Roadworx Surfacing Pty Ltd v Robert Dodd - [2025] FWC 576

[2025] FWC 576

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Roadworx Surfacing Pty Ltd
v

Robert Dodd

(C2025/755)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 25 FEBRUARY 2025

Appeal against decision [2025] FWC 215 and order PR783581 of Deputy President Wright at Sydney on 22 January 2025 in matter number U2024/8071 – application for a stay order – application for a stay order refused.

This decision concerns an application by Roadworx Surfacing Pty Ltd for a stay order pursuant to s 606 of the Fair Work Act 2009 (Cth) (Act). It is made in connection with an appeal filed by Roadworx against a decision[1] and order[2] issued by Deputy President Wright on 22 January 2025 for the payment of compensation as a remedy for the unfair dismissal of the respondent, Robert Dodd.

In the decision, the Deputy President found that, contrary to Roadworx’s position, Mr Dodd was dismissed by Roadworx and there was no valid reason for the dismissal. Having regard to the Deputy President’s other findings, the Deputy President concluded that Mr Dodd was unfairly dismissed. The Deputy President determined that compensation was appropriate and issued an order that Roadworx pay to Mr Dodd $33,913.07 gross, plus superannuation less taxation as required by law.

Roadworx seeks a stay of the whole of the order pending the determination of the appeal. The stay is opposed by Mr Dodd.

For the reasons that follow, the application for a stay is refused.

Relevant principles

Section 606 of the Act gives the Commission the discretionary power to stay the operation of the whole or part of a decision that is the subject of an appeal. The case of Edghill v Kellow-Falkiner Motors Pty Ltd,[3] provided the following formulation for determining stay applications:[4]

In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave 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. Each of the two elements referred to must be established before a stay order will be granted.

Accordingly, both ‘elements’ are necessary conditions to the grant of a stay.

Is there an arguable case with some reasonable prospect of success?

In determining a stay application, the Commission must assess the strength of the appellant’s case on appeal without the benefit of hearing the full argument and usually without the opportunity to undertake a full analysis of the case materials. Accordingly, the consideration of whether the appellant raises an arguable case with some reasonable prospect of success is to be undertaken against that context.

In the Form F7 Notice of Appeal, in response to the question, “What are the grounds for your appeal?” Roadworx states “all outlined in the letter.” I therefore understand that Roadworx’s grounds of appeal comprise of the matters set out in the correspondence from Roadworx 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 Roadworx Surfacing Pty Ltd v Robert Dodd

Details

AGLC: Roadworx Surfacing Pty Ltd v Robert Dodd [2025] FWC 576
Case: [2025] FWC 576
Decision Date: 25 FEBRUARY 2025

CaseChat Overview and Summary

Roadworx Surfacing Pty Ltd has appealed a decision of the Fair Work Commission (FWC) which found that Robert Dodd was unfairly dismissed by Roadworx and ordered Roadworx to pay compensation. The FWC, represented by Deputy President Millhouse, heard Roadworx's application for a stay of the decision pending the determination of the appeal. The appeal was opposed by Mr Dodd.

The appeal hinges on several grounds, including claims that Mr Dodd was offered a job, there were efforts to find him a suitable role, meetings were held to allocate work, Mr Dodd's conduct was hostile and agitated, and a consultation meeting was organised to address his sick days and negative attitude. Roadworx also contends that the pay calculation was incorrect. However, the appeal grounds do not clearly demonstrate any alleged error by the Deputy President. Moreover, Roadworx seeks to rely on fresh evidence that was not presented during the original proceedings, which faces significant hurdles under the Fair Work Act 2009. Specifically, Roadworx must demonstrate that the evidence could not have been obtained with reasonable diligence, that it has high probative value, and that it is credible. Additionally, the appeal must identify public interest considerations to gain permission to appeal.

The Deputy President found that Roadworx's appeal grounds did not present an arguable case with a reasonable prospect of success. The appeal does not address any alleged error by the Deputy President, and the reliance on fresh evidence is problematic. Consequently, the application for a stay was refused, as the appeal did not meet the necessary criteria for a stay order under section 606 of the Fair Work Act 2009.

Orders