Hair & Co Pty Ltd v Miss Eden McGinty
[2023] FWC 1774
•21 JULY 2023
| [2023] FWC 1774 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Hair & Co Pty Ltd
v
Miss Eden McGinty
(C2023/3478)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 21 JULY 2023 |
Appeal against decision [2023] FWC 1387 of Deputy President Boyce at Sydney on 15 June 2023 in matter number U2023/1149 – application for a stay order refused.
This decision concerns an application by Hair & Co Pty Ltd for a stay order pursuant to s 606 of the Fair Work Act 2009 (Cth) (Act). The appeal concerns an order[1] issued by Deputy President Boyce on 15 June 2023 for the payment of compensation as a remedy for the unfair dismissal of the respondent (compensation decision).[2] The appellant seeks a stay of the whole of the order pending determination of the appeal.
At the hearing of the stay application on 21 July 2023, the appellant addressed allegations of alleged error concerning the Deputy President’s 29 May 2023 liability decision which considered (a) whether the appellant had complied with the small business fair dismissal code (SBFDC), and (b) whether the respondent was unfairly dismissed (liability decision).[3] The appellant has been provided until 4:00pm Monday 24 July 2023 to make an application for leave to amend its Form F7 Notice of Appeal to refer to the liability decision.
The stay is opposed by the respondent.
For the reasons that follow, I have determined that the application for a stay is refused.
Relevant principles
Section 606 of the Act gives the Commission the discretionary power to stay the operation of the whole or part of a decision the subject of an appeal. Section 606(1) of the Act provides as follows:
“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 review is made or the FWC makes a further order.”
In Edghill v Kellow-Falkiner Motors Pty Ltd,[4] Vice President Ross (as he then was) provided the following formulation for determining stay applications:[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.”
Accordingly, both “elements” are necessary conditions to the grant of a stay.
Context
The respondent filed a Form F2 application seeking a remedy for an unfair dismissal on 13 February 2023. The appellant filed a Form F3 response to the application on 8 March 2023,[6] objecting to the application on the basis that the dismissal was consistent with SBFDC. The Form F3 attached a completed SBFDC checklist.
The Deputy President issued directions on 30 March 2023 for the purpose of resolving the substantive unfair dismissal claim. The appellant failed to comply with the direction to file and serve materials on 18 April 2023. The Deputy President’s Chambers sent an email to the appellant on 19 April 2023 revising the deadline for compliance and advising that a failure to comply “may result in the [appellant] being unable to rely on any submissions or evidence at the Hearing.” The appellant did not comply. The respondent filed her materials on 2 May 2023.
The matter proceeded to hearing on 17 May 2023. The appellant was represented by its Director, Mr Jalal El Hallak, and the respondent was represented by her mother.
The liability decision was handed down on 29 May 2023. The Deputy President found that the decision was harsh, unjust and unreasonable,[7] and concluded that reinstatement was not appropriate.[8] The Deputy President deferred the question of whether compensation was an appropriate remedy, considering that the parties did not have an opportunity to provide evidence in relation to the issue. The Deputy President ordered that the SBFDC objection be dismissed.[9]
Directions for the resolution of the compensation dispute were issued on 29 May 2023.
The appellant sought information on how to appeal the liability decision on 30 May 2023. The Commission provided the relevant advice on 31 May 2023.
The respondent filed her materials in relation to the issue of compensation on 9 June 2023. The appellant failed to file any materials in accordance with the directions. The Deputy President’s Chambers emailed the appellant on 13 June 2023 revising the deadline for compliance and advising that a failure to comply would mean “a decision will be made solely based on the filed material.” The appellant did not file any materials in relation to the issue of compensation.
The Deputy President handed down the compensation decision on 15 June 2023. The Deputy President ordered as follows:
A. The Respondent is pay to the Applicant the gross sum of $14,678.04 (subject to applicable taxation as required by law) by way of electronic funds transfer into the Applicant’s nominated bank account.
B. The Respondent is to pay into the Applicant’s nominated superannuation fund the sum of $1,541.19 (i.e. 10.5 percent of $14,678.04).
