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…

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.

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Details

Case: [2013] FWC 7706
Decision Date: 2 OCTOBER 2013

CaseChat Overview and Summary

Roy Morgan Research Limited, the applicant, appealed the decision of Deputy President Gooley of the Fair Work Commission, handed down on 6 September 2013, which involved an application for a stay order in the matter numbered U2013/539. The applicant sought to appeal the decision of the Deputy President to deny their application for a stay order in relation to a matter involving an employee, K Baker. The applicant argued that the decision was incorrect and that the stay order was necessary to prevent irreparable harm to the applicant’s business operations.

The legal issues before the court centred around the interpretation and application of the relevant provisions of the Fair Work Act 2009, specifically regarding the authority of the Fair Work Commission to grant a stay order in employment disputes. The applicant contended that the Deputy President had erred in his assessment of the likelihood of irreparable harm and in his interpretation of the relevant legislative provisions. The applicant argued that the refusal to grant a stay order would result in significant financial loss and disruption to their business operations.

The court considered the arguments presented by both parties and examined the relevant legislative provisions. The court found that the Deputy President had not erred in his assessment of the likelihood of irreparable harm. The court held that the applicant had not demonstrated that the refusal to grant a stay order would result in significant financial loss or irreparable harm to their business operations. The court also found that the Deputy President had correctly interpreted the relevant provisions of the Fair Work Act 2009 in relation to the authority of the Fair Work Commission to grant a stay order. The court dismissed the appeal and affirmed the decision of the Deputy President.

The final orders of the court were that the appeal be dismissed, and the decision of the Deputy President be affirmed. The court found that the applicant had not demonstrated that the decision of the Deputy President was incorrect or that the refusal to grant a stay order would result in significant financial loss or irreparable harm to their business operations. The court held that the Deputy President had correctly interpreted the relevant provisions of the Fair Work Act 2009 and had not erred in his assessment of the likelihood of irreparable harm.

Orders