Rocky Bay Limited v Sandra Conrad
[2023] FWC 3097
•27 NOVEMBER 2023
| [2023] FWC 3097 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Rocky Bay Limited
v
Sandra Conrad
(C2023/6863)
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 27 NOVEMBER 2023 |
Application to stay a decision [2023] FWC 2727 of Deputy President O’Keeffe at Perth on 18 October 2023 in matter number U2023/4334. Application for a stay refused.
Rocky Bay Ltd (Rocky Bay) has lodged an appeal, for which permission is required, against a decision and order1 of Deputy President O’Keefe on 18 October 2023 in relation to Ms Conrad’s unfair dismissal application. The Deputy President’s order, which was published, provides:
A. Further to my decision issued in this matter[1], I order Rocky Bay Limited to pay $29,068.24 to Ms Sandra Conrad, less taxation as required by law, within 7 days of this Order.
In its notice of appeal, Rocky Bay seeks a stay of the operation of the Deputy President’s decision and orders pursuant to s 606 of the FW Act pending the hearing and determination of the appeal. Ms Conrad opposes the grant of a stay.
This decision is concerned with the contested stay application. The stay application was the subject of a hearing. Permission to be legally represented was granted to both parties given the complexities of the matter.
Principles
The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd v Edghill.[2] Paragraph [5] of that decision states:
[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects 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.
Consideration
The grounds of appeal fall under three headings: erroneous findings, legal errors, and significant errors of fact. Under the headings the notice of appeal identifies; ten erroneous findings of fact; complains of three legal errors being a failure to properly apply principle, misapplication of the legislation, and failure to apply a correct test; and alleges two significant errors of fact.
In submissions in support of the stay order Rocky Bay focussed on three matters which it contends establish an arguable case with some reasonable prospects of success. First, the Deputy President erred in finding that its conduct forced Ms Conrad to resign. Second, the Deputy President erred in finding that it was inappropriate to reinstate. Third, the manner of calculating the amount of compensation was incorrect.
In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials. No appeal book has been filed and so I have not had the opportunity of perusing the case materials. Rocky Bay has the burden of persuading me that the appeal is sufficiently arguable to justify the grant of a stay.
In relation to the first matter raised in support of the stay, Rocky Bay contended that, in his reasons, the Deputy President had made a number of findings that were contrary to the evidence. A further argument was put that in doing so the Deputy President, contrary to principle, relied on Ms Conrad’s subjective view of Rocky Bay’s conduct. The problem I have in assessing the first aspect of this argument is that I was not taken to the evidence. Indeed, as no appeal book has been provided, I did not have the evidence. Consequently, I am unable to assess the prospects of those findings being successfully challenged on appeal. I was taken to some parts of the decision that may cast doubt on some of those findings, but that is not enough to be satisfied that there is an arguable case with reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal.
On the subjective intent aspect of the first matter, it would be contrary to principle to rely solely on Ms Conrad’s subjective view of Rocky Bay’s conduct to find that the conduct forced the resignation. In support of this argument, I was taken to the decision and the use of the phrase “the Applicant is entitled to rely upon it to advance her claim that the actions of the Respondent led to her termination” as an indication that the Deputy President relied upon Ms Conrad’s subjective view. Similar phraseology is used a number of times in the findings as to whether there was a dismissal. A submission was put on behalf of Ms Conrad that Rocky Bay was using an appellate fine-tooth comb in making such submissions. Without hearing full argument on this point, I am inclined to agree with Ms Conrad. The expression appears to be a means by which the Deputy President was agreeing with Ms Conrad’s assessment of the conduct and finding that it was objectively a valid response to the conduct to resign. I don’t believe this would be error. On this aspect of Rocky Bay’s first argument, I am also not satisfied that there is an arguable case with reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal.
On the second matter, Rocky Bay contend that there was insufficient evidence for the Deputy President to find that reinstatement was inappropriate. I was told that Ms Conrad did not seek reinstatement. The Deputy President said as much in his decision. The appropriateness of reinstatement was a matter for the Deputy President to determine in the circumstances of the case. As I understand submissions on Ms Conrad’s behalf in the stay proceedings, and findings in various parts of the decision, those circumstances included disagreements over working arrangements, disputes over hours of work and an outstanding grievance, all of which support a conclusion that reinstatement was inappropriate. I note that some of those findings are challenged but I am not able to assess the success of such a challenge without being taken to the evidence.
On the third matter, I am not satisfied on the grounds of appeal, nor the submission made on the stay that there is an error in the way the calculations for compensation was made. Rocky Bay appears to cavil with several factual findings as well as the manner in which the Deputy President applied aspects of the usual tests that apply to the calculation of the compensation. Again, without access to the evidence to assess the case materials I am unable to reach the necessary satisfaction that those matters ground an arguable case on appeal, with some reasonable prospects of success.
For these reasons, on the material before me, I am not satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal.
It is not strictly necessary to deal with the balance of convenience. However, in relation to it, the only matter raised by Rocky Bay was that, if a stay was granted, it would be prepared to either place an amount equal to the order into an interest bearing account or calculate and agree on an interest rate to be applied to the compensation amount if the appeal was ultimately unsuccessful. It did not contend that it would be caused any prejudice if a stay was not granted, and the appeal was successful. For these reasons alone, I would not be satisfied that the balance of convenience weighs positively in favour of the grant of a stay. However, in addition, it is necessary to take into account that it was not in dispute that Rocky Bay has not complied with the Deputy President’s order. That order required the compensation amount to be paid to Ms Conrad within 7 days of the date of the decision. That date was 18 October 2023. The amount was not paid within that time, nor has it been paid to date. Rocky Bay was unable to advance any reason, let alone a reasonable excuse, for its non-compliance. Rocky Bay submitted that it thought the filing of the appeal relieved it of its obligation. A proposition that it accepted was wrong. In any event, the notice of appeal was not filed until 8 November 2023, well after the time for payment.
In Cali Press Pty Ltd v Mr Shih Chieh Wu[3] Hatcher J recently made the following observation which applies equally here:
[13] Failure to comply with an order made under Pt 3-2 of the FW Act constitutes a contravention of s 405 of the FW Act. In my view, if a party wishes to appeal such an order and have its operation stayed pending the hearing and determination of the appeal, it should file its appeal at a time sufficiently prior to the specified date for compliance under the order to allow the stay application to be heard and determined before that date. Where the date for compliance under the order is before the 21 days allowed to lodge an appeal under r 56(2)(a) of the Fair Work Commission Rules 2013 (Cth), it is not acceptable for an appellant to ignore the requirements of the order, file the appeal after the date for compliance has passed, and then expect that it will obtain the benefit of a stay order from the Commission. For the Commission to grant a stay order in that situation would, on one view, amount to it validating a prima facie contravention of s 405 of the FW Act. It is certainly a matter which, in this case, further weighs the balance of convenience against the grant of a stay order.
For the above reasons, the application for a stay order is refused.
DEPUTY PRESIDENT
[1] [2023] FWC 2727
[2] [2000] AIRC 785
[3] [2023] FWC 708
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