C. Orders A. and B. above must be complied with by no later than 4.00pm Thursday, 29 June 2023.
Arguable case with some reasonable prospect of success
In determining a stay application, the Commission must assess the strength of the appellant’s case without the benefit of hearing the appellant’s full argument and usually without the opportunity to undertake a full analysis of the case materials. Accordingly, the consideration of whether the appellant raises an arguable case with some reasonable prospect of success is to be undertaken against that context. Nonetheless, it is the appellant’s case itself that must be considered, not the case materials.
The grounds of appeal are as follows:
1. The decision maker has confirmed he has not taken into account evidence that was submitted during the initial response to the application.
2. The decision maker has mistaken the facts of this case and has relied upon information only given t them by the applicant
3. failing to take into consideration material evidence that was sent but may not have been received at the time.
4. There are errors of facts in this case which has not been taken into consideration
(without alteration)
In relation to appeal ground one, the appellant was invited to identify the evidence that the Deputy President had not taken into account. The appellant submitted that there was no “new” evidence. The appellant referred to witness statements, and customers that the respondent had purportedly solicited to perform hairdressing services for at her own home, including text messages from those customers. The appellant queried why the Deputy President had not taken into account any of the materials it had originally submitted.
The appellant rejected the proposition that a review of the Commission’s file disclosed that it had not filed any materials in accordance with the Deputy President’s directions. Notwithstanding this, the appellant accepted that the Deputy President had requested documentation from it on multiple occasions but submitted that Mr Hallak may not have sent it.
Having regard to the appeal book filed by the appellant on 27 June 2023, the appellant confirmed that:
(a) the Form F3 response attaching the SBFDC checklist was filed for the purposes of the proceedings at first instance;[10] and
(b) it had filed no supplementary material with the Commission beyond the Form F3 response attaching the SBFDC checklist.
A review of the Commission’s file reveals that this material was received by the Commission on 3 March 2023.
The appellant contends that the Deputy President did not refer to the Form F3 or the SBFDC checklist at all. However, the Deputy President referred to and considered both of these documents in the liability decision.[11] When referred to paragraph [6] of the liability decision, the appellant conceded that the Deputy President took these documents into account, although it appears that the appellant was otherwise unaware of, or had not read, the compensation decision.
The Deputy President’s position was that the matters raised in the Form F3 were not substantiated by any evidence from the appellant.[12] Similarly, the Deputy President considered that the SBFDC checklist, which contains answers to a series of yes and no questions, was the only material before the Commission addressing the appellant’s compliance with the SBFDC.[13] To the extent that the appellant contends that the Deputy President failed to take this material into account, such a contention is not reasonably arguable. The matters raised in the Form F3 do not constitute evidence. In any event, this does not appear to be the focus of the appellant’s grounds of review.
The appeal book also contains three witness statements which detail an alleged incident at the appellant’s premises on 23 December 2023.[14] The appellant conceded that it was possible that the witness statements were not filed with the Commission, and that may have been a mistake on the appellant’s part. A review of the Commission’s file reveals that these statements were not received by the Commission during the proceedings at first instance. When this was raised with the appellant, the appellant accepted that the materials may not have been before the Deputy President. However, the appellant’s position is that the witness statements existed whether they were filed in the Commission or not.
The appellant also relies upon the three witness statements in the appeal book as constituting evidence that the Deputy President failed to take into account for the purposes of appeal ground three. However, the appellant agreed that documents that had not been filed with the Commission could not be taken into account. While the appellant referred to a telephone call with the Deputy President’s Chambers where it sought more time to arrange its witnesses, there is no record of this telephone call on the Commission’s file.
In relation to appeal grounds two and four, the appellant was invited to identify the errors of fact it relies upon. The appellant referred to the “witness statements” that the Deputy President failed to take into account. The appellant contends that it was unsure whether the Deputy President had received the witness statements at all, despite being advised that the documents had not been received by the Commission at first instance.
