any monies due; the payment of wages to Mr Symonds and its view that Mr Symonds not return to the workplace.

[10] The balance of convenience favours staying the decision given the costs associated with the decision and the issues impacting upon Mr Symonds’s return to the workplace.

[11] GM Holden Ltd has undertaken to bear the risk of paying Mr Symonds his salary and by placing the amount of remuneration lost by Mr Symonds resulting from the dismissal, less appropriate deductions, into an interest bearing account. I think it is appropriate that such risk lie with GM Holden Ltd in this matter. I accept this undertaking by GM Holden Ltd.

[12] I will issue an Order giving effect to this decision shortly.

DEPUTY PRESIDENT

Appearances:

T. Hardie for Rodney Symonds

P. Wheelanhan of counsel and F. Anderson for GM Holden Ltd

Hearing details:

2012.

Melbourne and Adelaide (via Video Link)

January, 18

 1   Print S2639

 2   Print S4216

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