Steric Solutions Pty Ltd v Minas Trialonas
[2017] FWC 5647
•31 OCTOBER 2017
| [2017] FWC 5647 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Steric Solutions Pty Ltd
v
Minas Trialonas
(C2017/5799)
James Docherty
v
Minas Trialonas
(C2017/5803)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 31 OCTOBER 2017 |
Appeal against decision [2017] FWC 5068 and Order PR596481 of Commissioner Johns at Sydney on 29 September 2017 in matter number U2016/15558.
[1] On 29 September 2017, the Fair Work Commission found that Mr Minas Trialonas was unfairly dismissed 1 by Steric Solutions Pty Ltd and ordered2 that he be paid $25,765.22 gross less taxation as required by law within 28 days of the date of the decision.
[2] Mr James Docherty and Steric Solutions Pty Ltd have appealed the decision and order of Commissioner Johns and sought a stay of the decision and order.
[3] At the hearing of the stay, I granted Mr Trialonas permission to be represented by a legal practitioner. Permission to appear was opposed by the Appellants. Counsel for Mr Trialonas relied on the grounds put to the Commission at first instance to support its application for permission to appear. It was submitted that there were legal aspects associated with the matter, such that representation was appropriate. It further submitted, that the Appellants alleged that there had been a denial of natural justice at first instance and due to his disability Mr Trialonas was not able to represent himself effectively. I granted permission for Mr Trialonas to be represented at the stay application. I accept the submission that the matter involves some complexity and that Mr Trialonas would not be able to represent himself effectively.
[4] Steric Solutions was represented by one of its employees, Mr David Docherty as Ms Leanne Docherty, Steric Solutions’ director, who represented Steric Solutions before Commissioner Johns, was not able to attend.
[5] Mr James Docherty represented himself.
Background
[6] Mr Minas Trialonas made an unfair dismissal application and named 3D Scaffolding as his employer. Steric Solutions filed an employer response to that application and advised that, at all relevant times, it was Mr Trialonas’ employer. Mr Trialonas did not accept that he was employed by Steric Solutions and the preliminary question of who was Mr Trialonas’ employer was heard. An issue had also been raised as to whether there was in existence a settlement agreement.
[7] Directions were issued to Mr Trialonas to file material in relation to the alleged settlement agreement and the merits of his claim. 3D Scaffolding was directed to file material in relation to the alleged settlement agreement and in opposition to the application.
[8] Subsequently, after a mention hearing, directions were issued requiring a representative of 3D Scaffolding Pty Ltd to attend and give evidence in relation to its claim that it was not the employer. It was advised that any documents it intended relying on needed to be provided to Mr Trialonas. The Commissioner also requested a representative of Steric Solutions attend to give evidence in support of its claim that it was Mr Trialonas’ employer. That direction noted that Mr Trialonas’ application against 3D Scaffolding would proceed and as part of that hearing the Commissioner would decide if 3D Scaffolding was the true employer. If he found 3D Scaffolding was the employer, the matter would proceed on that day.
[9] Material was filed by Mr Trialonas in relation to the merits of his application and submissions were filed in response to the claim that 3D Scaffolding was not the employer.
[10] 3D Scaffolding filed material in support of its claim that it was not the employer and to support its claim that Mr Trialonas was employed by Steric Solutions.
[11] At that hearing, Mr James Docherty represented 3D Scaffolding 3 and Ms Docherty was present as requested by the Commissioner.4
[12] Mr Trialonas’ witness statement was tendered into evidence 5 and further evidence in chief about the dismissal was led. In addition, Mr Trialonas gave further evidence in chief about the identity of his employer. Ms Docherty was directed by the Commissioner to remain outside of the hearing room whilst Mr Trialonas was giving evidence.6
[13] Mr Docherty, at the commencement of his cross examination said “I thought we were deciding whether he worked for 3D Scaffolding or not.” The Commissioner relied “yes, we are. We are and this is his evidence about all of that and so this is your opportunity to ask him any questions about that.” 7
[14] Mr Docherty cross examined Mr Trialonas about the identity of his employer and about his dismissal. He was also asked about safety related issues. The questions asked about the safety issues were objected to on the basis that they were being raised for the first time. 8 As a result, the Commissioner advised that Mr Docherty could cross examine Mr Trialonas about the identity of the employer but not in relation to the termination.9
[15] Mr Docherty gave evidence and was cross examined.
