Mr Christopher Ross v Australian Postal Corporation - [2024] FWC 802

[2024] FWC 802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Mr Christopher Ross
v

Australian Postal Corporation

(C2024/1796)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 28 MARCH 2024

Appeal against procedural decisions of Commissioner Harper-Greenwell on 13 March 2024, 18 March 2024 and 21 March 2024 in matter C2024/962 – stay application – application refused.

This decision concerns an application for a stay order by Mr Christopher Ross pursuant to s 606 of the Fair Work Act 2009 (Cth) (Act). It is made in relation to an appeal against procedural decisions of Commissioner Harper-Greenwell which were made on 13 March, 18 March and 21 March 2024. The respondent to the appeal is Australian Postal Corporation trading as Australia Post.

The Commissioner’s decisions were made in the context of dealing with Mr Ross’ general protections application, which Mr Ross filed in the Commission on 16 February 2024.

Australia Post advised that it does not object to the proposed grant of a stay while the application for permission to appeal is determined. Nevertheless, it remains for the Commission to decide whether to exercise its discretion to grant a stay. In the circumstances, I advised the parties of my view that the stay application could be determined on the papers[1] and provided a facility for the filing of written submissions.

Procedural history

On 27 February 2024, Australia Post filed a Form F8A response to Mr Ross’ general protections application. Australia Post objected to the application on the basis that it was not filed within 21 days after Mr Ross’ dismissal took effect on 8 January 2024.

On 6 March 2024, the Commissioner listed the application for Mention/Directions Hearing – jurisdiction only (extension of time) to proceed on 13 March 2024. Despite confirming his attendance at the Mention/Directions Hearing by email dated 6 March 2024, on 8 March 2024 Mr Ross made an application “for Stay of Proceeding” pursuant to s 589 of the Act.

On 12 March 2024, the Commissioner’s chambers emailed the parties confirming that the Mention/Directions Hearing remained listed and set out the manner in which an adjournment request could be made. The email advised, amongst other things, of the requirement for such applications to be made with supporting reasons and documentation for the Commissioner to consider.

On 13 March 2024, Mr Ross sent an email to the Commissioner’s chambers in which he sought a two-week adjournment of the Mention/Directions Hearing to allow sufficient time for him to “submit a proper Leave or Stay application.” Mr Ross sent a further email attaching submissions in support of his request, as well as a copy of an originating application dated 10 March 2024 in the Supreme Court of Victoria, which identifies Mr Ross as the plaintiff, and a summons for the responding parties to appear. Australia Post is not a party to those proceedings.

It appears that the Mention/Directions Hearing before the Commissioner proceeded as listed on 13 March 2024. Shortly thereafter, the Commissioner’s chambers sent an email to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mr Christopher Ross v Australian Postal Corporation

Details

AGLC: Mr Christopher Ross v Australian Postal Corporation [2024] FWC 802
Case: [2024] FWC 802
Decision Date: 28 MARCH 2024

CaseChat Overview and Summary

The case involves Mr Christopher Ross who filed a general protections application against Australian Postal Corporation trading as Australia Post with the Fair Work Commission. Mr Ross’ application was dismissed by the Commissioner on the basis of late filing, and he sought to appeal the procedural decisions made by the Commissioner. Mr Ross subsequently applied for a stay order of the proceedings pending the determination of his appeal. The Deputy President of the Fair Work Commission, Millhouse, was tasked with deciding on the application for a stay order.

The central legal issue was whether the Fair Work Commission had the discretion to grant a stay order of the proceedings before the Commissioner pending the determination of the appeal. Mr Ross contended that the Commissioner’s decisions were affected by errors of law and that the evidence supported a different result. The Deputy President had to assess whether Mr Ross had an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal. Additionally, the balance of convenience had to be considered to determine whether the stay order should be granted.

The Deputy President concluded that the stay orders sought by Mr Ross should not be made. The issuance of the Directions and the setting of a hearing date were considered administrative matters rather than operative decisions that could be stayed. Furthermore, the Deputy President was not persuaded that Mr Ross had an arguable case with some reasonable prospects of success in both permission to appeal and the substantive merits of the appeal. The decisions challenged by Mr Ross were in the nature of procedural rulings, and the public interest was to discourage appeals from such preliminary or procedural rulings. The Deputy President also noted that the balance of convenience did not favour a stay order, as it would delay the determination of Mr Ross’ application for an extension of time. The Deputy President was of the view that it would be more efficient for Mr Ross to challenge the Commissioner’s procedural rulings if he were to be unsuccessful in obtaining an extension of time.

The application for a stay order in Mr Ross’ Notice of Appeal is refused. The proceedings before the Commissioner will proceed as scheduled, and Mr Ross’ appeal will be determined by the Full Bench of the Fair Work Commission.

Orders