Pringles Ag-Plus Pty Ltd t/a Emmetts v William Daws

[2024] FWC 3545

[2024] FWC 3545

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Pringles Ag-Plus Pty Ltd t/a Emmetts
v

William Daws

(C2024/9149)

DEPUTY PRESIDENT COLMAN MELBOURNE, 19 DECEMBER 2024

Stay application under s 606 – no operative decision to stay – no arguable case of error – no right of witnesses to ‘disconnect’ from FWC proceedings – application dismissed

1. Earlier today, for reasons summarised briefly on transcript, I dismissed a stay application made under s 606 of the Fair Work Act 2009 (the Act) by Pringles Ag-Plus Pty Ltd (Emmetts). The stay was sought in connection with an appeal lodged by Emmetts against a decision of Commissioner Platt on 17 December 2024 to refuse its application to vary procedural directions. I advised the parties that I would publish my reasons as soon as possible, and now do so.

1. Emmetts is a respondent to an unfair dismissal application made by William Daws. On 2 December 2024, the Commissioner issued directions that required Mr Daws to file and serve an outline of submissions, witness statements, and any documents on which he sought to rely, by 12 December 2024. Emmetts was required to file its materials by 19 December 2024. The application was listed for hearing on 7 January 2024. At the time the directions were issued, Emmetts was represented by the Motor Trades Association (MTA). On 4 December 2024, Emmetts, through the MTA, asked the Commissioner to adjourn the hearing of the application until 15 January 2024 because of the unavailability of the relevant representative, ‘issues’ with the availability of some of Emmetts’ witnesses, and the fact that the company was considering briefing counsel. The Commissioner replied to Emmetts on 4 December 2024, refusing the request for a later hearing date. As the Commissioner later explained, he had limited availability in January. Later the same day, Emmetts advised the Commissioner that it would be in a position to follow the directions, but that Elyse Otto, a human resources manager, would not be able to attend the hearing due to pre-arranged leave, but that she could submit a statement.

1. Mr Daws filed his materials on 12 December 2024, as required by the directions. The same day, Emmetts’ new representative, Snow Legal, filed a F53 to advise the Commission that it now acted for the company. On 16 December 2024, Snow Legal wrote to the Commissioner asking that the directions of 2 December 2024 be varied to allow Emmetts to file its materials on 24 January 2025. It also asked that the hearing be relisted for two days on dates after 17 February 2025.

1. The grounds presented to the Commissioner for the proposed variations to the directions and listing were that Mr Daws had filed a witness statement that ran to over 270 pages; that Emmetts would need to call some 6 witnesses; that it would be unable to prepare witness statements for its witnesses prior to 19 December 2024; that it would be unable to call certain witnesses on the scheduled hearing date of 7 January 2025; that Emmetts was currently in its peak business period and that the witnesses were very busy and would soon need to take leave; that Emmetts was conscious of its obligations to allow employees to take leave; and  that employee witnesses have a right not to monitor or respond to their employer’s communications, especially when on leave, as they have a right to disconnect.

1. The Commissioner was not persuaded by these reasons. On 17 December 2024, he advised Emmetts that the request was denied. On 18 December 2024, the Commissioner issued reasons for his decision ([2024] FWC 3525) and stated the following:

‘[15]      The Application was refused on 17 December 2024 on the basis that - the Respondent has been on notice of the requirement to file its material since 2 December 2024 (and the proposed Hearing dates since 29 November 2024), the Respondent’s (then) representative agreed to the Directions on 4 December 2024, the Directions were structured so as to avoid the need for the parties to prepare statements over the Christmas/New Year break, the Applicant had already filed his material and thus the Respondent would be advantaged by the additional month to prepare its material, the Applicant is seeking reinstatement which supports the prompt conduct of a Hearing, and my obligations under s.577 of the Act.’

1. Emmetts appeals from the Commissioner’s decision not to vary the directions and listing and asks that the decision be stayed under s 606 of the Act. The notice of appeal asked the Commission to stay the decision that refused to vary the timetable. The proposed draft order states that ‘the timetable in U2024/13215 is stayed’ pending the outcome of the appeal.

1. Before exercising the discretion to grant a stay under s 606 of the Act, the Commission must be satisfied that an appellant has an arguable case, with some reasonable prospect of success both in respect of permission to appeal and the substantive merits, and that the balance of convenience favours the decision under appeal being stayed until the appeal is determined.

1. There is a threshold impediment to the stay application in this case. A stay is an order that suspends the operative effect of the decision that is the subject of an appeal under s 604 of the Act. The decision in this case was a decision not to vary the directions of 2 December 2024. A decision of a member not to do something cannot be stayed, because the decision has no operative effect. Such a decision does not require anyone to do anything. It leaves the status quo in place. Emmetts contended that the decision did have operative effect because it required compliance with the original directions. I reject this. It is the directions of 2 December 2024 that created this obligation. The refusal of the variation request leaves this obligation unaltered. What Emmetts really seeks by its stay application in this case is a decision to vary or revoke the Commissioner’s original decision on 2 December 2024 to issue directions that set a particular timetable. I have no power under s 606 to do this. It is only a decision under appeal that can be stayed, and the decision of 2 December 2024 is not the subject of the appeal. If a Full Bench were to uphold Emmetts’ appeal – a highly unlikely prospect in my opinion – it would have power under s 607 to vary the Commissioner’s decision of 17 December 2024 or to make a further decision in relation to the matter that is the subject of the appeal, such as a decision setting new directions. But a member hearing a stay application under s 606 has no such power. Emmetts contended that s 606 allows the Commission to stay a decision on ‘any terms and conditions that the FWC considers appropriate’ and that this would allow the Commission now to ‘stay’ the current timetable. I disagree. These words do not permit the Commission to make any order of its choosing. Rather, they allow conditions to be attached to a stay order. I had no power to make the stay order that was sought by Emmetts. For these reasons, the application for a stay was dismissed.

