Vita Property Group Pty Ltd v Clayworth

[2012] FWA 6547

[2012] FWA 6547

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Vita Property Group Pty Ltd T/A Vita Property Group
v
Mrs Clayworth
(C2012/4614)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 9 AUGUST 2012

Appeal against decision [2012] FWA 5380 of Commissioner Williams at Perth on 28 June 2012 in matter number U2012/5412.

[1] This decision arises from an application for a stay order made by Vita Property Group Pty Ltd T/A Vita Property Group (the appellant) pursuant to s.606 of the Fair Work Act 2009 (the Act). The appellant seeks to stay both the decision 1 and order2 of Commissioner Williams of 28 June 2012.

[2] The originating application for an unfair dismissal remedy, filed by Mrs Clayworth pursuant to s.394 of the Act, was heard before Commissioner Williams on 22 June 2012. The Commissioner heard evidence from Mrs Clayworth and Mr Agapitos, a Director of the appellant. Commissioner Williams ordered that the appellant pay Mrs Clayworth $3000 gross in compensation within 21 days from the date of the order.

[3] The stay application was heard by me on 24 July 2012. Mr Agapitos appeared on behalf of the appellant. There was no appearance by Mrs Clayworth.

[4] The principles applicable to a determination of whether or not a stay order should issue were discussed in a Full Bench decision of the Australian Industrial Relations Commission in Edghill v Kellow-Faulkner Motors Pty Ltd 3:

“In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect 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] At the hearing before me Mr Agapitos described the circumstances under which Mrs Clayworth’s employment was terminated. Mr Agapitos submitted that he had sought assistance from the Fair Work Ombudsman Help Line and that he believed that he had followed a correct and fair procedure in dismissing Mrs Clayworth, after relying on the information provided by the Help Line.

[6] Having regard to the steps that Mr Agapitos took, as a first-time employer, to ascertain what process he should undertake to terminate the employment relationship with Mrs Clayworth, it is easy to understand why he is aggrieved by the outcome of Mrs Clayworth’s application. However, the question before Commissioner Williams was a discretionary one and Mr Agapitos has not pointed the Tribunal to any error in the Commissioner’s decision. The decision was available to the Commissioner on the material before him.

[7] Having considered the submissions of Mr Agapitos and the decision of Commissioner Williams, I am not satisfied that the appellant has an arguable case with reasonable prospects of success. In those circumstances I am not satisfied that the balance of convenience is in favour of ordering a stay of Commissioner Williams’ decision and I therefore decline to do so.

[8] The application for a stay of Commissioner Williams’ decision and order is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

S Agapitos for Vita Property Group Pty Ltd T/A Vita Property Group.

Hearing details:

2012
Sydney
24 July

 1   PR525544

 2   PR525545

 3   S4216

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