Just Relations - Consultants v Ecolab Pty Ltd

[2017] FWC 1126

[2017] FWC 1126

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Just Relations - Consultants
v
Ecolab Pty Ltd
(C2017/890)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 FEBRUARY 2017

Appeal against decision [[2016] FWC 8491] of Commissioner Bissett at Melbourne on 25 November 2016 and Order PR589765 of Commissioner Bissett at Melbourne on 27 January 2017 in matter number U2016/7804 – application for a stay order.

[1] Mr Garry Dircks has appealed the decision and order 1 of Commissioner Bissett that he pay part of the legal costs incurred by Ecolab Pty Ltd in an unfair dismissal application in which he represented Ms Lindy Smith. Mr Dircks seeks a stay of the order which Ecolab opposed.

[2] The first ground of appeal that needs to be considered at this stage was that Mr Dircks was denied procedural fairness as he was not provided with copies of the schedule of costs relied upon by Commission Bissett in making her decision as to the quantum of cost and hence was not given an opportunity to make submissions as to the appropriateness of the quantum of costs claimed.

[3] The second ground is that Commissioner Bissett erred in determining that Mr Dircks had engaged in unreasonable conduct that had caused Ecolab to incur costs.

[4] There is no dispute that the approach to a grant of a stay is that “the Commission needs to 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 to the appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.” 2

[5] In this matter Commissioner Bissett issued the decision determining the liability for Mr Dircks to pay costs. In its application for costs, Ecolab had provided a schedule of the costs claimed. In his submissions to Commissioner Bissett, Mr Dircks made no submissions in response to the quantum of the costs nor the items sought to be claimed.

[6] In her decision Commissioner Bissett rejected the schedule of costs provided by Ecolab and directed Ecolab to file an itemised schedule of costs, description of the work performed and the basis of the costs sought. She said that upon receipt of the information orders would be issued. 3

[7] Ecolab provided an itemised schedule of costs and did not provide a copy to Mr Dircks. The correspondence to the Commission which was also not copied to Mr Dirks advised that a copy had not been provided to the other parties and noted that there was no requirement to serve the revised schedule. The email noted that Ecolab would prefer that the narrative of work carried out not be disclosed.

[8] The Commissioner’s associate responded on behalf of Commissioner Bissett seeking further information in relation to the schedule and sought an explanation as to why the material should not be provided to the other parties.

[9] Ecolab provided further information and noted that it no longer pressed that the schedule not be provided to the other parties. However the orders issued by Commissioner Bissett were issued without that documentation being provided.

[10] It was acknowledged in relation to the appeal against the decision of Commissioner Bissett the appeal was not lodged within 21 days of the decision. It was said that an extension of time should be granted because Mr Dircks could not assess the utility of the appeal without knowing what the quantum of costs was. It was put that Mr Dircks may have accepted the obligation to pay the costs if the costs had been assessed on the usual party-party basis because they may well have been minimal.

[11] I am 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 relation to the contention that Mr Dircks was denied procedural fairness because the information relied upon by the Commissioner to determine the quantum of costs was not provided to Mr Dircks prior to the order for costs being made.

[12] In those circumstances it is not necessary for me to consider the other grounds of appeal.

[13] Mr Dircks has paid half of the monies ordered to be paid. There was no evidence that Mr Dircks would suffer any financial hardship if he was required to comply with the order. Further there was no evidence that Ecolab would not, if the order was varied or set aside, repay the monies paid.

[14] In those circumstances I am unable to conclude that the balance of convenience weighs in favour of the making of a stay order.

[15] Therefore Mr Dircks' application for a stay is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Addison for the Appellant.

T. Sissons for the Respondent.

Hearing details:

2017.

Melbourne:

23 February.

 1   [2016] FWC 8491 and PR589765

 2   Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited[2014] FWC 4276 at [10]

 3   [2016] FWC 8491 at [97]

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