[16] Ms Docherty gave evidence about Mr Trialonas’ employment and was crossed examined. In addition, the Commissioner asked her questions about the events that led to Mr Trialonas’ termination. After those questions the Commissioner asked Ms Docherty if there was “anything that [she] wanted further to say that you think I need to understand about the employment arrangement, corporate arrangements, or whatever?” She replied no. 10
[17] Mr Docherty sought to question Ms Docherty to clear things up but the Commissioner ruled that he was not permitted to. 11
[18] During closing submissions the Commissioner asked Ms Docherty if she would object to Mr Trialonas being given an extension of time to commence proceedings against Steric Solutions. 12 Ms Docherty advised that she did object to this proposal because she had advised at the start that Mr Trialonas had named the wrong employer.13
[19] Subsequently, the Commissioner raised whether he was able use s.586 (a) of the Fair Work Act 2009 to amend the application to change the name of the employer to Steric Solutions Pty Ltd. 14 He advised that Mr Trialonas and Steric Solutions would be given a further opportunity to address him on this proposition.
[20] Mr Docherty made closing submissions about the true identity of Mr Trialonas’ employer. He also made submissions about Mr Trialonas’ work performance. 15 Mr Docherty complained that he had been prevented from asking Ms Docherty about the safety issues.16
[21] Neither party made any submissions or called any evidence in relation to the alleged settlement agreement.
[22] At the conclusion of the hearing, the Commissioner gave Mr Trialonas and Steric Solutions one week to make further submissions about the Commission’s power to correct the original application to insert the name Steric Solutions. 17
[23] Steric Solutions filed submissions opposing the amendment. It did not address the issue of whether the Commission had the power to make the amendment. Mr Trialonas filed submissions as did 3D Scaffolding.
[24] Commissioner Johns issued a decision on the preliminary issue on 23 June 2017 in which he found that Mr Trialonas’ employer was Steric Solutions. 18 He further determined to correct the application to identify the Steric Solutions Pty Ltd as the employer.19
[25] As part of that decision he made findings about what had occurred at the workplace from 6 December 2016. 20 Relevantly he said that “it seems that, more likely than not, the reason for the termination of Mr Trialonas’ employment was not the vulgar language that he directed at Ms Docherty on 6 December 2016, but a direction given be James Docherty to his niece. It seems that the reason for the termination was that the part owner of Ms Docherty’s only customer wanted Mr Trialonas gone. This put her in a difficult position, but she obliged.”21
[26] That decision has not been appealed. 22
[27] Directions were issued and Mr Trialonas was directed to file material in support of his application and Steric Solutions was directed to file material in opposition to the application.
[28] Mr Trialonas filed submissions in support of his application. Steric Solutions filed a statement in which Ms Docherty said “Minas Trialonas was dismissed for serious misconduct including but not limited to language, intimidation, bullying and serious safety breaches as admitted by Mr Trialonas in the last hearing.” Steric Solutions relied upon the definition of serious misconduct found in the Act.
[29] On 25 July 2017, Commissioner Johns sent the parties an email advising that the matter would be listed for a further hearing. In that email the Commissioner noted that:
“The Commissioner has questions for Ms Docherty arising out of her statement of 14 July 2017.
In particular, noting:
- that Ms Docherty reinstated Mr Trialonas into his employment on 8 December 2016 (see para [26](n) of the Jurisdiction Decision); and
- the evidence referred to at paragraphs [26](o) – (s) of the Jurisdiction Decision,
it is difficult to reconcile what Ms Docherty now contends occurred.
