KVD Resort Management Group P/L ATF Connolly Family Trust t/a Great Eastern Motor Inn v Ms Julie Baker

[2014] FWC 7243

[2014] FWC 7243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

KVD Resort Management Group P/L ATF Connolly Family Trust t/a Great Eastern Motor Inn
v
Ms Julie Baker
(C2014/1840)

VICE PRESIDENT HATCHER SYDNEY, 16 OCTOBER 2014

Appeal against decision PR555404 of Commissioner Johns at Brisbane on 11 September 2014 in matter number U2014/3925.

[1] This decision reproduces in edited form the reasons for decision which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 13 October 2014.

[2] The appellant, KVD Resort Management Group Pty Ltd (KVD), has lodged a notice of appeal against a decision of Commissioner Johns issued on 11 September 2014 1. In that decision, the Commissioner found that Ms Julie Baker, a former casual employee of KVD, had been dismissed, and that her dismissal was harsh, unjust or unreasonable. The Commissioner did not proceed to order a remedy in that decision, but gave the parties an opportunity to provide further evidence and submissions on the question of remedy.

[3] The notice of appeal was filed on 3 October 2014, a day after there had been a further hearing on the question of remedy and 22 days after the original decision.

[4] The notice of appeal sought a stay of the original decision. However, before the stay could be heard, the Commissioner on 10 October 2014 issued his decision on remedy.  2 In that decision, the Commissioner determined that KVD should pay Ms Baker compensation in the amount of $5,884.57, payable in 3 equal monthly instalments. An order to that effect was issued.3

[5] At the hearing of the stay application, Mr Warren for KVD foreshadowed that the appellant intended to amend its appeal notice to encompass the further decision and order of 10 October 2014, and sought a stay of that decision and order.

[6] I will proceed for the purpose of the stay application on the basis that the notice of appeal also challenges the further decision and order of 10 October 2014, and that the application before me seeks to stay the compensation payments required by that decision and order.

[7] The principles applicable to the consideration of a stay application are well-established. The Commission must positively be satisfied as to two matters in order for a stay application to be successful. 4 The first is that the Commission is satisfied that there is a arguable case, with some reasonable prospects of success, in respect of both the question of permission to appeal and the substantive merits of the appeal. In the case of an appeal from an unfair dismissal decision, this will necessarily involve a consideration as to whether there is an arguable case that the appeal attracts the public interest so that the criterion for the grant of permission to appeal in s.400(1) of the Fair Work Act 2009 is capable of satisfaction. Such an assessment is necessarily preliminary in nature, based on an analysis of the grounds of appeal and limited argument, and is not intended to foreclose the outcome of the appeal. The second is that the balance of convenience weighs in favour of the appeal being stayed. Unless both elements are satisfied, the stay is to be refused.

[8] In respect of the first matter, KVD submitted that the Commission erred in finding that Ms Baker had been dismissed by KVD. It was not in dispute that Ms Baker was a casual employee who had been engaged by KVD on a regular and systematic basis for a period in excess of 12 months.

[9] The evidence demonstrated that Ms Baker, who was a housekeeper employed by KVD at the motel which it operated, had been approved to go on leave from 9 to 19 January 2014. On 5 January, KVD notified Ms Baker that she was not required to work on the 3 days prior to her taking leave. Ms Baker observed (because she lived behind the motel) other persons performing the shifts she was normally required to perform during those days.

[10] On 7 January 2014, Ms Baker sent an email to the manager of KVD asking for confirmation of her employment status. The email included the following:-

“Please could you clarify if I will be returning to my regular and systematic hours of casual employment when I return from my holidays on 19 January 2014.”

[11] The reply from KVD the following day was as follows:

“Thank you for your note, I would suggest you look for alternative work.”

[12] The Commissioner found that this constituted a termination of employment on the employer’s initiative.

[13] I consider that this finding was reasonably open on the evidence, particularly given that KVD has not provided any work whatsoever to Ms Baker since that date, contrary to its position that it never intended to stop offering such casual shifts to Ms Baker as it had available. I do not consider, on the material before me, that KVD would have an arguable case with reasonable prospects of success that there was error of such a nature that would attract the public interest and thus permit the grant of an appeal.

[14] KVD also submitted that the Commissioner erred in finding at [29] of the first decision that the Small Business Fair Dismissal Code had not been complied with. It was not in dispute that KVD was a “small business employer” as defined in s.23 of the Act. However, the transcript of the hearing at PNs 1017 - 1023 reveals that the Commissioner inquired of KVD as to its position if he found, contrary to its primary position, that Ms Baker had been dismissed. That included a specific inquiry as to whether the Small Business Fair Dismissal Code had been complied with. KVD’s response was that the Code had not been complied with, in that it was not a summary dismissal, and that the consultation requirements which otherwise applied under the Code had not been complied with.

[15] KVD sought to alter its position on this question in the hearing of the stay application. However, I do not consider that it would be successful in demonstrating error on the part of the Commissioner on this point in circumstances where the Commissioner’s finding was consistent with KVD’s clear concession at the hearing. The decisions in Holcombe v Coulton 5and Metwally v University of Wollongong6 would operate to bar a change in position in the appeal on that issue.

[16] I do not consider that, for the purposes of the stay application, KVD has demonstrated that it has an arguable case with reasonable prospects of success. Accordingly, it is not necessary for me to consider the balance of convenience issue.

[17] The application for a stay is dismissed.

VICE PRESIDENT

Appearances:

I. Warren for the KDV Resort Management Group P/L ATF Connolly Family Trust t/a Great Western Motor Inn

J. Baker via telephone on her own behalf

Hearing details:

2014.

Sydney:

13 October.

 1   [2014] FWC 6374

 2   [2014] FWC 7201

 3   PR556517

 4   See Edghill v Kellow-Falkiner Motors Pty Ltd [2000] AIRC 785, Print S2639 at [5]

 5 (1986) 162 CLR 1

 6 (1985) 60 ALR 68

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