Hume Investments (ACT) Pty Ltd T/A Alpha Fresh Foods v Mr Peter Preston

[2014] FWC 5945

[2014] FWC 5945

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Hume Investments (ACT) Pty Ltd T/A Alpha Fresh Foods
v
Mr Peter Preston
(C2014/5774)

SENIOR DEPUTY PRESIDENT HARRISON SYDNEY, 28 AUGUST 2014

Application to stay a decision and compensation order in lieu of reinstatement, issued by Deputy President Smith at Canberra on 17 July 2014 and Melbourne on 18 July 2014 respectively in matter number U2014/3693.

[1] This decision concerns an application made by Hume Investments (ACT) Pty Ltd t/a Alpha Fresh Foods (the appellant) for a stay of the whole of a decision made by Deputy President Smith on 17 July 2014 and an order made on 18 July 2014 pending the outcome of the appeal it has made against the decision and order.

[2] At the stay hearing before me on 22 August 2014, I told the parties that I would not be granting the stay. These are the reasons for my decision.

[3] The decision relates to an application made by Mr Peter Preston (Mr Preston/the respondent) under s.394 of the Fair Work Act2009 (the Act) in which he alleged his dismissal from employment with the appellant was unfair.

[4] The Deputy President ordered the appellant to pay an amount of remuneration to Mr Preston of 26 weeks’ pay, less appropriate taxation, as compensation in lieu of reinstatement. The payment was due to be paid within 14 days which date would have been 30 July 2014. 1 The Deputy President had announced his decision at the conclusion of the hearing and, on the following day, issued an order to the same effect.2 He published reasons for his decision on 25 July 2014.3

[5] The appeal is made under s.604 of the Act. That section provides that a person who is aggrieved by a decision made by the Commission may appeal the decision. Permission to appeal is required. Section 604 provides that the Commission may stay the operation of the whole or part of a decision on any terms and conditions it considers appropriate, until a decision in relation to the appeal is made or the Commission makes a further order.

[6] Section 400 of the Act is also relevant to appeals against a decision made in relation to an unfair dismissal application. It is in these terms:

“400 Appeal rights

(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

[7] The principles concerning whether a stay application will be granted are well-established. I must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the grant of permission to appeal and the substantive merits of the appeal. In addition, I must be persuaded that the balance of convenience weighs in favour of the decision, the subject of the appeal, being stayed. Each of these elements must be established before a stay order will be granted.

[8] The Appellants grounds of appeal are brief, they plead:

“1. The decision maker was guided by irrelevant facts

2. The decision made is unreasonable or plainly unjust.”

No particulars are given identifying anywhere in the reasons for decision what the appealable errors may be. There is no identification of any jurisdictional error or a substantial error of fact.

[9] The reasons in the notice of appeal as to why the Commission should be persuaded the appeal is in the public interest are also short:

“1. Substantial injustice may result if permission is refused”.

Again no particulars are given to support this as being a reason why permission to appeal should be granted.

[10] It should be noted that prior to the hearing before the Deputy President the appellant had not complied with directions issued 21 May 2014, to file submissions and any material upon which it relied. This was despite advice given to the appellant of the necessity for it to comply, and the possible consequences of it not doing so. I also note that there was no appearance for, or on behalf of, the appellant at the hearing before the Deputy President on 17 July 2014. No application for an adjournment had been made by the appellant, nor was any explanation given for its non attendance.

[11] In its Form F3 Employer Response of 12 February 2014, the appellant had indicated it was a small business employer and that Mr Preston had less than 12 months service at the time his employment was terminated. The evidence and submissions before the Deputy President was that given by Mr Preston, his father, and his mother (Ms Powell) along with some documentary evidence. It does not appear there was any challenge to the appellant being categorised as a small business employer but the date of commencement of employment was in contest. Mr Preston gave evidence about the date he commenced work. He and his parents gave evidence in respect of his employment and the circumstances that led to his dismissal. There being no appearance by the appellant, and no challenge to the evidence led on behalf of the respondent, the Deputy President was entitled to, and did rely on it, and make his findings based on it.

[12] At the stay hearing before me, Mr Frank Iannelli, a director of the appellant appeared and Ms Powell appeared for Mr Preston. Prior to his submissions, I explained to Mr Iannelli the considerations he needed to address and which I would take into account when deciding whether to grant a stay.

[13] The appellant’s submissions were brief. Mr Iannelli submitted that the appellant has a meritorious case as Mr Preston had no medical practitioner evidence `and there was no evidence Mr Preston’s medical condition resulted in his dismissal.

Conclusion

[14] I am not persuaded by the submissions put in the stay hearing that the appellant has established it has an arguable case that permission would be granted on the basis it would be in the public interest to do so. Similarly, I am not persuaded the submissions or grounds of appeal, as they are currently pleaded, establish the appellant has an arguable case on the merits of the appeal. As the appellant has not persuaded me about these matters there is no need for me to consider whether the balance of convenience would favour the grant of the stay order.

[15] For the reasons I have outlined above, the application for the stay of the decision of 17 July 2014 and the order of 18 July 2014 is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr F Iannelli on behalf of the Appellant.

Ms A Powell on behalf of the Respondent.

Hearing details:

2014.

Sydney.

August 22.

 1   That is from the decision, 1 August 2014 would be the deadline from the order.

 2   PR553335.

 3   [2014] FWC 4903.

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