Heran Building Group Pty Ltd v Mr Eduard Anneveldt

[2013] FWC 3057

[2013] FWC 3057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Heran Building Group Pty Ltd
v
Mr Eduard Anneveldt
(C2013/4296)

DEPUTY PRESIDENT ASBURY BRISBANE, 15 MAY 2013

Appeal by Heran Building Group Pty Ltd - Application for a stay order.

[1] This Decision, now edited, was issued during proceedings on 14 May 2013.

[2] This is an application for a stay order by Heran Building Group Pty Ltd (the Appellant). The stay order is sought pursuant to s.606 of the Fair Work Act 2009 (the Act) in relation to an appeal lodged by the Appellant against a decision of Commissioner Cambridge. In the decision, the Commissioner determined that Mr Edward Anneveldt (the Respondent) had been unfairly dismissed, and ordered compensation in the amount of $27,600.00 to be paid to the Respondent within 21 days.

[3] The Appellant seeks a stay with respect to the part of the order that requires it to pay that amount to the Respondent within 21 days.

[4] Section 606(1) of the Act provides as follows:

606 Staying decisions that are appealed or reviewed

(1) 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.

[5] Before granting a stay order it is well established that the Commission is required to be satisfied that there is an arguable case with some reasonable prospects of success, in respect of permission to appeal and the substantive merits of the appeal. 1 In addition the balance of convenience must weigh in favour of the order subject to appeal being stayed.2

[6] The Appellant contends (interalia) that the decision of the Commissioner contains errors of law and significant errors of fact. In particular it is contended that the Commissioner erred in law by construing s.387(a) of the Act as requiring the Appellant to call evidence from the decision maker and/or the author of a letter setting out the reasons for dismissal, in order to establish a valid reason for the dismissal. The Appellant further contends that the Commissioner erred in law in determining that evidence was required from the decision maker before a finding that there was a valid reason for the dismissal could be made, and that such a finding could not be made, in the absence of such evidence. It is also contended that the Commissioner erred by finding that evidence from the decision maker was required to establish that the reasons asserted by the Appellant for the dismissal were the actual reasons.

[7] The issues raised by the Appellant are such that I am satisfied that there is an arguable case for permission to appeal and that the Appellant has some reasonable prospects of success with respect to the merits of the appeal.

[8] In relation to the balance of convenience, an Affidavit has been tendered by the Appellant made by Mr Jason Paul Prismall, Corporate Counsel deposing to the investment by the Appellant of the sum of $27,600.00 in an interest bearing account with the Commonwealth Bank of Australia in a Business On-line Saver Account at an interest rate governed by RBA rates and currently 3% per annum. Mr Prismall states that the sum has been set aside securely and separately pending the outcome of the appeal.

[9] Mr Prismall further deposes that he is authorised by the Appellant to undertake that it will hold the invested sum (including accrued interest) pending the hearing and determination of the appeal and the order of the Commission upon the hearing of the appeal, and will pay that sum to the Respondent or his solicitors in accordance with any order of the Commission as an outcome of the appeal.

[10] I accept as submitted on behalf of Anneveldt that he may be suffering financially, and would be assisted by the compensation ordered being paid to him pending the outcome of the Appeal. I also accept that Mr Anneveldt may have capacity to repay the amount of compensation in the event the appeal succeeds, by accessing funds from his mortgage or by some other means. However this will not quarantine the finds in a manner that limits the possibility of the Appellant having to take further legal action to recover the funds if the appeal succeeds. Further this approach is not consistent with the established means of dealing with this issue in stay applications before the Commission.

[11] I accept the undertaking and the evidence of Mr Prismall. Accordingly I am also satisfied that the balance of convenience weighs in favour of the order subject to appeal being stayed.

[12] An order will issue staying the order of Commissioner Cambridge in U2012/14491, on the basis of the undertaking and the proposed actions set out in Mr Prismall’s affidavit.

DEPUTY PRESIDENT

Appearances:

Mr S. Reidy of Counsel on behalf of the Appellant.

Mr A. Fitzsimons of Counsel and Ms G. Allison on behalf of the Respondent.

Hearing details:

2013.

Brisbane:

May 14.

 1   Kellow-Falkiner Motors Pty Ltd v Edghill Print S2639, 24 January 2000 per Ross VP at [5].

 2   Coal and Allied Operations Pty Limited v Crawford and Others (2001) 109 IR 409 at [13].

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