1. In any event, I was not persuaded that the appeal presented an arguable case with some reasonable prospect of success, either in relation to permission to appeal or the merits.

1. First, it is in the public interest to discourage appeals from procedural decisions (see for example Comsec Trading Ltd and Other v Finance Sector Union of Australia PR945431 at [10] to [12]). Allowing such appeals may unreasonably prolong proceedings and favour well-resourced parties while disadvantaging other parties. More generally, the proper administration of justice would be compromised by a liberal approach to permitting appeals from procedural decisions and result in the de facto transfer of discretion from single members to the appellate instance. This is particularly undesirable in relation to decisions that do no more than determine schedules for the filing of materials and set matters down for hearing. Appeals against procedural decisions are also apt to be overtaken by the fluidity of the litigation and the tide of events. Procedural decisions may also be altered in light of further information and changed circumstances. A further consideration weighing against interference with procedural decisions at first instance is that a party aggrieved by a procedural decision might ultimately be successful in the substantive matter despite that decision, in which case an appeal from the procedural decision would have been a waste of time. For these and other reasons, permission to appeal from procedural decisions is not usually granted (see Kennedy v Qantas Ground Services Pty Ltd[2019] FWCFB 2151 at [20]). In the present case, the possibility that a Full Bench might grant permission to appeal appears particularly remote, as the application before the Commissioner was an unfair dismissal application: his decision of 17 December 2024, although procedural, was nevertheless one made under Part 3-2 of the Act, with the consequence that the Full Bench must not grant permission to appeal unless it considers that it is in the public interest to do so (see s 400 and Kennedy v Qantas Ground Services Pty Ltd[2018] FWCFB 4552 at [9] to [11]). Emmetts contends that its appeal is in the public interest, however I consider this to be unarguable, taking into account the matters referred to above and also what follows below in respect of the merits. Of course, in some cases, it may be appropriate to grant permission to appeal from a procedural decision. However, I find it difficult to see how a Full Bench would conclude that the present matter is such a case.

1. As to the merits, I do not consider the grounds of appeal to present an arguable case with some reasonable prospect of success. The first ground asserts that the Commissioner’s decision is unreasonable in the sense referred to in the High Court’s decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li). The second ground contends that the decision will result in a failure to accord procedural fairness. The third states that the decision results in practical injustice. The fourth and fifth grounds state that these errors are jurisdictional and engage the public interest. In my view, the contention that the Commissioner’s decision is legally unreasonable is not available; the high hurdle confronting such a submission is simply not attainable in this matter. There is no indication that the Commissioner’s decision was arbitrary. It did not lack an evident and intelligible justification. Nor is it seriously arguable that the decision manifests a practical injustice or amounts to a denial of procedural fairness. The Commissioner considered Emmetts’ requests for variations to the directions and declined them for good reasons. The Commissioner was not required to work to the timetable of the appellant’s new lawyers, which I note have not yet been granted permission to appear under s 596. The Commissioner’s timetable was tighter than Emmetts’ representatives wished. But it was plainly not manifestly unreasonable. The 270-page statement filed by Mr Daws is in fact a 5-page statement with numerous attachments, including materials relating to another application brought by Mr Daws, whereas Emmetts’ case is simply that Mr Daws committed misconduct and that the dismissal was fair. It is by no means clear that Emmetts needs to engage with the entirety of the statement. Further, as the Commissioner rightly said, Emmetts had previously indicated that it could comply with the directions of 2 December 2024. Finally, it was and remains open to Emmetts to seek modifications to the timetable of a more modest kind than the wholesale rescheduling that was previously asked for, such as seeking leave to file outlines or summaries of evidence initially, or a short extension to its deadline.

1. The timeframes set by the original directions were easily within the bounds of the reasonable exercise of the Commissioner’s discretion in respect of the programming of such a matter. I do not consider there to be an arguable case, with some reasonable prospect of success, that the Commissioner’s discretionary response to the request to vary the directions miscarried in any way. That the applicant might have filed a lengthy statement and that Emmetts proposes to call six witnesses simply meant that greater effort might be required in order to comply with the directions. The Commissioner considered the submissions that were made to him about the proposed variations. He found them unpersuasive. So do I.

1. The Commissioner had a broad discretion to decide upon appropriate scheduling. Such decisions can require a member to take into account a multiplicity of factors, including the interests of the parties to the proceeding, the interests of parties in other matters who are waiting to have their matters heard, the member’s other listings and availability, and the Commission’s statutory obligations, including the requirement of timeliness (see s 577). The Commission will have regard to the parties’ views as to appropriate directions, as the Commissioner did in this case. But it is categorically not the case that the Commission must dance to the parties’ tune in scheduling matters, even where the parties make a joint request, as they did in this case.

1. As to the contention that Emmetts’ workers have a right to disconnect, I recognise that in some cases this right may mean that it is not possible to obtain a written statement from an employee by a particular date. I would observe however that this new statutory right pertains to employees’ employment. There is no right to disconnect from a proceeding in the Commission. If it is appropriate, the Commission will order the attendance of relevant persons to give evidence, irrespective of whether they are employees, who have a right to disconnect from work, or other persons, who have no such right.

1. For the above reasons, the application for a stay was refused.

DEPUTY PRESIDENT

Appearances:

P. Healey of counsel for Pringles Ag-Plus Pty Ltd
A. Wright for Mr Daws

Hearing details:

2024
Melbourne and Adelaide (by Microsoft Teams)
19 December

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