National College of Australia Pty Ltd v Rachel Yates
[2024] FWC 2810
•9 OCTOBER 2024
| [2024] FWC 2810 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
s.606—Stay of decision
National College of Australia Pty Ltd
v
Rachel Yates
(C2024/6998)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 9 OCTOBER 2024 |
Appeal against decision of Deputy President Lake at Brisbane on 16 September 2024 in matter number U2024/7886 – stay application – no arguable case – balance of convenience does not favour stay – stay refused.
Introduction
On 3 October 2024, National College of Australia Pty Ltd (NCA) lodged an appeal against a decision of Deputy President Lake made on 16 September 2024 in matter U2024/7886 to substitute NCA as the employer respondent to Ms Rachel Yates’ unfair dismissal claim in place of Australian College of Teacher Aides and Childcare Pty Ltd (ACTAC) (substitution decision). In its notice of appeal, NCA seeks a stay of the substitution decision pending the hearing and determination of its appeal. This decision is concerned with that stay application. For the reasons which follow, the stay application is refused.
Factual background
On 8 July 2024, Ms Yates filed an unfair dismissal application in which she identified her former employer as ACTAC. She has indicated that she believed ACTAC to have been her employer at the time of her dismissal on 19 June 2024. On 25 July 2024, in response to the application, ACTAC sent correspondence to the Commission denying that it had ever employed Ms Yates and seeking that the application be dismissed on that basis. This position was maintained in a further email from ACTAC on 5 August 2024 and in its Form F3 response filed with the Commission on 22 August 2024. In submissions referred to in that response, ACTAC pointed to material suggesting that the correct employer was NCA. This included the letter of dismissal, which was under the letterhead of NCA. ACTAC refused to attend any conciliation conference concerning Ms Yates’ unfair dismissal application.
On 28 August 2024, Ms Yates applied to amend the identity of the respondent to NCA (amendment application). The amendment application was opposed by ACTAC, which pressed for the dismissal of the application. On 16 September 2024, the Deputy President granted the amendment application and made orders effecting the substitution decision. As part of the substitution decision, the Deputy President directed that NCA file its material in response to Ms Yates’ application by 25 September 2024, and changed the listing of the hearing of the matter from 4 October 2024 to 11 October 2024.
On 25 September 2024, ACTAC filed an appeal against the substitution decision, and sought a stay of the decision. I heard the stay application on 1 October 2024 and, at the conclusion of the hearing, delivered an ex tempore decision refusing the stay.[1] In that decision, I concluded that the appeal had no prospects of success, and the balance of convenience did not favour the grant of a stay, because the effect of the substitution decision was to remove ACTAC from Ms Yates’ unfair dismissal proceedings consistent with ACTAC’s position that it had not been Ms Yates’ employer.
The grounds of appeal in NCA’s current appeal are nearly identical to those cited in ACTAC’s notice of appeal filed on 25 September 2024. They can be summarised as follows:
·The Deputy President denied procedural fairness to NCA by not providing it a chance to contest the amendment application, which has deprived it of the opportunity to engage in conciliation, object to the respondent’s representation and raise jurisdictional objections.
·The Deputy President erred in his application of s 586 of the Fair Work Act 2009 (Cth) to effect the substitution decision, resulting in substantial prejudice to NCA by subjecting it to an unfair dismissal claim in circumstances where it was a separate legal entity with no connection to ACTAC.
·There was insufficient evidence to support the substitution decision.
Consideration
Paragraph [5] of Kellow-Falkiner Motors Pty Ltd v Edghill,[2] a decision of the Australian Industrial Relations Commission, details the principles to be applied by the Commission when determining stay applications:
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.
