Inna Grabovsky v United Protestant Association NSW Ltd T/A UPA

[2019] FWC 3822

[2019] FWC 3822

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Inna Grabovsky
v
United Protestant Association NSW Ltd T/A UPA
(C2019/3120)

DEPUTY PRESIDENT MASSON MELBOURNE, 3 JUNE 2019

Appeal against decision [2019] FWC 2915 of Commissioner Johns at Sydney on 30 April 2019 in matter number C2018/685 – stay application

Introduction

[1] This decision concerns an application for a stay order by Ms Inna Grabovsky (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 against a decision of Commissioner Johns in Inna Grabovsky V United Protestant Association NSW Ltd T/A UPA 1(the Decision). In the Decision, the Commissioner determined pursuant to s. 368 of the Fair Work Act 2009 (the Act) that he was satisfied that all reasonable steps (other than by arbitration) to resolve the Appellant’s s. 365 application (GP Application) had been or were likely to be unsuccessful. As a consequence the Commissioner issued a Certificate under s. 368 of the Act.

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

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.

[3] The Appellant seeks a stay of the whole of the Decision of Commissioner Johns and of the issuing of the Certificate pursuant to s. 368 of the Act. A hearing was conducted before me on 30 May 2019 at which the Appellant was represented by her husband Mr Igor Grabovsky. The United Protestant Association NSW Ltd T/A UPA (the Respondent) was represented by Mr Stuart Leverton, their Regional Manager.

Background

[4] The appellant filed a Form F8 on 9 February 2018 following her dismissal by the United Protestant Association NSW Ltd T/A UPA (the Respondent). The Respondent in its Form F8A response denied liability and objected to the GP Application being commenced outside the statutory time period set down in s. 366 of the Act. As the GP Application appeared to have been made out of time a jurisdictional hearing was conducted before Deputy President Gooley, following which she determined in a decision dated 15 March 2018 2 to grant an extension of time within which the Appellant was able to file her GP Application.

[5] In determining to grant an extension of time the Deputy President also determined that the Appellant’s date of dismissal was 20 December 2017. Despite being granted an extension of time the Appellant subsequently appealed the Deputy President’s decision but was ultimately unsuccessful in that appeal. 3

[6] Following Deputy President Gooley’s extension of time, the Appellant’s GP Application was allocated to Commissioner Johns for conciliation. In response to submissions from the Appellant on 29 March 2018 and following seeking the views of other parties, Commissioner Johns determined to not proceed to consider the matter of issuing a certificate pursuant to s. 368, until after the conclusion of two other matters that were before the Commission at that time involving the Appellant and Respondent. Those two other matters were a s. 739 dispute matter (the Dispute Matter) filed by the Appellant 4 and a s. 185 agreement application matter (the Agreement Matter) filed by the Respondent.5

[7] In correspondence to Commissioner Johns on 5 April 2018 the Respondent stated its position that in its view the positions of the parties were “intractable”, and would not benefit from conciliation convened in the Commission. The Respondent further submitted that the preconditions necessary for the issuing of a certificate were met and requested that a certificate under s. 368(3) be issued.

[8] The Dispute Matter was disposed of by way of a decision of Commissioner Johns to dismiss that application on 5 December 2018 pursuant to s 587 of the Act. The Commissioner’s decision was then unsuccessfully appealed by the Appellant to a Full Bench which rendered its decision on 26 March 2019. 6 The Agreement Matter was withdrawn by the Respondent on 30 April 2019.

[9] By reason of the Dispute Matter having been resolved by the Full Bench decision on 26 March 2019, and the Agreement Matter having been withdrawn on 30 April 2019, Commissioner Johns proceeded to deal with the Appellant’s GP Application. After setting out the history to the Appellant’s GP Application the Commissioner then relevantly stated as follows in the Decision;

[4] By reason of the:

a) Dispute Matter having been resolved by the Full Bench refusing permission to appeal; and

b) Agreement Matter having been concluded by it being discontinued, the two conditions I set to me dealing with the GP Application have now been satisfied. I now do so.

