Reidwell Investments BT Pty. Ltd. T/A Coco Cubano Blacktown v Ms Helen Lyberopoulos

[2015] FWC 6008

[2015] FWC 6008

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Reidwell Investments BT Pty. Ltd. T/A Coco Cubano Blacktown
v
Ms Helen Lyberopoulos
(C2015/5017)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 2 SEPTEMBER 2015

Appeal against decision [2015] FWC 4256 of Senior Deputy President Drake at Sydney on 10 July 2015 in matter number U2014/8864; stay application; stay refused.

[1] On 26 August 2015 I refused a stay application made by Reidwell Investments BT Pty Ltd (Appellant) in relation to a decision and order of Senior Deputy President Drake made on 10 July 2015. 1 These are my reasons for refusing the stay application.

[2] Ms Helen Lyberopoulos (Respondent) was employed by the Appellant until her employment was summarily terminated on 3 August 2014. The Respondent subsequently made application for an unfair dismissal remedy pursuant to s.394(1) of the Fair Work Act 2009 (Act). That application was heard by Senior Deputy President Drake who on 10 July 2015 determined that that the Respondent’s dismissal was unfair. 2

[3] The Senior Deputy President also determined that reinstatement of the Respondent was not appropriate but that an order for compensation was appropriate in all the circumstances. 3 The Senior Deputy President determined that the appropriate amount of compensation was $36,267 and ordered that this amount be paid to the Respondent within 14 days.4

[4] On 31 July 2015, pursuant to s.604 of the Act, the Appellant lodged a notice of appeal in which it sought, inter-alia, a stay of the order to make a compensation payment. The stay application was listed for 11 August 2015 however, at the request of the Appellant, the stay application hearing was rescheduled to 26 August 2015.

[5] The Appellant sets out a number of grounds of appeal in which it says that the Senior Deputy President made a significant error of fact by failing to take into account material considerations. The Appellant maintains that there was no evidence to support the Senior Deputy President’s finding that an order of compensation would have no effect on the viability of the Appellant’s enterprise. It says that there was no evidence to support the Senior Deputy President’s finding that but for the termination of the Respondent’s employment, the Respondent would have continued to earn her gross weekly wage with the Appellant for a period of 12 months. The Appellant also says that there was insufficient evidence to support the Senior Deputy President’s finding that the Respondent had made significant efforts to find other employment. The Appellant also says that the decision is unreasonable and plainly unjust because the Senior Deputy President did not provide any opportunity for either party to make submissions in relation to the matters set out in s.392(2) of the Act.

[6] As to permission to appeal, the Respondent says that it is in the public interest that permission should be granted because the Senior Deputy President failed to accord the Respondent procedural fairness in her consideration of the remedy to be awarded and that this aspect of the decision manifests an injustice which attracts the public interest.

[7] These are not matters which need not be determined in this stay application.  They will be determined by a Full Bench which deals with this matter at a later stage.  The question for determination is whether the order made by the Senior Deputy President on 10 July 2015 should be stayed. 

[8] A person aggrieved by a decision made by a single member of the Commission may only appeal the decision pursuant to permission of the Commission.

[9] Unlike appeals against decisions under other provisions of the Act, permission to appeal a decision in relation to an unfair dismissal remedy will only be granted if the Commission considers that it is in the public interest to do so.  If an error of fact is said to have been made by the first instance decision-maker in relation to an unfair dismissal remedy application, an appeal will only be available if the error identified is a significant error of fact.  More generally, other errors said to have been made by the first instance decision-maker must be of the kind identified by the High Court in House v R 5.

[10] The principles that are to be applied in considering whether to grant a stay need to be applied in the context of the statutory constraints on appeals of this kind.  The principles are well established.  In deciding whether to exercise my discretion to grant a stay, I need to first be satisfied that there is an arguable case with some reasonable prospect of success, both in relation to permission to appeal and the merits of the appeal. Secondly, I also need to be satisfied that the balance of convenience favours the grant of the stay order that is sought.

[11] During the course of the hearing of the stay application it was clear that the Appellant did not lead any evidence about the impact of any order for compensation on the viability of the Appellant’s business. 6 It is in this context that the Senior Deputy President’s decision that ‘there is no evidence that any order I might make in relation to compensation would have any effect on the viability of Reidwell’s enterprise’7 must be viewed. The Appellant maintains that it was not alerted to the fact that it would be required to lead evidence about its viability by the Senior Deputy President.8 The Appellant will need to develop this point on appeal but presently I am not persuaded that the Appellant was denied an opportunity to lead evidence about this matter, and it is not the role of the presiding member to have conducted the Appellant’s case for it.

[12] As to the Appellant’s submission that there was no evidence that the Respondent would have continued in employment for at least 12 months, the Appellant was unable to take me to any part of the evidence or the transcript which would suggest that the Senior Deputy President was incorrect in her conclusion. 9 As to the Appellant’s submission that there was insufficient evidence before the Senior Deputy President of the steps taken by the Respondent to mitigate her losses by finding other employment, the Appellant conceded that the Respondent gave evidence about the steps that she had taken but that the Appellant could not remember cross-examining the Respondent about this issue.10

[13] In the circumstances, I am not satisfied that the Appellant has made out an arguable case with some reasonable prospect of success either as to permission to appeal or the merits of the appeal.

[14] Turning to the balance of convenience consideration, the Appellant submitted that the Senior Deputy President should not have made compensation payable within 14 days since the Appellant had 21 days within which to appeal. As I pointed out during the course of the hearing of the stay application, an appeal does not operate as a stay and it is for the Appellant to act within a period of time after the decision was made in order to ensure that a stay application could be heard before the date for compliance with an order for compensation. 11 The Appellant was also not prepared to undertake to deposit the amount due to the Respondent into an interest-bearing bank account which would be payable to the Respondent in the event that the appeal was unsuccessful.12 The Appellant submitted that it was unable to do so.13 No other balance of convenience consideration was raised by the Appellant. There was no suggestion that the Appellant would have any difficulty in recovering the sum paid in the event that it was successful (in whole or in part) in the appeal.

[15] In applications of this kind, the stronger the arguable case, the less reliance that needs to be placed on exceptionally strong balance of convenience grounds in order to warrant the grant of a stay order.  Conversely, the weaker the arguable case, the stronger must be the balance of convenience grounds. In this case, as I have already indicated, I am not persuaded that the Appellant has made out an arguable case with some reasonable prospects of success in relation to either permission to appeal or the merits of the appeal. The balance of convenience grounds raised by the Appellant are weak and I am not satisfied that balance of convenience favours the grant of a stay. Moreover, the Appellant has not expeditiously pursued its stay application. This also tells against the exercise of any discretion to grant a stay.

[16] The application for a stay is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Reid for Reidwell Investments BT Pty Ltd t/a Coco Cubano Blacktown

Ms Lyberopoulos for the Respondent

Hearing details:

2015.

Melbourne.

26 August.

 1   [2015] FWC 4256

 2   Ibid at [10] – [12]

 3   Ibid at [14] – [15]

 4   Ibid at [18]

 5 [1936] HCA 40; (1936) 55 CLR 499

 6   Transcript PN 10 – PN 31

 7   [2015] FWC 4256 at [16]

 8   Transcript PN 10 – PN 31

 9   Transcript PN 62 – PN 78

 10   Transcript PN 79 – PN 93

 11   Transcript PN 101 – PN 118

 12   Transcript PN 123 – PN 133

 13   Ibid

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