Sam Technology Engineers Pty Ltd v Steven Perry

[2020] FWC 3435

[2020] FWC 3435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

SAM Technology Engineers Pty Ltd
v
Steven Perry
(C2020/4913)

VICE PRESIDENT HATCHER SYDNEY, 30 JUNE 2020

Appeal against decision [2020] FWC 2134 of Deputy President Boyce at Sydney on 10 June 2020 in matter number U2019/14163.

[1] SAM Technology Engineers Pty Ltd (STE) has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Boyce issued on 10 June 2020 1 and the accompanying order.2 The decision concerned an application by Mr Steven Perry for an unfair dismissal remedy against STE. In the decision, the Deputy President determined that Mr Perry’s dismissal by STE was unfair, and he ordered STE to pay Mr Perry by 24 June 2020 the amount of $16,381.91 (subject to applicable taxation required by law) and, in addition, ordered STE to pay $2,457.29 into Mr Perry’s nominated superannuation fund.

[2] The appeal grounds concern the Deputy President’s assessment of compensation. They contend (1) that there was error in respect of “the calculation of the weeks/period of unemployment” and (2) that there are arithmetical errors in the calculation of the compensation amount. STE contends that the grant of permission to appeal would be in the public interest on the basis that:

“It is in the public interest that the correct arithmetic and summation be given.

The excessive nature of the weeks’ award which are greater than 40% of the applicant’s period of employment for a period of employment of such a short duration.”

[3] STE has applied for a stay of the decision pending the hearing and determination of its appeal. This decision is concerned with that application.

[4] 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 Edghill v Kellow-Falkiner Motors Pty Ltd. 3 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.”

[5] 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. 4 

[6] As to the merits of the appeal, STE submitted in respect of its first ground of appeal that the Deputy President ordered an amount of compensation which was manifestly disproportionate to the period of Mr Perry’s employment. The Deputy President found in the decision that Mr Perry had been employed for a period of 8 months and 15 days. 5 However, STE submitted that the true period of employment was only two months and 15 days because the first six months constituted a probation period, and that its first appeal ground should be considered in this context.

[7] I do not consider that this ground of appeal is arguable. The Deputy President assessed the compensation amount in accordance with well-established principles. He deducted a week’s pay from the amount of compensation he would otherwise have ordered on account of the period of Mr Perry’s employment, which he considered to be “short”. 6 The proposition that, in that context, he should have not counted Mr Perry’s probationary period as part of the period of the employment (and thus presumably deducted a greater amount) is self-evidently without merit in circumstances where the commencement and termination dates of the employment do not appear to have been in dispute.

[8] In respect of the second ground of appeal, STE contended that there were two arithmetical errors:

(1) When the Deputy President deducted four weeks’ pay on account of the amount STE paid Mr Perry in lieu of notice upon termination, he deducted the amount of $6,057.69. This did not correspond to Mr Perry’s annual salary of $105,000, nor to the amount which the Deputy President determined as constituting Mr Perry’s weekly remuneration, namely $2,243.96.

(2) The amount ordered by way of superannuation ($2,457.29) was greater than 9.5% of the compensation amount for lost remuneration of $16,381.91.

[9] I consider that it is reasonable arguable that there may be arithmetical errors in the calculation of the compensation amount as contended by STE, although I note that Mr Perry has contended in response that the deduction of $6,057.69 for the amount paid in lieu of notice corresponds to the amount that was actually paid as demonstrated by the relevant pay slip. However it must be noted that, taken at their highest, these alleged errors would only affect a small proportion of the total compensation sum. The first alleged error would at best affect only about $2,000 of the compensation amount of $16,381.91, and the second alleged error would arguably affect approximately $1,300.00 of the superannuation amount of $2,457.29.

[10] As to the balance of convenience, the following factors are relevant:

•  Mr Perry contends that he has been unemployed since his dismissal and is living on Centrelink benefits (although STE disputes this);

•  STE contends that it will have difficulty in recovering any amounts paid to Mr Perry if its appeal is ultimately successful;

•  I also anticipate that there would be difficulty recovering any amount paid to a superannuation fund if the appeal is ultimately successful;

•  I anticipate that the appeal will be able to be heard in the appeal roster scheduled for the week beginning 3 August 2020, which is relatively soon; and

•  I have found that STE’s challenge to the remedy ordered by the Deputy President is only arguable with respect to a maximum of approximately $3,300 of the total of the monetary amounts of compensation.

[11] Having regard to the above, I consider that the balance of convenience weighs in favour of a partial stay of the Deputy President’s order in respect of the maximum amounts that are susceptible to a reasonably arguable challenge. I consider that the appropriate course is to stay the payment of $2,000 of the compensation amount of $16,381.91, and to stay the payment of $1,300 of the superannuation amount of $2,457.29. The balance of the amounts will remain payable in accordance with the Deputy President’s order.

[12] An order giving effect to this decision will be issued in conjunction with this decision.

VICE PRESIDENT

Appearances:

Mr J Schmidt on behalf of the Appellant.
Mr S Perry on his own behalf.

Hearing details:

2020.
Sydney (via telephone):
30 June.

Printed by authority of the Commonwealth Government Printer

<PR720627>

 1   [2020] FWC 2134

 2   PR720092

 3   [2000] AIRC 785, Print S2639

 4   Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]

 5   [2020] FWC 2134 at [48]

 6   Ibid