Polymaster Pty Ltd v Mr Martin Gunn - [2024] FWC 2249

[2024] FWC 2249

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Polymaster Pty Ltd
v

Mr Martin Gunn

(C2024/5590)

VICE PRESIDENT GIBIAN

SYDNEY, 21 AUGUST 2024

Appeal against decision [2024] FWC 1978 and order PR777804 of Deputy President Slevin at Sydney on 26 July 2024 in matter number U2024/5274 – stay application – arguable case on appeal – balance of convenience – appeal only in relation to compensation order – ability of respondent to repay if appeal successful – no basis for doubting that the respondent will repay – stay refused.

Introduction

Polymaster Pty Ltd (Polymaster or the appellant) has filed a notice of appeal in relation to a decision of Deputy President Slevin of the Fair Work Commission (the Commission) handed down on 26 July 2024. In the notice of appeal, Polymaster seeks a stay of the decision and the order for compensation made by the Deputy President. This decision concerns the stay application. A hearing was conducted in relation to the stay application on 21 August 2024.

The decision concerned an application under s 394 of the Fair Work Act 2009 (Cth) (the Act) by Mr Martin Gunn (Mr Gunn or the respondent) seeking an unfair dismissal remedy. The Deputy President found that that Mr Gunn had been unfairly dismissed.[1] The Deputy President noted that Mr Gunn did not seek reinstatement and indicated he was satisfied that the relationship had broken down and that reinstatement was inappropriate.[2]

The Deputy President indicated he was satisfied that it was appropriate to make an order for payment of compensation in lieu of reinstatement.[3] The Deputy President then referred to the factors set out in s 392(2) of the Act, noting that there is a dispute, on appeal, as to whether the Deputy President properly took those matters into account.[4] Ultimately, the Deputy President concluded that Mr Gunn should receive compensation of 12 weeks’ pay in lieu of reinstatement.[5] The Deputy President made an order that Polymaster pay compensation in the amount of $27,600 less applicable taxation.

By notice of appeal filed on 14 August 2024, Polymaster seeks permission to appeal and to appeal from the decision of the Deputy President. The grounds of appeal relate solely to the order for the payment of compensation. Polymaster does not seek permission to appeal with respect to the Deputy President’s finding that Mr Gunn was unfairly dismissed. As has been noted, Polymaster seeks a stay of the order of the Deputy President pending hearing and determination of the appeal.

Consideration of Stay

The power to grant a stay pending the hearing and determination of an appeal lodged under s 604 is contained in s 606(1) of the Act, which provides:

(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed,…

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: [2024] FWC 2249
Decision Date: 21 AUGUST 2024

CaseChat Overview and Summary

Polymaster Pty Ltd has filed an appeal against a decision made by Deputy President Slevin of the Fair Work Commission (FWC) on 26 July 2024. The appeal concerns a decision to award Mr Martin Gunn compensation of 12 weeks’ pay in lieu of reinstatement for an unfair dismissal. Polymaster has sought a stay of the decision pending the appeal, which was heard on 21 August 2024. The central issue before the Vice President was whether the appeal had an arguable case and whether the balance of convenience favoured a stay.

The Vice President found that Polymaster had presented an arguable case for appeal. The grounds of appeal focused on the Deputy President's evaluation of the factors outlined in s 392(2) of the Fair Work Act 2009 and the correct application of the Sprigg v Paul’s Licenced Festival Supermarket formula. The Vice President accepted that there was an arguable case that the Deputy President had erred in the consideration of these factors, which would need to be fully addressed during the appeal. However, the Vice President turned to the balance of convenience to determine whether the stay should be granted.

In assessing the balance of convenience, the Vice President considered that the appeal solely challenged the amount of compensation and did not contest the finding of unfair dismissal. Polymaster argued that if the appeal was unsuccessful, it would need to recover the excess amount paid to Mr Gunn. However, the Vice President found no evidence suggesting that Mr Gunn would be unable or unwilling to repay any part of the compensation if the appeal was successful. Polymaster had not demonstrated any financial hardship that would result from the payment of compensation, nor had it provided any evidence that Mr Gunn would refuse to repay the compensation if the appeal was unsuccessful. Given these circumstances, the Vice President concluded that the balance of convenience did not favour a stay.

The Vice President refused the application for a stay, emphasising that the appeal only sought to reduce the amount of compensation ordered, not to contest the Deputy President's finding of unfair dismissal. The Vice President noted that even if the appeal succeeded, the amount of compensation ordered was unlikely to be reduced to zero, meaning Mr Gunn would still receive some compensation. The refusal of the stay meant that Mr Gunn would continue to receive the compensation ordered by the Deputy President.

Orders