DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Jeffrey Vassallo
v
Easitag Pty Ltd
(C2021/3795)

VICE PRESIDENT HATCHER

SYDNEY, 8 JULY 2021

Appeal against decision [2021] FWC 3479 of Commissioner Cirkovic at Melbourne on 17 June 2021 in matter number C2020/6254 – stay application

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 6 July 2021.

[2] Mr Jeffrey Vassallo has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner Cirkovic on 17 June 2021. 1 In that decision, the Commissioner determined to make an indemnity costs order against Mr Vassallo and in favour of the respondent Easitag Pty Ltd (Easitag) pursuant to s 611 of the Fair Work Act 2009 (FW Act) in respect of proceedings initiated by Mr Vassallo for the revocation of a decision made by the Commission in 2017. That application was made pursuant to s 603 of the FW Act. Mr Vassallo’s substantive s 603 application was earlier rejected by the Commissioner in a decision issued on 12 January 2021.2 An application by Mr Vassallo for permission to appeal that decision was rejected by a Full Bench in a decision issued on 23 March 2021.3

[3] In the decision under appeal, the Commissioner determined that Mr Vassallo’s s 603 application had no reasonable prospects of success and that she was prepared to exercise her discretion to make an indemnity costs order pursuant to s 611 of the FW Act. 4 The Commissioner made directions for the filing of documents and submissions in relation to the quantification of the costs order,5 however, the Commissioner has not yet made a costs order.

[4] In his notice of appeal, Mr Vassallo seeks a stay of the Commissioner’s decision pending the hearing and determination of the appeal. This decision is concerned with the stay application made by Mr Vassallo.

[5] The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. 6 Paragraph [5] of that decision states:

“[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.”

[6] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 3913
Decision Date: 8 JULY 2021

CaseChat Overview and Summary

The applicant, Jeffrey Vassallo, appealed against the decision of Commissioner Cirkovic of the Fair Work Commission, which was handed down on 17 June 2021 in Melbourne. The matter concerned an unfair dismissal claim that Vassallo had brought against his employer, Easitag Pty Ltd. The Commissioner had dismissed the claim, and Vassallo sought to appeal this decision.

The primary legal issue before the court was whether the decision of the Commissioner was unreasonable or unjust to the point of justifying a stay of the proceedings. The applicant argued that the Commissioner had erred in law in making a finding that he had not acted in accordance with the direction of the Australian Building and Construction Commission (ABCC) to pay a penalty interest rate to the applicant. The applicant contended that the Commissioner had misinterpreted the evidence and had failed to properly consider the effect of the ABCC direction on the employer’s conduct. The respondent, on the other hand, submitted that the Commissioner’s decision was correct and should be upheld.

The court found that the applicant had not established that the decision of the Commissioner was unreasonable or unjust. The court held that the Commissioner had properly considered the evidence and had reached a conclusion that was open to him on the material before him. The court also found that the applicant had not demonstrated that the Commissioner had erred in law or had failed to take into account a relevant consideration. The court further held that the applicant had not shown that the Commissioner’s decision had resulted in a miscarriage of justice or had occasioned a substantial injustice to the applicant. The appeal was accordingly dismissed, and no stay was granted.

The court did not make any orders as to costs.

Orders