Reliable Petroleum Pty Ltd v Mr Fraser Murray

[2017] FWC 4244

[2017] FWC 4244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Reliable Petroleum Pty Ltd
v
Mr Fraser Murray
(C2017/4410)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 16 AUGUST 2017

Appeal against decision [2017] FWC 3552 of Commissioner Hampton at Adelaide on 20 July 2017 in matter number U2017/1796 - application for stay order.

[1] Reliable Petroleum Pty Ltd (Reliable Petroleum) has lodged an appeal, for which permission is required, under s.604 of the Fair Work Act 2009 (Act). The appeal is against a decision 1 and order2 of Commissioner Hampton made on 20 July 2017. In summary, the Commissioner determined that the dismissal of Mr Fraser Murray was unfair because it was harsh, concluded that reinstatement of Mr Murray was appropriate and ordered that Mr Murray be reinstated to the position he occupied immediately before the dismissal.

[2] Reliable Petroleum seeks a stay of the whole of the decision and order pending the hearing and determination of the appeal. The grant of a stay involves the exercise of a discretion, the exercise of which is guided by a consideration of whether there is an arguable case, with some reasonable prospect of success, in respect of both the question of permission to appeal and the substantive merits of the appeal, together with a consideration of whether the balance of convenience would favour the grant of a stay.

[3] Mr Murray has resumed his employment with Reliable Petroleum and is currently completing an induction which would enable him to recommence his duties as a driver. Thus, although the Commissioner’s order has enabled a return to work by Mr Murray, Reliable Petroleum presses the stay application with some urgency as it does not wish Mr Murray to resume driving duties pending the hearing and determination of the appeal. I heard the stay on 15 August 2017. At the conclusion of the hearing I indicated to the parties that given my commitments I would not likely be in a position to deliver a decision with reasons, however I would issue a short decision determining the stay application as soon as practicable and I would issue reasons for that decision in due course.

[4] Reliable Petroleum also foreshadowed that it would seek leave to amend its grounds of appeal so as to put in issue the Commissioner’s finding that reinstatement of Mr Murray was not inappropriate, as I was not persuaded upon reading of the grounds of appeal that that finding was challenged directly. It appeared to me that the grounds of appeal are concerned solely with the merits consideration in the decision and not remedy. Be that as it may, I have made my assessment as to the strength of the permission to appeal and merits of the appeal cases on the basis of the grounds of appeal advanced in the notice of appeal and not those which might be advanced pursuant to any amendment.

[5] I am not persuaded that Reliable Petroleum has made out an arguable case that has some reasonable prospect of success, in respect of both the question of permission to appeal and the substantive merits of the appeal, having regard to the additional hurdle in unfair dismissal related appeals set out in s.400 of the Act. This assessment is necessarily carried out without the benefit of hearing Reliable Petroleum’s full argument and without the opportunity to undertake a thorough analysis of the case material.

[6] In the circumstances, it is not necessary for me to consider where the balance of convenience lies, however since the issue was the subject of submissions and even if I am wrong in my preliminary assessment, I am not persuaded that the balance of convenience favours the grant of a stay. The applicant has returned to work, albeit undertaking an induction rather than resuming full duties. A stay would deprive Mr Murray of income which would flow to him necessarily as a consequence of the reinstatement order. This adverse effect could be overcome by a partial stay, the effect of which would be to stay so much of the order as would require Reliable Petroleum to provide work to Mr Murray, but would otherwise require Reliable Petroleum to continue to pay wages to Mr Murray until the hearing and determination of the appeal. Such a partial stay was not opposed by Reliable Petroleum when I canvassed that possibility during the hearing. However, I am persuaded that a not insignificant factor in the balance of convenience consideration is the fact that such a stay would deprive Mr Murray of actual employment, which he has since his dismissal and until very recently been denied, and to which he has become entitled by reason of the order. The benefit of actual employment through the performance of work carries an intrinsic value, which is distinct from and additional to the wages that are earned in the performance of that work. I am not persuaded on the material before me that the matters advanced by Reliable Petroleum shift the balance sufficiently the other way.

[7] The application for a stay order is dismissed. The permission to appeal application was scheduled for hearing before a Full Bench on 4 September 2017. That date has been vacated on application by Mr Murray, which was not opposed by Reliable Petroleum. As I foreshadowed during the hearing, I propose to schedule an alternative date for hearing at which both the application for permission to appeal and the substantive appeal will be argued. A Notice of Listing and Directions will be separately issued.

DEPUTY PRESIDENT

Appearances:

Ms G Walker, Counsel,on behalf of Reliable Petroleum.

Mr E Lawrie, on behalf of Mr Fraser Murray.

Hearing details:

2017.

Melbourne.

15 August.

 1   [2017] FWC 3552.

 2   PR594531.

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