Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants - [2022] FWC 3199

[2022] FWC 3199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Prateek Patial
v

Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants

(C2022/7586)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 6 DECEMBER 2022

Appeal against decision [2022] FWC 2721 of Commissioner McKenna at Sydney on 28 October 2022 in matter number U2020/11942 – application for a stay order dismissed

Mr Prateek Patial has lodged an appeal, for which permission is required, against the following decisions and orders:

(a) a decision made by Commissioner McKenna in Sydney on 6 August 2021 (reissued on 24 August 2021 after corrections) dismissing Mr Patial’s application for an unfair dismissal remedy (the Substantive Decision);[1]

(b) an order giving effect to the Substantive Decision dated 6 August 2021 (the Substantive Order); [2]

(c) a Full Bench decision made in Sydney on 24 November 2021 declining to grant Mr Patial permission to appeal against the Substantive Decision (Appeal Decision);[3]

(d) a decision made by Commissioner McKenna in Sydney on 18 July 2022 in which she determined that Mr Patial was required to pay the costs of Kailash Lawyers Pty Ltd on an indemnity basis (Costs Decision);[4] and

(e) a decision[5] and corresponding order[6] of Commissioner McKenna in Sydney on 28 October 2022, in which she determined that the amount of costs Mr Patial was required to pay Kailash Lawyers Pty Ltd was the sum of $36,398.05 plus GST (Second Costs Decision), with payment to be made within 21 days.

The Appellant has applied for a stay order pursuant to section 606 of the Fair Work Act 2009 (Cth) (Act). This decision deals only with the application for a stay order.

Section 606 of the Act provides as follows:

“Staying decisions that are appealed or reviewed

(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, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

(2) If a Full Bench is hearing the appeal or conducting the review, an order under subsection (1) in relation to the appeal or review may be made by:

(a) the Full Bench; or

(b) the President; or

(c) a Vice President; or

(d) a Deputy President.

(3) This section does not apply in relation to a decision to make a protected action ballot order.”

In deciding whether to exercise its discretion to grant a stay order under section 606(1) of the Act, the Commission must be satisfied that the appellant has an arguable case with some reasonable prospects of success in the appeal, both in respect of permission 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.

The question to…

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 Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers...

Details

AGLC: Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2022] FWC 3199
Case: [2022] FWC 3199
Decision Date: 6 DECEMBER 2022

CaseChat Overview and Summary

The appeal in Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants was brought before the Fair Work Commission by Mr Prateek Patial, who sought a stay of certain decisions and orders made in his earlier unfair dismissal proceedings against Kailash Lawyers Pty Ltd. The appeal sought to stay the original unfair dismissal dismissal, the order enforcing that dismissal, the refusal to grant permission to appeal the dismissal, and the imposition of costs on Mr Patial in favour of Kailash Lawyers. The Deputy President found that there was no arguable case that any of the appealed decisions contained an error with reasonable prospects of success on appeal.

The legal issues before the Deputy President related to whether Mr Patial had an arguable case of error in law or fact, and whether the balance of convenience favoured a stay of the orders. The Deputy President found that the grounds of appeal were not arguable. The appeal against the dismissal decision and the refusal to grant leave to appeal were both time-barred. The costs orders were also not subject to appeal because the appeal was not lodged within the prescribed time limit and there was no basis for an extension of time. The Deputy President found that the appeal was frivolous and vexatious, made up of baseless accusations of corruption, racism, and bias against the Commissioner and evidence tampering by the respondent. The Deputy President found no arguable case of error in the reasoning of the Commissioner.

The Deputy President concluded that because there was no arguable case of error, it was unnecessary to consider whether the balance of convenience favoured a stay. The application for a stay was dismissed. The order requiring Mr Patial to pay costs to Kailash Lawyers in the amount of $36,398.05 plus GST remained in force.

Orders