Shamrock Consultancy Pty Ltd v Ms Norma Ah San

[2020] FWC 6727

[2020] FWC 6727

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 604 - Appeal of decisions

Shamrock Consultancy Pty Ltd
v
Ms Norma Ah San
(C2020/8803)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 14 DECEMBER 2020

Appeal against decision [2020] FWC 5364 of Deputy President Cross at Sydney on 16 November 2020 in matter number U2020/6149 – stay ordered

[1] Shamrock Consultancy Pty Ltd (Shamrock or the Appellant) has lodged an appeal, for which permission to appeal is required, against a decision and order made by Deputy President Cross (Decision 16 November 2020; 1 Order 19 November 20202).

[2] This decision concerns an application for a stay brought by Shamrock.

[3] The Respondent to the appeal and these stay proceedings is Ms Norma Ah San, a former employee.

[4] The appeal is listed for hearing before a full bench on 15 January 2021. The hearing will deal with both permission to appeal and merits of the appeal.

[5] Directions on the appeal were issued by the Presiding Member on 7 December 2020.

[6] The Order sought to be stayed is an order for payment of compensation in consequence of a finding by the Commission of an unfair dismissal. The Order was in the following terms:

“A. Further to my decision in Ah San v Shamrock Consultancy Pty Ltd [2020] FWC 5364 of 16 November 2020, I order that Shamrock Consultancy Pty Ltd pay to Ms Norma Ah San an amount of $30,000 gross subject to taxation, plus superannuation within 21 days of today.

B. This order comes into effect on 19 November 2020.”

[7] The Respondent opposes the appeal and the application for a stay.

[8] I heard the application for a stay by telephone on 14 December 2020.

[9] By consent, permission was granted for the Appellant to be represented on the stay application. Permission for either side more generally on the appeal is required, consistent with the directions of 7 December 2020.

Consideration

[10] The stay is sought under section 606 of the Fair Work Act 2009 (the FW Act).

[11] Section 606(1) provides:

“If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.”

[12] It is well established that, in deciding whether to exercise its discretion to grant a stay, the Commission must first be satisfied that the appellant has an arguable case with some reasonable prospects of success in the appeal, both in respect of permission 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. 3

Arguable case

[13] Shamrock will first require permission to appeal in order to have its appeal determined. Whether permission is to be granted is a discretionary matter. Shamrock will need to establish to the satisfaction of the full bench that it is in the public interest for permission to be granted.

[14] There are eight grounds of appeal advanced by Shamrock in its Notice of Appeal 4. The grounds assert error on the part of the Deputy President and in particular:

•  Jurisdictional error in finding that there was a dismissal (appeal ground 2);

•  Procedural errors in the form of apprehended bias (ground 1) and an alleged denial of procedural fairness in reaching a conclusion that was not the subject of evidence or submission (appeal ground 3);

•  Significant errors of fact (appeal ground 5); and

•  Errors of reasoning (appeal grounds 4, 6, 7 and 8).

[15] In summary, the appeal is a broadly based challenge to a jurisdictional finding, a merit finding and the quantum of compensation ordered by way of remedy.

[16] A perusal of the Decision indicates that the jurisdictional issue was determined by the Deputy President largely on a factual basis. Unless it can be established by the Appellant that the Deputy President made significant errors of fact in that regard, this ground of appeal would not be made out.

[17] The Deputy President’s conclusion on merit (of unfairness) largely relied on two findings; that no valid reason for dismissal existed and that no reasonable opportunity to respond was provided.

[18] There appears to be some arguable basis for the Appellant to contend that the Deputy President may have erred in drawing a conclusion that there was no valid reason to the extent the Deputy President formed a view that Shamrock had an obligation to pay Ms Ah San, in circumstances where (as acknowledged by the Deputy President) that issue was not canvassed before him. 5 This is not to say though that even if error was found in this regard, it would necessarily give rise to a grant of permission. The Deputy President’s related finding about Ms Ah San having been in financial distress appears not to be challenged in the Notice of Appeal. However, the conclusion that Ms Ah San was ready, willing and available for work is the subject of appeal and that conclusion is said by the Appellant to have a bearing on the Deputy President’s finding as to the cause of her financial distress.