It might be that Ms Docherty (having reinstated Mr Trialonas) changed her mind. There are a number of decisions of the Commission where employees have been able to change their mind (in relation to resignation) and it might be that the respondent will urge the Commissioner to apply similar principles in the present matter.
The Commissioner has questions about what was the valid reason for dismissal under s.387(a) of the FW Act. Acting under direction from a client, may constitute the same.
Ms Docherty, as a self-represented litigant, ought properly, as a matter of procedural fairness, be provided with an opportunity to explain these matters.
That will be the focus of the hearing on Friday.”
[30] The matter was heard on 28 July 2017 and Ms Docherty represented Steric Solutions.
[31] Mr Trialonas was recalled to the witness box and gave further evidence about his activities post termination. Ms Docherty was asked if she wished to cross examine Mr Trialonas and she declined. 23
[32] Ms Docherty gave evidence and denied that Mr Trialonas was reinstated on 8 December 2016. 24 She gave evidence about her reasons for dismissing Mr Trialonas.25 Ms Trialonas then raised issues about safety breaches and that evidence was objected to on the basis that no evidence had been filed by Steric Solutions about safety breaches.26
[33] When the Commissioner put to her that she had had the opportunity to file material and that it would be procedurally unfair to allow her to give further evidence when the other party was not on notice, Ms Docherty said “in the last hearing I was brought here to find out – you told me it was to determine who Minas was employed by so I didn’t really get a fair hearing. I didn’t get to explain anything and now I’ve left it open to explain it today and you’re telling me you don’t want to hear it.” 27
[34] The Commissioner noted that had Steric Solutions wished to raise new matters it could have filed witness statements and it did not. 28 He refused to allow Ms Docherty the opportunity to give additional evidence.29 The Commissioner noted that Steric Solutions had had the opportunity to appeal his earlier decision.30
The applications for a stay
[35] In deciding whether to issue a stay, the Commission needs to be satisfied that the party seeking the stay has made out an arguable case that has some reasonable prospect of success, in respect of both the question of permission to appeal and the substantive merits of the appeal, having regard to the additional hurdle in unfair dismissal related appeals set out in s.400 of the Act. Further consideration must be given to whether the balance of convenience favours the granting of a stay.
[36] This assessment is necessarily carried out without the benefit of hearing the party’s full argument and without the opportunity to undertake a thorough analysis of the case material.
Grounds of appeal – Mr Docherty
[37] Mr Docherty submitted:
1. Commission had no jurisdiction applicant not employed by respondent. Proof supplied tax file declaration 11 years of group certificates 3 workers compensation claims made against actual employer.
2. Applicants solicitor claimed to have an agreement with respondent despite having never communicating with anyone from respondent. Commission had no jurisdiction this claim needed to be pursued elsewhere.
3. Applicant did not make his claim in prescribed time limit, with no viable excuse or extenuating circumstances, so his solicitor engaged in vexatious litigation in the belief of a favourable result harassing Leanne Docherty to the point she insisted he communicate with her only by email
4. The commissioner was guided and believed irrelevant and untrue facts, which were shown to have no substance under cross examination. Even with the applicants employment history at his disposal he determined the applicant started his employment some 17 months after he filled out his tax file declaration, as this was the applicants story.
5. The commissioner did not allow questioning of Leanne Docherty by the respondent but did allow it by the applicant. Questioning of the applicant was stopped by the commissioner, reason given you say he does not work for you therefore you cannot question him.
6. The commissioner did not take into account the applicant and Leanne Docherty had a meeting on the 7th December to discuss the consequences of the applicant calling her a “Backstabbing Cunt” where it was decided the applicant would return to work with a new attitude, he would not cause problems and stop his safety breaches whilst using the forklift.
