Launtoy Pty Ltd T/A Launceston Toyota v J. Wilkinson-Reed

[2014] FWC 1591

[2014] FWC 1591

The attached document replaces the document previously issued with the above code on 6 March 2014.

The document has been edited to correct footnotes 2 and 6 by deleting “FWA” and replacing with “FWC” and which now read [2014] FWC 644.

Janet Hall

Associate to Deputy President Kovacic

Dated 7 March 2014.

[2014] FWC 1591

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604—Appeal of decision

Launtoy Pty Ltd T/A Launceston Toyota
v
J. Wilkinson-Reed
(C2014/171)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 6 MARCH 2014

Appeal against decision [2014] FWC 644 and order PR547178 of Commissioner Deegan at Canberra on 24 January 2014 in matter number U2013/12547 - stay application granted.

[1] This is an application by Launtoy Pty Ltd T/A Launceston Toyota (the Appellant) for an order staying the order of 24 January 2014 1 by Commissioner Deegan. The Commissioner ordered the Appellant to pay compensation equal to the amount Ms Judith Wilkinson-Reed (the Respondent) earned during the 26 weeks immediately before her dismissal. The order gave effect to the Commissioner’s decision of 24 January 20142 which determined an application by the Respondent, pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of her employment by the Appellant. The stay order is sought pending the determination of an appeal against the decision and order of Commissioner Deegan.

[2] The application for the grant of a stay order is to be determined on the basis recorded in the decision of a Full Bench of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd and P Edghill (Kellow-Falkiner) 3, as follows:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect 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] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.” [references omitted]

[3] The application cites a number of grounds of appeal, including that the decision and order of Commissioner Deegan were plainly unjust and unreasonable in that, inter alia, the Commissioner did not take into account the amount of any remuneration earned by the Respondent (in the form of workers’ compensation payments) between the date of dismissal and the date of the order and that the compensation order of the statutory cap was excessive in the circumstances.

[4] The application was listed for hearing on 18 February 2014. However, neither of the parties attended.

[5] The Appellant subsequently informed the Commission that the Respondent did not object to the application for a stay. The Commission confirmed this with the Respondent and, having done so, requested that the parties submit an agreed draft order.

[6] A draft order was provided to my chambers by the Appellant on 28 February 2014. After being contacted by my chambers, the Respondent confirmed her agreement to the draft order on 5 March 2014.

[7] With regard to those of the Appellant’s grounds of appeal referred to at paragraph [3] above, the approach to determining an appropriate amount of compensation in lieu of reinstatement is set out in a number of decisions, with the formula set out in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg) 4 commonly used, though it has been refined with use. In respect of the treatment of remuneration earned, Sprigg stated that “Workers compensation payments are deducted but not social security payments.”5

[8] Commissioner Deegan’s decision, when canvassing the amount of compensation, deals with the issue mitigation of loss/remuneration earned in the following way:

“[88] As the applicant was on workers compensation payment in the period between the dismissal and the hearing she was not in a position to mitigate her loss by seeking other employment. As at the date of the hearing the applicant’s workers’ compensation payments had ceased.”  6

[9] It is not entirely clear from Commissioner Deegan’s decision as to how, if at all, the workers’ compensation payments received by the Respondent impacted on the level of compensation ordered by the Commissioner.

[10] Accordingly, I consider there is an arguable case on this appeal ground. While, in the absence of further evidence on this issue, I am unable to form a definitive view as to whether or not the application had a reasonable prospect of success on this basis, I do consider that the application on this ground is not without some prospect of success.

[11] With regard to the Appellant’s other grounds of appeal, based on the material before me, I am not satisfied that they meet the requirements set out in Kellow-Falkiner for the grant of a stay order.

[12] Against that background, and having had particular regard to the approach in Kellow-Falkiner and the fact that the Respondent does not oppose the granting of a stay order, I am willing to make an order in the terms agreed by the parties to stay the operation of the order of Commissioner Deegan of 24 January 2014 until such time as the application to appeal the Commissioner’s decision and order is determined or until further order of the Commission.

DEPUTY PRESIDENT

 1   PR547178

 2   [2014] FWC 644

 3   Print S4216 at paragraph 4. See also Print S2639 at paragraph 5.

 4 (1998) 88 IR 21

 5   Ibid at 29.

 6   [2014] FWC 644 - see paragraph [88]

Printed by authority of the Commonwealth Government Printer

<Price code A, PR548422>