Lipa Pharmaceuticals Ltd T/A Lipa Pharmaceuticals v Troy de Haan

[2014] FWC 548

[2014] FWC 548

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Lipa Pharmaceuticals Ltd T/A Lipa Pharmaceuticals
v
Troy de Haan
(C2014/2589)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 22 JANUARY 2014

Appeal against decision [2013] FWC 9928 and order PR546165 of Deputy President Booth at Sydney on 20 December 2013 in matter number U2013/10567.

[1] This is an application by Lipa Pharmaceuticals Ltd t/a Lipa Pharmaceuticals to stay a decision of Deputy President Booth [2013] FWC 9928 in U2013/10567 handed down on 20 December 2013. The Deputy President also issued an order (PR546165) giving effect to that decision.

[2] The effect of the Deputy President’s decision was to reinstate Mr Troy de Haan to the position he was employed in immediately prior to his dismissal from 23 December 2013. The Deputy President ordered the Appellant, Lipa Pharmaceuticals to provide Mr de Haan, the Respondent with full continuity of employment for the period from the date of his dismissal to the date of reinstatement.

[3] The Appellant seeks to stay these two points of the Deputy President’s order. It proposes that the balance of what the Respondent would have earned, apart from the dismissal, from the date of the stay order, if it is in excess of his current earnings, be paid to the Respondent. This would be consistent with points 3 and 4 of the Deputy President’s order.

[4] The appeal is listed for hearing before a Full Bench of the Fair Work Commission in Sydney on 19 March 2014.

[5] Section 606(1) of the Fair Work Act 2009 (the Act) provides that:

“If, under section 604 and 605, FWC hears an appeal from, or conducts a review of, a decision, FWC may (except as provided in subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that FWC considers appropriate, until a decision in relation to the appeal or review is made or FWC makes a further order.”

[6] Before a stay order is granted the Commission is required to be satisfied that an arguable case exists and that the balance of convenience favours the granting of a stay. The conventional test for granting a stay order was considered by Vice President Ross (as he then was) in Kellow-Faulkner Motors Pty Ltd v Edge Hill. 1 That approach was subsequently confirmed by a Full Bench.2

[7] The application for a stay order came on for hearing before me on 16 January 2014. The Respondent did not appear. Attempts were made to contact him and the matter was relisted for 21 January.

[8] The Respondent appeared by telephone on 21 January and did not oppose the say being granted.

[9] It was put on behalf of the Appellant that the Deputy President erred in fact and law in her decision. In particular, it is submitted that she misapplied the tests concerning whether there was a genuine redundancy.

[10] I find that there is an arguable case which should be determined by the Full Bench.

[11] Given the Respondent’s consent to the stay, I also find that the balance of convenience supports a stay being granted on the basis proposed by the Appellant and consented to by the Respondent.

[12] An order giving effect to this decision (PR547063) accompanies this decision.

DEPUTY PRESIDENT

Appearances:

D. Mahendra of counsel, J. Murphy and E. Baxter for the Appellant;

T. de Haan, respondent by telephone.

Hearing details:

2014

Sydney:

January 16, 21.

 1   Print S2639

 2   Print S4216

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