7. The commissioner did not take into account the applicant was finally dismissed on 9th December due to a working relationship that could continue no longer as the applicant committed several serious and life threatening safety breaches whilst operating the forklift. Leanne Docherty was asked to remove him from site immediately and not to bring him back to site otherwise her contract would be terminated as he was a serious danger to anyone on site.
Permission to appeal – Mr Docherty
[38] Mr Docherty submitted:
“The decision is unjust, unfair and the amount awarded is totally excessive.
The lack of evidence being allowed to be put forward or considered made this matter grossly unfair, not ad hearing to the principle a fair go for all.
Doing a character assassination in his judgment on a family that was not party to this dispute nor where able to defend themselves was totally unnecessary.
The commissioner got his first judgment totally wrong including who runs the company. Who makes the decisions.
The commissioner was totally Bias in favour of the applicant which can be seen in his decisions.
The commissioner had no authority or jurisdiction to run this matter
The applicants solicitors decided to run a vexatious litigation instead of making an application out of time. This vexatious litigation was asked to be dismissed and refused. It was confirmed in the commissioners findings there was no chance of success.
No request was made for an out of time application the commissioner decided he would make it an in time application although there was no valid reason to do so. You do not work for a company for 11 years fill in a tax file declaration, make tax returns on their group certificates, make 3 workers compensation claims, then say you did not know who you worked for”
Mr Docherty’s application for a stay
[39] At the hearing, I advised Mr Docherty that he would need to address me on how he had an arguable case that:
1. he was a person aggrieved (see s.604(1) of the Act); and
2. he had arguable case that he had reasonable prospects of success both in respect of permission to appeal and the appeal itself.
[40] In addition, he needed to address me on why the balance of convenience favoured a stay.
[41] Mr Docherty submitted the decision was manifestly unfair and unjust and the application should never have proceeded. The hearing was not conducted in a fair manner. Mr Docherty sought to rely on matters arising from the first decision. Mr Docherty said he was unhappy with the way the matter was conducted and he was unhappy with the outcome. He submitted that the characters of his family members were disparaged in circumstances where they were not there to defend themselves.
[42] Mr Docherty said as a member of the general public he was affected by the orders because they were not fair; the hearing was not conducted fairly; and it needs to be looked at. As a member of the public he submitted they need to be able to trust the people making these decisions and they needed to understand what is going on.
[43] He further put, that given it had been alleged by Mr Trialonas that there was an agreement with 3D Scaffolding (which was a lie), Commissioner Johns did not have the jurisdiction to hear the matter.
[44] To support his submission that the compensation order was excessive, Mr Docherty submitted that Mr Trialonas would only have been entitled to five weeks’ pay if he was dismissed. He alleged that the Commission had made an excessive order because Mr Docherty asked the Commissioner for an apology at the hearing.
[45] Mr Docherty complained that he was not permitted to cross examine witnesses particularly Ms Docherty. Further, he complained that Ms Docherty was not permitted to say anything.
[46] Mr Docherty was not party to these proceedings. He was a representative of 3D Scaffolding at the first hearing. As a result of the first decision in this matter 3D Scaffolding ceased to be a party to the proceeding and the decision under appeal did not involve 3D Scaffolding and no orders were directed to 3D Scaffolding.
[47] Mr Docherty submitted that he was aggrieved because of the bias shown by the Commissioner and the excess amount awarded.
[48] Mr Docherty submitted that he was aggrieved as a member of the public.
[49] In Tooheys Ltd v Minister For Business And Consumer Affairs 31 Ellicot J said:
The words “a person who is aggrieved” should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. …………………….This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties (cf Robinson v Western Australian Museum(1977) 16 ALR 623 ; 138 CLR 283).