[5] Noting that the UPA has already indicated that it will not consent to the Commission arbitrating the GP Application under s.369 of the FW Act, the only relevant power of the Commission is to be found in section 368 of the FW Act. It provides as follows:

“368 Dealing with a dismissal dispute (other than by arbitration)

(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).

(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a) the FWC must issue a certificate to that effect; and

(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.”

[6] In the present matter I am satisfied that an application has been made under s.365 of the FW Act. Consequently, pursuant to s.368(1), I “must deal with the dispute (other than by arbitration).”

[7] The note to s.368 provides that,

Note:  The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.

[8] The use of the word “may” means that I am not required to deal with the dispute by any particular means.

[9] In his submission on 29 March 2018, Mr Grabovsky noted that the GP Application had been allocated to me in addition to me already having carriage of the Dispute Matter and the Agreement Matter. He wrote,

“Allocation of all matters concerning the same parties to one Member of the Commission is a prudent decision because all matters are interconnected and [the] Member of the Commission will have full and comprehensive information from both sides of the conflict to make an informed decision, which in the case of multiple Members could not be achieved to the same degree.”

[10] I agree. There have been considerable benefits to the parties and efficiencies in the conduct of various proceedings derived from a single member dealing with all of the various applications at first instance. For my manifold sins that was me. Consequently, I am well informed about the attitude of the parties to resolving their various differences through mediation or conciliation. I have seen no evidence that mediation or conciliation would be productive.

[11] In any case, in the present matter, I note that the UPA have already submitted that;

“The positions of the parties are intractable. In the respondent’s submission, the [GP Application] will not benefit from a conciliation convened in the Commission.”

[12] That submission is consistent with how the Respondent has conducted itself in each and every matter before me. The UPA has no interest in resolving, through voluntary means, the $90,000 claim being made by Mr Grabovsky on behalf of his wife.

[13] For these reasons I am satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.”

The grounds of appeal

[10] The Appellant raises nine grounds of appeal;

(1) The Commission acted upon wrong principles and in breach of principles;

(2) The Commission’s decision renders ineffective provisions of the statute;

(3) The Commission did fail to take the relevant information into consideration;

(4) The Commission was acting outside its jurisdiction;

(5) The Commission arrived to its decision in deliberate error of facts in error of law and in error of determination perverting the course of justice;

(6) Commissioner Johns acted with actual bias, prejudice and hatred towards the Applicant and arrived to his/her decision in deliberate error of facts in error of law and in error of determination with intention to harm the Appellant and her family.

(7) Commissioner Johns has conflict of interest in dealing with this dispute;

(8) Commissioner Johns acted corruptly; and

(9) The Commission was acting upon legally invalid submissions (by the UPA).

Appellant Submissions

[11] In support of the application for a stay of the Decision the Appellant variously submits in respect of there being an arguable case with reasonable prospects of success that;

•  The Commission failed to determine the applicable industrial instrument in respect of the Appellant’s employment;

•  The fundamental question of whether the Appellant had in fact been dismissed was not considered by the Commission;

•  The Appellant presses her position that she has not been lawfully terminated by the Respondent;

•  The Commissioner ignored the substantive dispute in respect of the status of the Appellant’s employment;

•  The Commissioner has a conflict of interest;

•  The Commissioner refused to summon witnesses necessary to establish the Appellant’s employment status; and

•  The Commission could not have properly reached the necessary level of satisfaction as to the requirements of s. 368(3)(b) having been met in order to issue the certificate pursuant to s. 368(3)(a).

[12] The Appellant conceded in aural submissions that if the Appellant’s true employment status is such that she has in fact been dismissed, then she accepts that the issuing of the certificate pursuant to s. 368 of the Act by the Commission would be appropriate.

[13] As regards the balance of convenience the Appellant submits that the following matters weigh in favour of a granting of a stay;

•  The continuing psychological impact on the Appellant of the Respondent’s conduct;

•  The granting of the stay would not impose any additional burden on the Respondent by way of inconvenience or financial harm; and

•  The Appellant’s desire to explore every avenue to resolve the underlying dispute between the Appellant and the Respondent.