As detailed earlier in this decision at [9] and [14], the Deputy President issued directions compelling the provision of evidence and submissions in relation to the unfair dismissal application on 30 March 2023. The appellant did not avail itself of this opportunity, and the Deputy President granted an extension, advising the appellant that a decision may be made on the materials before the Commission in the absence of its compliance. Similarly, on 29 May 2023, the Deputy President issued directions compelling the provision of evidence and submissions in relation to the issue of compensation as a remedy. The appellant did not take this opportunity. Despite an extension being granted to the appellant, it did not file any materials in relation to remedy notwithstanding being advised by the Deputy President that a decision may be made on the materials before the Commission.
I am satisfied the appellant had a fulsome opportunity to file submissions and any supporting evidence in relation to the unfair dismissal application. That it did not avail itself of that opportunity does not give rise to the four contentions of error raised in the Notice of Appeal, which focus on alleged failures to consider an evidentiary case that was not advanced.
Issues of fairness may arise in circumstances where an unrepresented party is rigidly confined to its grounds of review in a notice of appeal. It may be that matters addressed in the grounds of review are intended to be directed towards a particular type of error, but the language used by the appellant is imprecise, or the legal concepts are misunderstood. The matters raised may develop through the appeal process. Notwithstanding this, it remains necessary for an appellant seeking a stay to identify an arguable case in its appeal, with at least some reasonable prospect of success. The mere filing of an appeal application is insufficient to satisfy this element.
The appellant’s Notice of Appeal focuses on a perceived failure to take into account its evidentiary case. The appellant emphasised during the stay hearing that its primary concern arises from an alleged failure to consider the three witness statements that have been produced – for the first time – in its appeal book. The appellant does not submit that it had not been provided with an adequate opportunity to prepare and file these, or any other, materials.
Having regard to the above matters, it appears that the appellant’s application for permission to appeal is focussed on a contention that the Deputy President failed to consider evidence that was not before him. In this respect, the appellant’s application is fundamentally flawed.
The matters of concern which are apparent from the four grounds of appeal do not demonstrate appealable error. They appear to arise by reason of the appellant’s failure to file with the Commission evidence and submissions in support of its position. In circumstances where it is not contended that the appellant was not afforded an adequate opportunity to do so, the appeal grounds do not give rise to an arguable case with some reasonable prospect of success in relation to the appeal.
Having found there to be no arguable case with some reasonable prospect of success in relation to the question of leave to appeal and the substantive merits of the appeal, the application for the stay cannot succeed.
Balance of convenience
Having regard to my conclusion at [33], it is unnecessary to consider whether the balance of convenience weighs in favour of the stay being granted. However, I make the following observations.
In certain circumstances, the requirement to comply with a compensation order where that order is the subject of an appeal, may weigh in favour of a stay. This is so because a successful appeal may quash the order and require that payment be returned.
In the present case, the respondent filed her application five months ago, on 13 February 2023. The Commission has ordered the payment of compensation to which she is entitled, subject to a successful appeal, and I consider that the granting of a stay would disadvantage her.
In order to address this prejudice to the respondent, the appellant was invited to deposit funds equal to the amount of the order into an interest-bearing trust account pending the hearing and determination of the appeal. The appellant declined to do so on the basis that the first instance decision was incorrect. In these circumstances, I would not conclude that the balance of convenience weighs in favour of granting a stay in this matter.
Conclusion and disposition
The appellant’s application for a stay of the order of Deputy President Boyce dated 15 June 2023 in PR763041 is dismissed.
The appellant is required to immediately comply with the terms of the order.
DEPUTY PRESIDENT
Appearances:
Ms. S. Naimey, on behalf of the appellant
Mrs. M. McGinty, with Miss E. McGinty, for the respondent
Hearing details:
2023.
Melbourne (by video using Microsoft Teams)
21 June
[1] PR763041
[2] [2023] FWC 1387
[3] [2023] FWC 1257
[4] [2000] AIRC 785
[5] Ibid at [5] approved on appeal in Kellow-Falkiner Motors Pty Ltd v Edghill[2000] AIRC 786
[6] Dated 21 February 2023
[7] Liability decision at [54]
[8] Liability decision at [55]
[9] PR762594
[10] Appeal Book at 1-18
[11] Liability decision at [3], [6], [21] and [32]-[33]
[12] Liability decision at [32]
[13] Liability decision at [6]
[14] Appeal Book 19-23
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