Hit and Bounce Pty Ltd T/A FX Zone v Xiao Liu

[2016] FWC 1860

[2016] FWC 1860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Hit and Bounce Pty Ltd T/A FX Zone
v
Xiao Liu
(C2016/3005)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 24 MARCH 2016

Appeal against decision [2016] FWC 834 and order PR577680 of Commissioner Riordan at Sydney on 3 March 2016 in matter number U2015/9546 – stay application – stay application dismissed.

[1] On 3 March 2016, Commissioner Riordan issued a Decision 1 and Order2 in the application for unfair dismissal remedy by Ms Xiao Liu against Hit and Bounce Pty Ltd t/as FX Zone (Hit and Bounce). The Commissioner found that the termination of Ms Liu’s employment was unfair, and ordered Hit and Bounce to pay Ms Liu $7,988.40.

[2] The Order did not specify a date by which the monies should be paid to Ms Liu.

[3] On 16 March 2016, Hit and Bounce lodged a notice of appeal in which it sought permission to appeal and appealed the Decision and Order. The notice of appeal also sought a stay of the Decision and Order pending the hearing and determination of Hit and Bounce’s appeal.

[4] This decision is concerned with the application for a stay order.

[5] In the afternoon of 16 March 2016, Ms Liu was served with a copy of Hit and Bounce’s Notice of Appeal. Ms Liu sent an email to the Fair Work Commission which said:

“Fair Work Commission,

I am going to go overseas on 18/03/2016 and will be back on 10/05/2016.”

[6] Accordingly, I listed the stay application for hearing, in person, at 5:00 pm on Thursday 17 March 2016 for parties to appear at the Fair Work Commission in Sydney. I caused my associate to send an email to parties explaining that the stay application needed to be heard promptly because Ms Liu would be travelling overseas on 18 March 2016.

[7] At 9:38 pm (ADST) on Wednesday 16 March 2016 Mr Jamison Merriam, from Hit and Bounce, emailed my chambers saying:

“… Unfortunately I am overseas at the moment and will not be back until early April therefore I annoy (sic) attend tomorrow’s hearing.

I am unsure as to my options.

Thanks
Jamison Merriam
Hit and Bounce”

[8] The stay application listed on 17 March 2016 was cancelled and a new Notice of Listing was sent to parties for a hearing of the stay application on the papers. Directions were issued to parties as follows:

“DIRECTIONS

1. The Appellant is to provide written material supporting its stay application by midday (ADST) Friday 18 March 2016.

2. The Respondent is to provide written material in response by close of business (ADST) Wednesday 23 March 2016.

3. A Decision regarding the stay application will be handed down at 11 am on Thursday 24 March 2016.

NOTE

1. Parties are referred to this Practice Note for information about and recent decisions in stay applications.”

[9] On 17 March 2016 at 7:20 pm, Ms Liu emailed my chambers to advise that she would be travelling overseas at 8:15 am on the following day, 18 March 2016, and would not have access to email while overseas. Ms Liu noted that she “would not be able to see Hit and Bounce’s stay application and the reason for stay application”. Ms Liu said further that “the only possible way for me is to send my response now”.

[10] Ms Liu set out her opposition to the stay application as follows:

“I don't agree the stay application. In the past 9 months since I got unfairly dismissed Jamison Merriam/Hit and Bounce Pty Ltd have no intention to make any payment for my unpaid wages, entitlements, superannuation and unfair dismissal remedy. They deliberately delay and waste time.

1. During the procedure with Fair Work Commission, the Commissioner stated: ‘I am of the view that the behaviour of Mr Merriam throughout the conduct of this matter has been disappointing and inappropriate. I have a great deal of sympathy for the position that Ms Stevenson was placed in due to the behaviour of Mr Merriam and the difficulties and unfairness that this behaviour place upon Ms Liu.’ (refer to Fair Work Decision point 8 on page 2).

2. I filed application with Federal Circuit Court to claim my unpaid wages, entitlements and superannuation, the hearing date was on 18/03/2016, Jamison Merriam requested postponed to 20/5/2016 without evidenced reason. Jamison Merriam sold his property in Australia and moved to USA with his whole family since September 2015 and never come to Australia since that time. It is unlikely that Jamison Merriam will come to Australia and attend the Court hearing on 20/5/2016.

3. Goodman (the landlord of Hit and Bounce Pty Ltd) agreed to pay Hit and Bounce Pty Ltd for early termination of leasing, the vacating date from the premises has been changed to 30/04/2016. Goodman will make the payment soon after the vacating. Hit and Bounce Pty Ltd hasn't sign any lease agreement for moving the Trampoline Centre. It is unlikely that the business will be existing after April 2016.

4. The Stay application is a further delay and waste of time.

5. All Jamison Merriam had done is unfair to me. He must stop his bad behaviour.

Best regards,

Xiao Wu Liu”

[11] On Friday 18 March 2016 at 10:09 am, my associate forwarded Ms Liu’s email of 17 March 2016 to Mr Merriam.

[12] Hit and Bounce has not filed any material supporting its stay application. I note that all correspondence from my chambers to Mr Merriam was sent to the email address from which we received the email referred to in paragraph [7] above. There were no notifications received advising that any of that correspondence could not be delivered.

[13] The principles applied to the determination of stay applications in this jurisdiction are those stated in the decision of Edghill v Kellow-Falkiner Motors Pty Ltd 3 as follows:

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

[14] Hit and Bounce, by its failure to comply with directions to file material supporting its stay application by midday (ADST) Friday 18 March 2016, or at all, has not established that the above principles apply to its stay application.

[15] Ms Liu’s opposition to the stay, although untested, leads me to conclude that the balance of convenience does not weigh in favour of the Decision and Order subject to appeal being stayed.

[16] Accordingly, the stay application is dismissed.

SENIOR DEPUTY PRESIDENT

 1   [2016] FWC 834.

 2   PR577680.

 3   [2000] AIRC 785, Print S2639.

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