Mint Kitchens Pty Ltd v Chloe Drew
[2023] FWC 30
•5 JANUARY 2023
| [2023] FWC 30 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Mint Kitchens Pty Ltd
v
Chloe Drew
(C2022/8475)
| ACTING PRESIDENT HATCHER | SYDNEY, 5 JANUARY 2023 |
Appeal against decision [2022] FWC 3232 of Deputy President Dean at Canberra on 15 December 2022 in matter number U2022/9527 – stay application – stay order refused.
Mint Kitchens Pty Ltd (appellant) has lodged an appeal, for which permission is required, against a decision[1] and order[2] made by Deputy President Dean on 15 December 2022. The decision concerned whether an unfair dismissal application lodged in the Commission’s Melbourne registry by Ms Chloe Drew on 26 September 2022 was made outside the 21-day time limit prescribed by s 394(2)(a) of the Fair Work Act 2009 (Cth) (FW Act), in circumstances where Ms Drew contended in her application that she had been dismissed on 2 September 2022. The Deputy President determined that the application was filed in time, having regard to the operation of s 36 of the Acts Interpretation Act 1901 (Cth) (AI Act) as it was at 25 June 2009, which applies to the FW Act by virtue of s 40A of the FW Act. The Deputy President reasoned that, although 21 days after the date of the termination of employment was 23 September 2022, this date was a public holiday in Victoria, and the next working day was 26 September 2022. Notwithstanding that the appellant is located in the Australian Capital Territory and Ms Drew lives in New South Wales, the Deputy President considered that the Melbourne registry was a place in which the filing of Ms Drew’s application might be done and it was reasonable for it to be done there taking into account that Ms Drew had engaged Melbourne-based lawyers. On this basis the Deputy President concluded that, by operation of s 36 of the AI Act, Ms Drew had filed her application within the time period prescribed by s 394(2)(a) of the FW Act. The Deputy President’s order was as follows:
A.Further to my decision issued on 15 December 2022 [2022] FWC 3232, I order that the Respondent’s jurisdictional objection on the ground that the application was filed out of time is dismissed.
B. This matter will now be referred for conciliation.
In its notice of appeal, the appellant contends that the Deputy President’s decision was in error, including because:
·the Deputy President erred by determining that the matter had a connection with Victoria and in doing so, that there was no need for Ms Drew’s representatives to check whether the matter had a connection with another state or territory where the parties were actually located and registries were open in order to lodge the application within time; and
·the Deputy President erred in interpreting the AI Act by finding that the phrase “may be done” in s 36(2) of the Acts Interpretation Act relates to “place” and not to the “thing” to be done.
The appellant contends in its notice of appeal that permission to appeal should be granted in the public interest, including because the appeal raises an issue of general importance.
In its notice of appeal, the appellant seeks a stay of paragraph (B) of the Deputy President’s order pending the hearing and determination of its appeal. This decision deals with the appellant’s stay application.
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 Kellow-Falkiner Motors Pty Ltd v Edghill.[3] 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.”
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 of hearing the appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials.[4]
I am satisfied that the appellant has reasonable prospects of obtaining permission to appeal, since the appeal appears to raise an issue of novelty and wider significance. I am also prepared to accept, on the basis of the limited material before me, that the merits of the appeal are reasonably arguable.
In relation to the balance of convenience, the appellant submits that this favours the grant of a stay for the following reasons:
(1)Should the appeal be successful, it will follow that the application will fall away as it will be out of time and therefore, the Commission will have no jurisdiction to determine Ms Drew’s application. It would be prejudicial to the appellant’s position (and cause costs to be unreasonably incurred) to require a conciliation to be held in circumstances where — subject to the Full Bench’s disposal of the appeal — a conciliation may not be required at all.
(2)It is also relevant that the appellant maintains a further jurisdictional objection to the application, namely that Ms Drew resigned from her employment. While this issue is yet to be dealt with by the Commission, it is relevant that further considerable hurdles remain to Ms Drew’s case which is a further reason weighing heavily in favour of finding that no prejudice will flow to Ms Drew by virtue of staying the conciliation order (and in turn, that significant prejudice will flow to the appellant in having to prepare to defend an unfair dismissal application that the Commission arguably holds no jurisdiction to deal with).
(3)No prejudice will reasonably flow to Ms Drew’s position by virtue of any slight further delay that would follow an adjournment of the current conciliation date, given the matter has already been on foot for some months since it was filed on 26 September 2022, and also that Ms Drew is only seeking monetary compensation, not reinstatement.
I am not persuaded by these submissions that the balance of convenience weighs in favour of the grant of a stay. The only effect of the stay would be to prevent a conciliation conference (currently scheduled to take place at 9.15 am on 11 January 2023) from proceeding pending the hearing and determination of the appeal. Ms Drew, who has the benefit of a finding in her favour that her unfair dismissal application was filed in time, would be prejudiced by not having early access to the conciliation mechanism with the prospect that this might allow her to settle her matter and avoid the need for the effort, expense and stress required by further litigation (including the appeal hearing). Against this, I do not consider that any irremediable or significant prejudice would be caused by the refusal of the stay sought by the appellant. No legal consequence can flow from the conduct of the conciliation other than with the appellant’s agreement. The appeal is not in any way frustrated or rendered inutile if the conciliation proceeds and the matter does not settle. It is a matter for the appellant as to whether it obtains legal representation for the purpose of the conciliation but, if it does, there is no reason why this should involve the incurrence of legal costs of any significance. No other prejudice is identified by the appellant in its submissions.
The appellant’s submission that, if its appeal succeeds, Ms Drew’s application will “fall away” and the Commission will have no jurisdiction to determine the application is not necessarily correct. If the appeal succeeds, there will then need to be a further hearing as to whether Ms Drew should be granted an extension of time pursuant to s 394(3). The circumstances attending the filing of Ms Drew’s application described in the decision under appeal would, in my view, render it at least reasonably arguable that the requisite exceptional circumstances exist to justify the grant of an extension of time. In circumstances therefore where the parties face the definite prospect of the effort and expense of an appeal hearing and, at the very least, an extension of time hearing after this should the appeal succeed, with a reasonable prospect of a requirement for a further hearing beyond this concerning the other jurisdictional objection and the merits of Ms Drew’s application, it seems to me that the balance of convenience positively favours the refusal of the stay so that the parties may turn their minds at the earliest opportunity to a settlement of the matter at a conciliation conference conducted by the Commission.
For the above reasons, the stay application is refused.
ACTING PRESIDENT
Written submissions:
Appellant: 23 December 2022.
[1] [2022] FWC 3232
[2] PR748693
[3] [2000] AIRC 785, Print S2639
[4] Supreme Caravans Pty Ltd v Pham [2013] FWC 4766 at [9]
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