Pepperleaf.com.au Pty Ltd v Simon Kahil & John Cincotta - [2025] FWC 1263

[2025] FWC 1263

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Pepperleaf.com.au Pty Ltd
v

Simon Kahil & John Cincotta

(C2025/3080)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 6 MAY 2025

Appeal against decision of Commissioner Yilmaz at Melbourne on 28 March 2025 on transcript in matter numbers U2025/795 and U2025/797 – application for a stay order – stay order refused.

This decision concerns an application for a stay order by Pepperleaf.com.au Pty Ltd pursuant to s 606 of the Fair Work Act 2009 (Cth) (Act). It is made in relation to an appeal against a decision made on transcript by Commissioner Yilmaz on 28 March 2025. The Commissioner’s decision was made in the context of dealing with the unfair dismissal applications made by each of the respondents to the appeal, Mr Simon Kahil and Mr John Cincotta, against the appellant.

In the decision, the Commissioner considered that the respondents’ unfair dismissal applications were filed prematurely and, in the circumstances of the matter, was satisfied that this constituted an irregularity capable of waiver under s 586(b) of the Act. Accordingly, the Commissioner exercised her discretion to waive the irregularity in the form or manner in which each of the applications was made.

The appellant appeals the decision and seeks a stay over the whole of the decision. The respondents oppose the stay but did not otherwise seek to be heard at the stay hearing.

For the reasons that follow, the application for a stay order is refused.

Relevant principles

Section 606 of the Act gives the Commission the discretionary power to stay the operation of the whole or part of a decision that is the subject of an appeal. The case of Edghill v Kellow-Falkiner Motors Pty Ltd,[1] provided the following formulation for determining stay applications:[2]

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.

Accordingly, both ‘elements’ are necessary conditions to the grant of a stay.

Consideration

At the stay hearing, the appellant submitted that it is seeking a stay of the 22 May 2025 merits hearing of the respondents’ unfair dismissal applications before the Commissioner. I do not consider that s 606(1) of the Act empowers the Commission to issue a stay order in these terms. The setting of a hearing date by the issuance of a Notice of Listing is not an operative decision capable of being stayed under s 606(1).[3] Accordingly, I do not consider that a stay order to suspend the timetabling of the procedural steps until the determination of the appeal, as sought by the appellant, can be made.

To the extent that the appellant…

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.

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Details

Case: [2025] FWC 1263
Decision Date: 6 MAY 2025

CaseChat Overview and Summary

The decision under review involves Pepperleaf.com.au Pty Ltd, which appeals a decision made by Commissioner Yilmaz on 28 March 2025, concerning unfair dismissal applications by Simon Kahil and John Cincotta against Pepperleaf.com.au Pty Ltd. The appeal, brought under section 604 of the Fair Work Act 2009, pertains to the Commissioner's refusal to grant a stay order as sought by Pepperleaf.com.au Pty Ltd. The appeal was heard by Deputy President Millhouse in Melbourne on 6 May 2025. The legal issues before the court centered on whether the appellant had presented an arguable case with a reasonable prospect of success regarding both the leave to appeal and the substantive merits of the appeal, as well as whether the balance of convenience favoured a stay. The appellant argued that the Commissioner's decision to waive the irregularity in the unfair dismissal applications constituted procedural unfairness and misapplied relevant case law.

The court examined the appellant's six grounds for appeal, which included the contention that the Commissioner failed to provide procedural fairness and misapplied the authority in Mihajlovic v Lifeline Macarthur. The court concluded that the appellant had not demonstrated a sufficient arguable case or reasonable prospect of success on the appeal grounds. The appellant's concerns about procedural fairness and the Commissioner's exercise of discretion were not compelling enough to warrant a stay. The Commissioner had considered relevant statutory requirements and applied the relevant legal principles appropriately. The court also noted that the balance of convenience did not favour a stay, given that the appeal for permission to proceed would be determined promptly, and any further delay could be addressed through an application for an adjournment.

The decision concludes that the application for a stay order is dismissed. The court determined that the appellant did not meet the criteria for a stay as outlined in section 606 of the Fair Work Act. The court emphasised the general discouragement of appeals against interlocutory decisions, which typically delay proceedings and increase costs. The court further observed that the balance of convenience did not support the grant of a stay, as the appeal for permission to proceed would be resolved quickly, and any further delay could be managed through an adjournment application. Consequently, the appeal for a stay order is dismissed, and the proceedings will continue as scheduled.

Orders