Roy Morgan Research Limited v K Baker

[2013] FWC 7706

[2013] FWC 7706

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Roy Morgan Research Limited
v
K Baker
(C2013/6194)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 2 OCTOBER 2013

Appeal against decision [[2013] FWC 6694] of Deputy President Gooley at Melbourne on 6 September 2013 in matter number U2013/539 - application for a stay order.

[1] Roy Morgan Research Limited (the Appellant) has appealed a decision 1 and order2 of Deputy President Gooley at Melbourne on 6 September 2013 in which the Deputy President:

● found that the termination by the Appellant of the employment Ms K Baker was not a case of genuine redundancy within the meaning of s.389 of the Fair Work Act 2009 (the Act);

● found that the termination was harsh, unjust and unreasonable;

● found that Ms Baker had been unfairly dismissed; and

● ordered the payment of compensation to Ms Baker of $37,000 less applicable taxation.

[2] The appeal is directed wholly to the finding by Deputy President Gooley that the termination by the Appellant of the employment of Ms Baker was not a case of genuine redundancy within the meaning of s.389 of the Act.

[3] The Appellant seeks an order staying the order of the Deputy President ending the hearing and determination of the appeal.

[4] A person aggrieved by a decision made by a single member of the Fair Work Commission (the Commission) may only appeal a decision with the permission of the Commission. 3 Unlike appeals against decisions made under other provisions of the Act, permission to appeal a decision related to an unfair dismissal remedy will only be granted if the Commission considers it to be in the public interest to do so.4 If an error of fact is said to have been made by the first instance decision-maker in an unfair dismissal remedy related decision, an appeal will only be available if that error of fact is a significant error of fact.5 More generally, other errors said to have been made by a first instance decision-maker must be of a kind identified in House v King.6

[5] The principles that are to be applied in considering whether to grant a stay order should be applied against the statutory constraints on appeals of this kind noted above. Moreover, this tribunal and its predecessor have approached applications for a stay on the basis that, unless otherwise established, there is a presumption that the order or decision that is subject to appeal has been regularly made. 7

[6] It is well established that in deciding whether to exercise a discretion to grant a stay order, the Commission must first be satisfied that there is an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the merits of the appeal, and that the balance of convenience favours the granting of a stay order. 8

[7] With considerable hesitation I am satisfied that the Appellant has advanced an arguable case in the appeal in respect to the findings of Deputy President Gooley as to both s.389(1)(a) and (b). In both instances, the appeal is brought on the basis that the ultimate findings made by Deputy President Gooley were not available on the evidence before her. The Appellant pointed to very limited evidence to support its position in either case for the purposes of the stay. I am satisfied that its appeal is arguable albeit, on the submissions in the stay, barely so.

[8] I am also satisfied that the balance of convenience favours the making of an order staying the order of Deputy President Gooley but in circumstances where the arguable case as to the merits is weak, I will qualify the order to require payment of the compensation ordered by Deputy President Gooley into Ms Baker’s solicitor’s trust account. I have taken this course given the weakness of the arguable case advanced in the stay and having regard to the failure of the Appellant to institute its appeal within a time which permitted the hearing and determination of the stay order application prior to the date upon which compliance with the order of Deputy President Gooley was required.

SENIOR DEPUTY PRESIDENT

Appearances:

J Yeatman, Solicitor for the Appellant

N Campbell, Counsel for the Respondent

Hearing details:

2013.

Melbourne;

2 October.

 1   [2013] FWC 6694.

 2   PR541442.

 3   Section 604(1).

 4   Section 400(1).

 5   Section 400(2).

 6 (1936) 55 CLR 488; Note also the reference in the Explanatory Memorandum (EM) to the Fair Work Bill 2008 at [2320] to the decision in Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 referring to the application of House v King to appeals in the AIRC, and the intention expressed in the EM to maintaining this jurisprudence in relation to FWA appeals.

 7   See for example Kellow-Falkiner Motors Pty Ltd v Edghill, Full Bench AIRC, 17 March 2000 (Print S4216) at para 6.

 8   Kellow-Falkiner Motors Pty Ltd v Edghill, Full Bench AIRC, 17 March 2000 (Print S4216) and applied in this tribunal see for example Boom Logistics Limited v Bell and Mackay, [2013] FWC 1017 per Boulton J, GM Holden Ltd v Symonds, [2013] FWC 332 per Smith DP, Vondoo Hair v Crockett, [2012] FWA 9553 per Watson SDP, Vita Property Group Pty Ltd v Clayworth, [2012] FWA 6547 per Drake SDP, DesignInc (Sydney) Pty Limited v Xu, [2012] FWA 1088 per Watson SDP and Suncorp Staff Pty Limited v Brewer, [2012] FWA 823 per Boulton J.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR542813>