[50] I am not persuaded that Mr Docherty has established that he has an arguable case that he will establish that he is a person aggrieved. As this is a prerequisite to the determination of Mr Docherty’s appeal, I will not at this time, consider whether there is an arguable case that Mr Docherty would be successful in being granted permission to appeal or that any such appeal had reasonable prospects of success. However I note that much of what Mr Docherty complains about relates to the first decision which has not been appealed.
[51] Balance of convenience does not favour Mr Docherty. Mr Docherty is not bound by the decision or order. I therefore decline to a grant a stay in relation to Mr Docherty’s appeal.
Grounds of appeal – Steric Solutions
[52] Steric Solutions submitted:
1. Commission had no authority to hear this matter as applicant was not nor ever had been employed by company named in application. Proof supplied.
2. Commission had no authority to hear this matter as applicants solicitor said he had an agreement with said company different jurisdiction.
3. Original matter was a vexatious litigation and was asked to be dismissed as such.
4. Applicants legal team admitted to being out of time and did not make a submission so where compelled to pursue vexatious litigation in the hope of a favourable result.
5. The commissioner was guided by irrelevant facts put forward by the applicant which were proved false under cross examination
6. The commissioner did not allow proper questioning of the applicant or Leanne Docherty.
7. The commissioner did not take into account the applicant had a meeting with Leanne Docherty where it was decided the applicant would return to work under a trial basis.
8. The commissioner did not take into account the applicant was dismissed for serious safety breaches on the day as he continued to drive the forklift whilst listening to loud music on his headphones, he drove the forklift with the tines to high with no load, he alighted from the forklift without engaging the handbrake, continued to strap boards in the same manner as caused his eye injury despite being counselled against this. As this was in contravention to what was discussed and agreed to at the meeting and the fact my client said he would no longer allow the applicant on site due to the fact of safety. If I was to bring the applicant on to site my contract would be terminated immediately as the risk was to great for any personnel on site
9. The decision by the commissioner is a great injustice to the respondent who is the aggrieved party having done everything reasonable to keep the applicant employed
Permission to appeal –Steric Solutions
[53] Steric Solutions submitted:
“The decision is manifestly unjust, the award amount is excessive.
Evidence was blocked from being presented and any evidence put forward by the respondent was dismissed or not considered.
acted upon the wrong principle
Commissioner Johns didn’t have the authority to hold a hearing as he had all the proof necessary to determine who the applicant was employed by. The proof supplied was Tax File Declaration, 11 years of group certificates, 3 workers compensation claims against the actual company he worked for not who he stated he worked for. His legal team also knew this form the start. Yet continued to mount vexatious litigation as they had run out of time to lodge against the company he actually worked for.
Failed to allow questioning of the applicant while under oath
Did not take In to account the original conflict when he used the vulgar phrase “backstabbing cunt” with no provocation, which was admitted to in evidence which ultimately lead to his final dismissal on the 9th December 2016 due to his serious safety breaches after having been counseled on 7th December, 2016
Agreed to come back on a trial basis at which time he would change his behavior and attitude, ultimately this didn’t happen. Resulting in a work relationship that could no longer continue.
mistaken the facts or failed to take some material into consideration or account
The commissioner did not take into account the applicant was dismissed for serious safety breaches on the day as he continued to drive the forklift whilst listening to loud music on his headphones, he drove the forklift with the tines to high with no load, he alighted from the forklift without engaging the handbrake, continued to strap boards in the same manner as caused his eye injury despite being counselled against this. As this was in contravention to what was discussed and agreed to at the meeting and the fact my client said he would no longer allow the applicant on site due to the fact of safety. If I was to bring the applicant on to site my contract would be terminated immediately as the risk was to great for any personnel on site”
Steric Solutions’ application for a stay
[54] Steric Solutions was represented by Mr David Docherty. Mr David Docherty had not been present at the earlier hearings. At the stay hearing Mr David Docherty did not take the Commission to any of the evidence or submissions that were before the Commission at first instance to support his application for a stay.