(citations omitted)
When assessing whether a stay application has the requisite prospects of success, it is to be kept in mind that the Commission is engaging in an assessment of the merits that is preliminary in nature. This is because the Commission will not have had the benefit of hearing the appellants’ arguments in full and usually will not have had the opportunity to properly peruse the materials filed.[3]
As to the merits of the appeal, NCA’s case that it was denied procedural fairness has some technical merit. It appears from the case file that the amendment application was not formally served by Ms Yates on NCA. This provides some support for the claim that NCA was not afforded an opportunity to respond to the amendment application. However, this claim needs to be assessed in the wider factual context. While ACTAC and NCA are not related bodies corporate within the meaning of s 50 of the Corporations Act 2001 (Cth), they nevertheless have a substantial connection with each other. Mr Adam Cox, who appeared for NCA at the stay hearing, also appeared for ACTAC in respect of its stay application. He signed the notice of appeal for both ACTAC and NCA. He is the chief executive officer, sole director and secretary of both entities. The two entities are both registered training organisations and have the same principal place of business.
Importantly, ACTAC nominated Mr Cox as one of its contact persons in respect of Ms Yates’ application in an email sent to the Commission on 12 July 2024. Therefore, when the amendment application was sent to ACTAC, Mr Cox can be presumed to have become aware of it. At the stay hearing, he accepted that he was in fact ‘personally’ aware of the amendment application prior to the substitution decision. The submissions filed by ACTAC opposing the amendment application were presumably authorised by him. Those submissions pointed to the dismissal letter as being under the letterhead of NCA, thus suggesting that NCA was the true employer of Ms Yates. That letter was signed by Mr Cox.
There can be no realistic doubt therefore that Mr Cox knew of the amendment application and understood its import for NCA prior to the substitution decision. At the stay hearing, Mr Cox submitted that ACTAC could not communicate with NCA about the application because of the Australian Privacy Principles established under the Privacy Act 1988 (Cth) and because of a potential conflict of interest, but did not elaborate upon why this was so. In any event, I consider that NCA had constructive knowledge of the amendment application through Mr Cox and did not take any step to oppose it. That vitiates its case that it was denied a reasonable opportunity to respond to the amendment application.
Further, NCA admits that it was Ms Yates’ employer. It is not clear therefore on what basis it might have opposed the amendment application. If there was any denial of procedural fairness, it has not to date identified on what basis it contends that it was denied the possibility of an alternative outcome. There was, on the basis of NCA’s admission, clearly a proper basis for the substitution decision to have been made.
For the above reasons, while I am not prepared to say that the appeal has no prospects of success, it appears to me on the basis of the material currently available that its merits are weak.
I do not consider that the balance of convenience weighs in favour of the grant of a stay, for the following reasons. First, I note that although the substitution decision was made on 16 September 2024, NCA’s appeal was not filed until 3 October 2024, 17 days after the decision was made and in circumstances where NCA was aware that Ms Yates’ unfair dismissal application was listed for hearing on 11 October 2024. The effect of this has been to prevent the appeal being dealt with on an expedited basis that might have preserved the hearing date had the appeal been unsuccessful. Second, and relatedly, the effect of the grant of a stay now would be that the hearing of Ms Yates’ unfair dismissal application could not proceed as listed on 11 October 2024. That would cause her unfair prejudice in circumstances where there is no dispute that NCA is the proper employer respondent to that application. Third, NCA retains the right to appeal, subject to the grant of permission to appeal, any decision that emerges from the 11 October 2024 hearing, including on the grounds of its current appeal. The refusal of a stay would therefore not cause any irrevocable prejudice to NCA. Fourth, if NCA considers that it has not had sufficient time since the substitution decision to prepare its case in response to Ms Yates’ application, it can apply to the Deputy President for an extension of time to do so and for a new hearing date. However, I note that NCA did not file any response to the application on 25 September 2024 as directed by the Deputy President and has not to date sought any extension of time to do so. To the extent that NCA considers that Ms Yates’ application ought to be the subject of a conciliation conference before the hearing, that can readily be arranged on request.
Taking into account the above matters, I am not satisfied that a stay order should issue.
Conclusion
NCA’s application for a stay is dismissed.
PRESIDENT
Appearances:
A Cox for National College of Australia Pty Ltd.
A Santelises for Rachel Yates.
Hearing details:
2024.
Sydney by video link using Microsoft Teams:
8 October.
[1] [2024] FWC 2736.
[2] [2000] AIRC 785, Print S2639.
[3] Supreme Caravans Pty Ltd v Pham[2013] FWC 4766 [9].
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