[19] The Deputy President arrived at the compensation sum ordered (equivalent to four month’s pay) by concluding that Ms Ah San would have been likely to have worked for a further year. The Deputy President then discounted the value of a year’s pay by a considerable amount of eight months on account of Ms Ah San’s length of service. Whilst there may be an arguable case that the length of the estimated period of future service and the size of the deduction assessed by the Deputy President were excessive, it is well established that these assessments involve discretionary considerations. Further, even were there errors in this regard, permission would be unlikely to be granted if the conclusion reached does not manifest error or raise public interest considerations.

[20] To only a limited degree does the issue of an arguable case with reasonable prospects of success weigh in favour of granting a stay.

Balance of convenience

[21] The quantum of the compensation order is sizeable: $30,000 gross plus superannuation. The sum was ordered to be payable within 21 days of the Deputy President’s order, being 10 December 2020. In light of the stay application and its listing for 14 December 2020, it has not yet been paid.

[22] In the ordinary course, a successful party to litigation is entitled to the fruits of their success. In this instance, that represents a payment of $30,000 plus superannuation to Ms Ah San.

[23] The application of this principle must however be tempered by a recognition that this litigation is not concluded; the employer has exercised its right to appeal and seeks to set aside the Decision and Order in their entirety. If that were to occur, there would be no sum payable.

[24] Further, the remedy ordered was a monetary sum. Once paid, the successful party would be at liberty to use those funds as they see fit. If the appeal were successful it would not be possible to recoup funds received and used for lawful private purposes.

[25] Relevant however is a countervailing factor. Ms Ah San was found by the Deputy President to be a person in some financial distress. At the stay hearing, she informed the Commission that she remains unemployed albeit looking for work. Delay in accessing the funds ordered is likely to inhibit the amelioration of her financial circumstances. This must be taken into account.

[26] However, the appeal has been listed in a timely manner. The hearing date, on both permission and the merits, is some four weeks away.

[27] Weighing the potential prejudice to Ms Ah San from delay against the potential compromise to the implementation of an appellate order should permission be granted and the appeal be successful, the balance of convenience weighs in favour of granting the stay.

Conclusion

[28] Taking all of these matters into account, I consider that it is appropriate to make an order staying the operation of paragraphs A and B of the Order of Deputy President Cross in PR72472, pending determination of the appeal.

[29] In order to ensure that the compensation ordered by the Deputy President is secure and available to Ms Ah San should permission to appeal not be granted or the appeal be dismissed, it is appropriate to order that the sum (including the value of superannuation contributions) be paid into an interest bearing account established by the Appellant and held in trust pending determination of the appeal. I will order this be done by the Appellant within seven days of the date of the stay order.

[30] The deposited funds are not be used, distributed or withdrawn except in accordance with the determination of the appeal or as otherwise ordered by the Commission. Should permission to appeal not be granted or should the appeal be dismissed those monies, including interest earned, will be payable for the benefit of Ms Ah San in a manner consistent with the Deputy President’s decision.

[31] An order 6 giving effect to this decision is issued separately in conjunction with its publication.

DEPUTY PRESIDENT

Appearances:

B Miles, with permission, for Shamrock Consultancy Pty Ltd

N Ah San, on her own behalf

Hearing details:

2020
Adelaide (by telephone)
14 December

Printed by authority of the Commonwealth Government Printer

<PR725409>

 1   [2020] FWC 5364 (Decision)

 2   PR724721 (Order)

 3   Edghill v Kellow-Falkiner Motors Pty Ltd [2000] AIRC 785, Print S2639 at [5]

 4 F7 7 November 2020

 5   Decision at [62]

 6   PR725407.