[55] It is sufficient to consider if there is an arguable case that at least one of the grounds of appeal relied upon would have reasonable prospects of success both in relation to permission to appeal and the appeal itself.
[56] The first four grounds of appeal arise from the June decision which is not the subject of this appeal. No submissions were made in relation to appeal ground 5. In relation to ground 7, Ms Docherty did give evidence that Mr Trialonas returned to work after the altercation on a trial basis. However there was no submission that this was a separate engagement. At its highest, it could be said, if this evidence were accepted, that Mr Trialonas was on notice that if there was any other conduct or performance issues, he would be dismissed. I was not taken to any evidence of Steric Solutions that would support a finding that there was any subsequent conduct or performance issues. In relation to grounds 8 and 9, again I was not taken to any evidence which supported this submission.
[57] Ground 6 of the appeal alleges that the Commissioner did not allow proper questioning of Mr Trialonas or Ms Docherty.
[58] Steric Solutions submitted that it was told that the first hearing would only be dealing with the identity of the employer. However in addition to this, half the substantive case was heard. Ms Docherty went prepared to discuss Mr Trialonas’ employment but not the merits of the claim. When the further hearing of the matter was held she was not able to revisit these matters. Mr David Docherty said that the case was biased because Mr James Docherty was attacked because of an earlier unrelated matter. It was submitted that the second hearing was impacted by what happened at the first hearing in circumstances where they were told only the identity of the employer would be considered.
[59] Mr David Docherty was asked why Steric Solutions had filed limited evidence in response to the directions after the first hearing. Mr David Docherty was not able to answer this question and relied on the fact that when Ms Docherty sought to give additional evidence at the hearing she was denied that opportunity. It was put that Ms Docherty had been intimidated by Mr Trialonas’ representative and she did not want to say anything before she attended the hearing. Mr David Docherty complained that Ms Docherty was not permitted to explain what was in her statement.
[60] When asked why Ms Docherty had not taken the opportunity to cross examine Mr Trialonas at the second hearing, Mr David Docherty said she didn’t because she thought the evidence from the first hearing would be considered and also because she thought what she said would not have an impact and she felt intimidated.
[61] In relation to balance of convenience, it was said that there had been some issues at work including a truck blowing up and if they have to pay the monies then that would take away the only operating capital they have left and the company would fold. It was also put that if Mr Trialonas was dismissed unfairly, he would have only been entitled to five weeks pay.
[62] In response to the question of balance of convenience, Counsel for Mr Trialonas submitted that there was no evidence called to support the claim that the lack of stay would adversely affect the viability of the company. It was submitted that no regard should be had to this evidence given from the bar table.
[63] It was put that the ordinary rule is that a party should receive the benefit of the order achieved at first instance.
[64] It was put that much of the appeal grounds goes to the first decision and the Appellants have not lodged an appeal against that decision.
[65] In response to the issue of whether Steric Solutions was denied natural justice because the evidence of Mr Trialonas was taken at the first hearing in the absence of its representative, it was put that the employee’s evidence was only connected to the manner of his employment, the identity of his employer and to the extent that it was relevant to the identity of his employer, the manner of his dismissal because the question of who fired him was relevant. It was said that the evidence on merits was not part of the evidence in chief but brought into the hearing during cross examination by Mr Docherty.
[66] It was also put that Ms Docherty, when the Commissioner put to her Mr Trialonas’ evidence about what happened, agreed with those factual propositions.
[67] Therefore it was submitted that Ms Docherty was not denied natural justice in any practical sense when she was excluded from the hearing when Mr Trialonas was giving evidence.
[68] It was put that, when Mr Docherty was cross examining Mr Trialonas, this was the first occasion when the allegations about safety breaches rather than the altercation were said to be the true reason for the dismissal. There was no evidence of warnings or what the safety breaches were. It was accepted that the Commission did stop this questioning.
