Grant Johnson Pty Ltd ATF the Grant Johnson Trust T/A Platinum Roof Coating v Mr Troy Petrie

[2016] FWC 9190

[2016] FWC 9190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Grant Johnson Pty Ltd ATF The Grant Johnson Trust T/A Platinum Roof Coating
v
Mr Troy Petrie
(C2016/7426)

VICE PRESIDENT CATANZARITI SYDNEY, 23 DECEMBER 2016

Appeal against decision [2016] FWC 6407 of Deputy President Binet at Perth on 25 November 2016 in matter number U2016/7864. Stay refused.

[1] Mr Troy Petrie was employed by Grant Johnson Pty Ltd (Appellant) until 3 June 2016. On 22 June 2016 Mr Petrie lodged an unfair dismissal application. In response to Mr Petrie’s application, the Appellant raised three jurisdictional objections.

[2] Deputy President Binet dealt with the jurisdictional objections raised by the Appellant and, on 25 November 2016, issued a Decision (Decision) which found that the jurisdictional objections did not have any merit. As a result of this Decision, the Fair Work Commission (Commission) has jurisdiction to deal with Mr Petrie’s application, and Deputy President Binet ordered (Order) that the matter will be allocated for arbitration. 1

[3] On 16 December 2016, the Appellant lodged a Notice of Appeal appealing the Decision. In the Notice of Appeal, the Appellant applied for a Stay of the Decision and Order. On 21 December 2016, I heard the Stay application.

[4] Mr A. Prentice, a solicitor, represented the Appellant while Mr Petrie was self-represented. I granted Mr Prentice permission to appear in relation to the application for the Stay only. Whether Mr Prentice or any other representative is granted permission to appear in relation to permission to appeal and the appeal is a matter for the Full Bench to determine at a later date.

[5] At the end of the hearing, I informed the parties that I have decided to not issue a Stay of the Decision and Order. My reasons for reaching this decision are provided below.

Applicable Principles and General Approach

[6] There was no dispute between the parties as to the principles applicable to the determination of the stay application. They are as stated in Kellow-Falkiner Motors Pty Ltd v Edghill, 2in which the Full Bench approved the following statement of principle:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect 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.

[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.”

Consideration – Balance of Convenience

Submissions

[7] The Appellant asserted that if a Stay is not issued, the unfair dismissal application will proceed for programming. The Appellant submitted that this would require additional preparation including the filing of documents which, the Appellant posited, would be wasted if the Appellant’s appeal is upheld.

[8] The Appellant also asserted that because a Stay Order, if issued, would make no finding as to the merits of Mr Petrie’s unfair dismissal application, Mr Petrie would not be deprived of anything. On this basis, the Appellant asserted that the balance of convenience favours the granting of a Stay.

[9] Mr Petrie asserted that he would be deprived if a Stay Order was issued. Mr Petrie pointed out that he has been waiting a significant period of time to have his matter programmed at the Commission. Mr Petrie asserted that a Stay of the Decision and Order would unfairly prolong the matter, forcing him to continue to wait for his application to be programmed and dealt with by Commission.

Consideration

[10] I acknowledge that if a Stay is not issued and the appeal is eventually upheld, the Appellant’s preparation for the programming of the unfair dismissal application will have been, on one view, unnecessary. On the other hand, I acknowledge that Mr Petrie has been waiting a significant amount of time for the programming of his application.

[11] In considering whether the balance of convenience favours the granting of a Stay I have balanced these competing factors. In my view, the preparation that the Appellant would have to make for the programming of the unfair dismissal is not of great significance. Unfair dismissal applications such as the one lodged by Mr Petrie do not require an extensive input of legal resources. As such, while the Appellant asserts that it would be deprived if a Stay is not granted, I am not satisfied that the disadvantage that would be inflicted upon the Appellant by the refusal to grant a Stay would be of great significance.

[12] The same, however, cannot be said of the deprivation which Mr Petrie would incur, in my view, if a Stay was granted. Australian Courts and Tribunals are more readily acknowledging the growing importance of active case management to ensure the quick resolution of disputes. 3 In my view, the legal maxim that ‘justice delayed is justice denied’ underpins this development. Mr Petrie has been waiting to have his application resolved since lodging it in 3 June 2016. A Stay order would cause further delay and deny, at least until the appeal is heard, the programming of Mr Petrie’s application. Considering that Deputy President Binet found that the Commission has jurisdiction to deal with Mr Petrie’s application, this outcome would be, in my view, significantly unfair to Mr Petrie. It would be unfair to withhold from Mr Petrie the programming of his application in circumstances where a Commission member has found that the Commission has the requisite jurisdiction to program the application. I do not believe that this unfairness is outweighed by the Appellant’s disagreement with the Deputy President’s Decision or the limited preparation that the Appellant would have to make if Mr Petrie’s application is programmed.

[13] For the reasons above, the balance of convenience does not, in my view, favour the granting of a stay.

[14] A Stay cannot be granted unless the balance of convenience so favours. The balance of convenience does not favour the granting of a stay in this case. As such, a Stay cannot be granted. As a consequence, it is unnecessary for me to consider the arguable case element.

Conclusion

[15] The Appellant’s application for a Stay order is refused.

[16] A Stay order is not issued.

VICE PRESIDENT

Hearing details:

21 December 2016

By video link

 1   PR585145.

 2   [2000] AIRC 1207.

 3   Aon Risk Services v Australian National University (2009) 239 CLR 175.

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<Price code {A}, PR588898>