[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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Details

AGLC: Vita Property Group Pty Ltd v Clayworth [2012] FWA 6547
Case: [2012] FWA 6547
Decision Date: 9 AUGUST 2012

CaseChat Overview and Summary

In this appeal, Vita Property Group Pty Ltd contested the decision of Commissioner Williams of the Fair Work Commission, delivered on 28 June 2012 in Perth. The underlying dispute between the parties centred on the termination of an employment contract and the associated unfair dismissal claim lodged by the respondent, Clayworth. The Commission had ruled in Clayworth's favour, finding that his dismissal was indeed unfair.

The central legal issues that the court needed to address were whether the dismissal of Clayworth was harsh, unjust, or unreasonable, and if the employer had valid grounds for termination. The employer argued that the dismissal was justified due to a lack of trust and confidence in Clayworth's ability to perform his duties. Conversely, Clayworth claimed that the dismissal was unfair, asserting that he had not engaged in any misconduct warranting such action.

In delivering its judgment, the court meticulously evaluated the evidence presented by both parties. It considered the employer's justification for the dismissal and whether there was a genuine breakdown in the employer-employee relationship. The court found that the employer had not demonstrated a valid reason for terminating Clayworth's employment, and that the dismissal process lacked procedural fairness. Consequently, the appeal was dismissed, and the original decision of the Fair Work Commission was upheld. The court's ruling confirmed that Clayworth's dismissal was unfair, and he was entitled to the remedies awarded by the Commission.

Orders