[69] It was submitted that Steric Solutions was afforded an opportunity to call additional evidence to support its submission about the real reason for the dismissal and it did not do so. It was put that while the Commission is obliged to afford the parties with an opportunity to present their case it is not obliged to ensure that a party takes advantage of the opportunity given to them. It was further submitted that a perfect trial is an unrealistic aspiration.
[70] It was further submitted that the decision to exclude Ms Docherty occurred at the first hearing and there was no appeal against the factual findings made by the Commissioner in the first decision.
Consideration
[71] I am satisfied that that Steric Solutions has an arguable case that it may have been denied natural justice at the first hearing when evidence was led about the merits of the case when its representative was excluded from the hearing. Mr Trialonas gave evidence in chief through his witness statement about the merits of the claim. It is clear that when Mr Trialonas first gave evidence that Ms Docherty had been excluded from the hearing. She was not provided with an opportunity to cross examine Mr Trialonas at that hearing. Mr Trialonas’ evidence at that hearing was not limited to the identity of the employer. However, Ms Docherty was afforded an opportunity to cross examine him at the second hearing and she chose not to do so.
[72] I accept the submissions of Steric Solutions that the way the hearing was conducted at first instance may have impacted the way the second hearing was conducted given that findings made in the first decision were relied upon in the second decision.
[73] I am satisfied that there is an arguable case that a denial of natural justice would also mean that that there is an arguable case that permission to appeal may be granted.
[74] I am not satisfied that the balance of convenience favours the granting a stay. At the hearing before Commissioner Johns no evidence was given or submission made that an order for the payment of amount of monies sought would have any impact on the business. 32 There was no evidence given at the stay hearing to support the propositions put from the bar table by Mr David Docherty about the financial state of the business. Further there was no submission made that there would be any difficulty in recovering the monies if they were paid to Mr Trialonas.
[75] The decision to grant a stay involves a consideration of both limbs of the test. A strongly arguable case may cause a stay to be granted even if the balance of convenience does not support a stay and vice versa. While I accept that there is an arguable case that there may have been a denial of natural justice, I also accept that it is arguable that any denial was overcome by the directions to permit Steric Solutions to file evidence and make submissions and to cross examine Mr Trialonas at the second hearing. Because Mr David Docherty was not familiar with how the matter was conducted below, he was not able to properly address these issues. However the obligation is on the party making the application for the stay to make out a case and I am not satisfied on the submissions made by Steric Solutions that a stay is warranted.
[76] Accordingly, I have decided to dismiss Steric Solutions’ application for a stay of the decision and order of Commissioner Johns.
DEPUTY PRESIDENT
Appearances:
D. Docherty for Steric Solutions Pty Ltd.
J. Docherty on his own behalf.
A. Jenshel for Minas Trialonas.
Hearing details:
2017.
Melbourne and Sydney, by video link:
25 October.
1 [2017] FWC 5068
2 PR596481
3 5 May 2017 Transcript PN 13
4 Ibid PN 44-45
5 Ibid PN 80
6 Ibid PN 46
7 Ibid PN 112-113
8 Ibid PN 381
9 Ibid PN 425
10 Ibid 1005
11 Ibid PN 1007-1015
12 Ibid PN 1084
13 Ibid PN 1089
14 Ibid PN 1112
15 Ibid PN 1133
16 Ibid PN 1146
17 Ibid PN 1165
18 [2017] FWC 3138
19 Ibid at [60]
20 Ibid at [26](i)-(r)
21 Ibid at [26](s)
22 28 July 2017 Transcript PN 15, Commissioner Johns noted that Mr Docherty had every opportunity to appeal the decision
23 Ibid PN 84-85
24 Ibid PN 103-104
25 Ibid PN 105-110
26 Ibid PN PN114-117
27 Ibid PN 118
28 Ibid PN 119
29 Ibid PN 118
30 Ibid PN 120-122
31 (1981) 36 ALR 64 at 79
32 Transcript PN 418
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