James Jones T/A the Pet Cemetery & Crematorium v Raquel Ciuzelis

[2014] FWC 6328

[2014] FWC 6328

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

James Jones T/A The Pet Cemetery & Crematorium
v
Raquel Ciuzelis
(C2014/6135)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 SEPTEMBER 2014

Appeal against decision [2014] FWC 5566 of Deputy President Asbury at Brisbane on 15 August 2014 in matter number U2013/10511.

[1] Mr James Jones appealed the decision and order of Deputy President Asbury dated 15 August 2014 1 who found that the termination of Ms Ciuzelis was unfair and ordered that Mr James pay Ms Ciuzelis $18,397.85 less taxation within 14 days of the date of the decision.

[2] At the same time as filing his appeal Mr Jones applied for a stay of the decision and order.

[3] In his email attached to his application he advised that “I leave at 6am tomorrow and will not be able to attend to this matter for five weeks so I seek a stay of the order until the matter is dealt with.”

[4] With his appeal Mr Jones provided a medical certificate that advised he was unable to travel.

[5] As Mr Jones was required to comply with the order of Deputy President Asbury by 30 August 2014, the application for a stay was listed for hearing at 9am on 9 September 2014.

[6] On 5 September 2014 Mr Jones sent an email to chambers advising that as he was overseas he could not attend the hearing. On 6 September 2014 Mr Jones asked for an explanation of the short of notice of the hearing. On 8 September 2014 Mr Jones was advised that as he had applied for a stay it needed to be heard promptly and advised that until a stay order is granted he is required to comply with the order and pay the monies to Ms Ciuzelis. Mr Jones was asked if he wished to pursue the application for a stay.

[7] Ms Ciuzelis attended the hearing but did not make any submissions. Mr Jones as advised was unable to attend.

[8] After the hearing an email from Mr Jones sent early that morning was brought to my attention. Mr Jones asked if the matter could be dealt with after 11 October 2014.

[9] A party seeking a stay of an order to pay monies by a fixed date is required to act promptly. In this case Mr Jones did not seek a stay until after he was required to comply with the order.

[10] I have considered whether an adjournment of this matter should be granted. However given the date for compliance with the order had already passed it was appropriate to consider whether a stay should be granted on the material before the Commission. No disadvantage would flow to Mr Jones if the matter were considered as a decision to grant the stay would be to his benefit and if no stay were granted his position would not be prejudiced as even if the application for a stay was adjourned he would still be required to comply with the order of Deputy President Asbury.

[11] A party seeking a stay of a decision and order of the Commission is required make a case to the Commission as to why such a stay should be granted. Mr Jones in his application did not set out any grounds as to why a stay of the order and decision should be granted.

[12] Parties against whom orders are made are required to comply with those orders. At the hearing of the application Ms Ciuzelis advised that Mr Jones had not complied with the order.

[13] I have had regard to the fact that Mr Jones is unrepresented in this matter and had advised that he was unable to attend to his application until after 11 October 2014, which is a date significantly after the date on which Mr Jones was required to comply with the order.

[14] I have considered the grounds of appeal filed by Mr Jones and the decision of Deputy President Asbury. In summary the appeal grounds state that Deputy President Asbury made erroneous factual findings, failed to have regard to relevant facts and made findings about how long Ms Ciuzelis would have remained employed which could be disproved if Mr Jones was given the opportunity. Mr Jones in his grounds of appeal did not submit that any of these matters involve significant error of facts. 2

[15] Mr Jones did not in his notice of appeal raise any public interest considerations. 3

[16] I am unable to conclude on the material before the Commission that Mr Jones has an arguable case with some reasonable prospects of success in respect of either permission to appeal, or on the merits, or that the balance of convenience favours the granting of a stay order. 4 The application for a stay is therefore dismissed.

DEPUTY PRESIDENT

 1   [2014] FWC 5566 and PR 554303

 2   See section 400(2)

 3   See section 400(1)

 4   Gippsland Waste Services Pty Ltd v Irene Meadley[2013] FWC 3090 at [3]-[5]

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