Respondent Submissions

[14] With respect to whether the Appellant has an arguable case with reasonable prospects of success the Respondent variously submits that;

•  The appeal is misconceived in that it does not reveal any arguable case on either the leave application or the substantive appeal;

•  The only matter that can be appealed is the decision to issue the certificate;

•  The issue of the certificate was made in accordance with the provisions of s. 368(3);

•  The Appellant has not pleaded any grounds that indicate that the discretion was improperly exercised;

•  As the Respondent has objected to the Commission arbitrating the application the Commission has no determinative role in bringing the dispute to an end;

[15] As to the balance of convenience, the Respondent submits that a grant of a stay of the Decision would delay finalisation of the GP Application which cannot indicate that the balance of convenience favours a grant of a stay.

Consideration

[16] It is well established that, in deciding whether to exercise its discretion to grant a stay order, the Commission must be satisfied that the appellant has an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal.⁷ In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed.⁸ In the circumstances of the present matter I turn first to consider the balance of convenience.

[17] The fact that no harm or burden may be imposed on the Respondent by the grant of a stay, as argued by the Appellant, is an insufficient basis on which to find in favour of the Appellant. At best the absence of harm or burden to the Respondent is a neutral consideration and certainly does not weigh in favour of a grant of a stay. As regards the submission of the continuing psychological impact on the Appellant, there was no material before me to support that submission and is not a valid consideration weighing in favour of the granting of the stay sought.

[18] In regards to the desire of the Appellant to exhaust all means of resolving the dispute between her and the Respondent, it is not apparent how that objective will be advanced by the granting of a stay. It seems to me that that particular objective may only be assisted by the Appellant succeeding in her substantive appeal. To the extent it may be a consideration, the point raised by the Appellant does not weigh in favour of the granting of a stay.

[19] It is also relevant to consider the utility of a stay. The issuing of a certificate under s. 368 is a necessary precondition to the making of a general protections court application pursuant to s. 370(a) of the Act. Under s. 370(a) of the Act a general protections application to the court must also be made within 14 days of the certificate having been issued or such further period as the court may allow on application.

[20] Having regard to the fact that the Decision and certificate were issued by the Commission on 30 April 2019 and that the appeal of the Decision was not filed by the Appellant until 17 May 2019, the Appellant is already outside the statutory 14 day court filing period. Consequently, should the Appellant decide to make a general protections court application in the event her appeal is unsuccessful, she would need to seek an extension of time from the court within which to file such application.

[21] It follows from the above that the Appellant would be confronted with the requirement to seek an extension of time within which to file a general protections court application regardless of whether the stay was granted or not. Granting the stay sought would, in the circumstances of her appeal being unsuccessful, make no difference to the requirement for the Appellant to seek an extension of time for the filing of a general protections court application.

[22] Conversely, were the Appellant successful on appeal, the effect of the quashing of the Decision would be no different regardless of whether the stay was granted or not. In simple terms, there is in my view no utility to the granting of a stay as sought by the Appellant.

[23] For the reasons outlined above I am not persuaded that the balance of convenience weighs in favour of the granting of a stay of the Decision.

Conclusion

[24] I consider that the balance of convenience does not weigh in favour of the granting of the stay application. That conclusion makes it unnecessary for me to consider whether the Appellant’s case on appeal is arguable with some reasonable prospects of success. The application for a stay is dismissed.

DEPUTY PRESIDENT

Appearances:

I Grabovsky for Inna Grabovsky

S Leverton for United Protestant Association NSW Ltd

Hearing details:

2019
Melbourne
30 May

Printed by authority of the Commonwealth Government Printer

<PR708952>

 1   [2019] FWC 2915

 2   Inna Grabovsky v United Protestant Association of NSW Limited T/A UPA [2018] FWC 1549

 3   Inna Grabovsky v United Protestant Association of NSW Limited T/A UPA [2018] FWCFB 2474

 4   C2017/7037

 5   AG2017/5218

 6   [2018] FWCFB 6928

7 Kellow-Falkiner Motors Pty Ltd v Edghill Print S2639, 24 January 2000 at [5]; applied in Bank of Sydney Ltd v Repici[2015] FWC 5511 et al.

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