S & Q Group Pty Ltd T/A Golf Place Inn v Leslie Jones
[2020] FWC 480
•30 JANUARY 2020
| [2020] FWC 480 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decision
S and Q Asset Management Pty Ltd T/A Golf Place Inn; S & Q Group Pty Ltd T/A Golf Place Inn
v
Leslie Jones
(C2020/178)
VICE PRESIDENT CATANZARITI | SYDNEY, 30 JANUARY 2020 |
Application for an unfair dismissal remedy Appeal against decision [2019] FWC 8333 of Commissioner Riordan at Wollongong on 23 December 2019 in matter number U2019/9330 – application for stay – stay order granted.
[1] On 9 January 2020, S & Q Asset Management Pty Ltd and S & Q Group Pty Ltd (the Appellants) lodged a Notice of Appeal, pursuant to s 604 of the Fair Work Act 2009 (Cth) (the Act), against a Decision 1 of Commissioner Riordan ordering the reinstatement of Mr Leslie Jones (the Respondent) to his employment with the Appellants.
[2] The Appellants’ Notice of Appeal seeks a stay of the whole of the Decision pending the hearing and determination of the appeal, pursuant to s 606 of theAct. The Appellants’ application for a stay order was heard on 23 January 2020 (stay hearing). Mr Wei appeared on behalf of the Appellants and the Respondent was represented by Mr Alistair Sage, the Senior Legal Officer of the Australian Workers’ Union, NSW Branch.
[3] Prior to the hearing, I caused my Chambers to forward a copy of the decision in TIOBE Pty Ltd T/A TIOBE v Chen [2018] FWCFB 5726 (TIOBE) on the basis that it may have some relevance in relation to this appeal. At the hearing, I invited the parties to make submissions on the applicability of TIOBE. 2
[4] At the conclusion of the hearing, I informed the parties that I would grant a stay of the Decision. My reasons for reaching this conclusion are outlined below.
Applicable Principles and General Approach
[5] The approach to be taken to determining if a stay order should be made is to consider: 3
• whether there is a sufficiently arguable case, with some reasonable prospect of success, that permission to appeal would be granted and that the appeal would succeed; and
• whether the balance of convenience weighs in favour of the making of a stay order.
Arguable Reason
[6] In the ‘Form F3 – Employer response to unfair dismissal application’ (F3), the Appellants responded that they employed four people at the time the Respondent was dismissed. Prior to the hearing, the Commissioner joined S & Q Asset Management Pty Ltd as a second responding party to the proceedings to avoid confusion regarding Mr Jones’ transfer of employment. 4
[7] In the Decision, the only reference the Commissioner made to the size of the Appellants’ businesses was in paragraph 36 where he referred to the fact that the Appellants ‘…appear to be a small employer with few staff…’. 5
[8] Section 396 of the Act sets out the initial matters that the Fair Work Commission (the Commission) must consider before considering the merits of the application:
396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
[9] Relevantly, s 396(c) of the Act stipulates that one of the matters that must be decided before considering the merits of an application is ‘whether the dismissal was consistent with the Small Business Fair Dismissal Code’.
[10] Section 388 of the Act specifies that a person’s dismissal was consistent with the Small Business Fair Dismissal Code (the Code) if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal. 6
[11] A ‘small business employer’ is a national system employer that employs fewer than 15 employees at a particular time. 7
[12] The Commission has an obligation, in all matters, to satisfy itself that it has the requisite jurisdiction to perform a particular function. 8
[13] In TIOBE, the Full Bench agreed with the Appellant’s submission that:
‘…the fact that TIOBE may not have contended that the dismissal was consistent with the Code does not relieve the Commission of the statutory obligation to actively consider and determine whether the Code was complied with. So much is said to be is clear from the wording of s.396 where it states that a number of matters must be decided before considering the merits of the application including ‘whether the dismissal was consistent with the Small Business Fair Dismissal Code’. On this basis the Appellant submits that the Commission has an obligation to actively consider and determine the question of compliance with the Code in circumstances where the employer is a small business.’ 9
[14] Ultimately the Full Bench upheld the appeal and found that:
‘The Commissioner’s failure to decide whether the dismissal was consistent with the Code before considering the merits of the application was an error. In the circumstances of this matter it is at least arguable that the error could have made a difference to the outcome, though we express no concluded view on the merits of the Code argument advanced by TIOBE.’ 10
[15] It is arguable from the Commissioner’s statement at [36] of the Decision that the Appellants were in fact a ‘small business employer’, within the meaning of s 23 of the Act. If the Appellants were a ‘small business employer’ then, as a jurisdictional issue, the Commissioner would have had to consider the Code. Section 396(c) of the Act stipulates that the Commission must consider whether there was compliance with the Code before considering the merits of the case.
[16] In the stay hearing, the Respondent submitted that even if the Code was considered by the Commissioner, it would not have made any difference to the outcome of the Decision as the Respondent was not summarily dismissed. However, it remains arguable that the Commissioner’s error in failing to consider the Code could have made a difference to the outcome in the decision. The fact remains that as required by the Act the jurisdictional issue regarding considering the Code needed to be determined first.
[17] Accordingly, I am satisfied that the Appellants have an arguable case, with some reasonable prospects of success.
Balance of Convenience
[18] In relation to the balance of convenience, the Commissioner determined that the Respondent be reinstated to the role of Handyman and that the Respondent be back paid to the date that he was terminated. 11 Given the strongly arguable case referred to above, I am satisfied that the balance of convenience favours the granting of a stay.
Conclusion
[19] I am satisfied 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. Further, I am satisfied that the balance of convenience weighs in favour of granting the application.
[20] Accordingly, the stay application is granted.
[21] An Order (PR716280) will be issued to this effect in accordance with this decision.
VICE PRESIDENT
Appearances:
Mr D Wei on his own behalf, for the Appellants.
Mr A Sage, for the Respondent.
Hearing details:
Sydney.
2020:
January 23.
Printed by authority of the Commonwealth Government Printer
<PR716279>
1 Leslie Jones v S & Q Group Pty Ltd [2019] FWC 8333 (Decision).
2 [2018] FWCFB 5726.
3 Kellow-Falkiner Motors Pty Ltd v Edghill (S4216).
4 Decision at [3].
5 Ibid [36].
6 Fair Work Act 2009 (Cth) s 388(2).
7 Ibid s 23.
8 Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital [2013] FWCFB 6321 at [15].
9 TIOBE Pty Ltd T/A TIOBE v Chen [2018] FWCFB 5726 at [21].
10 Ibid [32].
11 Decision at [52]-[53].
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