DECISION

Fair Work Act 2009
s 604 - Appeal of decisions

Smerff Electrical
v
Mr Jordan Lamacq
(C2019/739)

DEPUTY PRESIDENT SAMS

SYDNEY, 8 FEBRUARY 2019

Appeal against a decision and order of Deputy President Asbury at Brisbane on 14 January 2019 in matter number U2018/5137 – application for a remedy for unfair dismissal – dismissal inconsistent with Small Business Fair Dismissal Code – dismissal ‘harsh, unjust and unreasonable’ – compensation ordered – application for a stay order – balance of convenience does not favour appellant – no reasonable prospect of success – stay order refused.

BACKGROUND

[1] On 3 February 2019, Smerff Electrical (the ‘appellant’) lodged an appeal, for which permission to appeal is required from the Full Bench of the Fair Work Commission (the ‘Commission’) under ss 400 and 604 of the Fair Work Act 2009 (the ‘Act’), against a decision and order of Deputy President Asbury of 14 January 2019 in Mr Jordan Lamacq v Smerff Electrical [2019] FWC 181 (the ‘Decision’). The Deputy President ordered the appellant to pay compensation to Mr Jordan Lamacq (the ‘respondent’) of $11,400.00, following her findings that the dismissal of the respondent on 15 May 2018 was inconsistent with the Small Business Fair Dismissal Code (the ‘Code’), pursuant to s 385(c) of the Act, and was ‘harsh, unjust and unreasonable’, within the meaning of s 387 of the Act.

[2] The appellant’s Notice of Appeal seeks a stay of the whole of the Deputy President’s Decision and Order [PR703797] pending the hearing and determination of the appeal. I note the appeal and the stay application were lodged on the day before the Deputy President’s order was required to be complied with.

[3] Section 604 of the Act reads:

‘604 Appeal of decisions

(1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.’

[4] The right to appeal a decision of the Commission, made under Part 3-2 of the Act, is discretely set out at s 400 as follows:

‘400 Appeal rights

(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can…

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: [2019] FWC 796
Decision Date: 8 FEBRUARY 2019

CaseChat Overview and Summary

Smerff Electrical appealed against a decision made by Deputy President Asbury at Brisbane on 14 January 2019 in matter number U2018/5137. The original dispute involved an application for a remedy for unfair dismissal. The dismissal of Mr Jordan Lamacq was found to be inconsistent with the Small Business Fair Dismissal Code, and it was determined to be harsh, unjust, and unreasonable. Consequently, compensation was ordered. The current appeal pertains to an application for a stay order regarding the enforcement of the decision and the payment of compensation. The appellant sought to halt the enforcement of the decision until the appeal was resolved.

The primary legal issues before the court were whether the balance of convenience favoured the appellant and whether there was a reasonable prospect that the appeal would be successful. The appellant argued that a stay order was warranted to prevent harm until the appeal was heard. The respondent, on the other hand, contended that the balance of convenience did not favour the appellant and that there was no reasonable prospect of success in the appeal.

The court found that the balance of convenience did not favour the appellant. The court considered the potential harm to the respondent if the stay order was granted, which included the inability to enforce the original decision and the financial burden of paying compensation pending the outcome of the appeal. Additionally, the court determined that there was no reasonable prospect that the appeal would be successful, given the evidence and arguments presented. As a result, the application for a stay order was refused.

No further orders were made by the court. The refusal of the stay order meant that the original decision and compensation order remained in effect.

Orders