Vondoo Hair v Crockett

[2012] FWA 9553

[2012] FWA 9553

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Vondoo Hair T/A Vondoo Hair
v
S Crockett
(C2012/5783)

SENIOR DEPUTY PRESIDENT WATSON SYDNEY, 9 NOVEMBER 2012

Appeal against decision [2012] FWA 8300 and order PR529691 of Deputy President Sams at Sydney on 9 October 2012 in matter number U2012/8050 - stay application declined.

[1] This is an application by Vondoo Hair T/A Vondoo Hair (the Appellant) for an order staying the order of 9 October 2102 1 by Deputy President Sams. The Deputy President ordered the Appellant to pay compensation of $3,344 to S Crockett (the Respondent) giving effect to his decision of 9 October 2102,2 which determined an application by the Respondent, pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of her employment by the Appellant. The stay order is sought pending the determination of an appeal against the decision and order of Deputy President Sams.

[2] The application for the grant of a stay order is to be determined on the basis recorded in the decision of a Full Bench of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd and P Edghill, 3 as follows:

“[5] 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.

[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.” [references omitted]

[3] The appeal grounds raised by the Appellant are entirely directed to alleged error by the Deputy President in relation to conclusions reached by him on the evidence. The appeal is concerned with the making of a discretionary decision and is subject to the approach in House v The King. 4 Further, since the appeal rests on questions of fact, it is subject to the additional requirements in respect of an appeal in relation to matters under Part 3-2 of the Act, that it is in the public interest to grant permission to appeal and the decision involved a significant error of fact,5 in addition to the conventional considerations in s.604 of the Act.

[4] It follows that in the current appeal, 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 requires the establishment of an arguable case that it is in the public interest to grant permission to appeal and the decision of Deputy President Sams involved a significant error of fact.

[5] The central issue raised in the appeal is that Deputy President Sams erred in his finding that the Respondent’s conduct was the passing on to another employee (Ms Ballesty) of information about a client’s formula, believing that the client had already left the Appellant’s business and characterisation of this conduct as an irresponsible and unacceptable “error of judgment”, rather than finding that the Respondent was engaged in serious misconduct, in that she was aware of Ms Ballesty’s client “poaching” and failed to inform her employer and, as the Appellant contended, was engaged in theft from the Respondent.

[6] I am not satisfied that the Appellant has established an arguable case that the Deputy President made a significant error of fact, having regard to the evidence before him, in characterising the conduct of the Respondent in the way he did. The evidence before Deputy President Sams involved conflicting evidence of Mr Vaman and Ms Dwyer. The evidence of Ms Dwyer 6 (prepared as a joint statement of six employees) was that the Respondent was aware that Ms Ballesty had stolen client information and failed to advise the Appellant. Mr Vaman’s evidence7 (prepared as a joint statement with Mr Goodland) is that Ms Dwyer and the other employees moved from the area in which the conversation with the Respondent occurred “so they couldn’t hear or see what was happening” before the statements attributed to the Respondent in Ms Dwyer’s evidence were said.8 Mr Vaman’s account by way of submission was different again in an answer to a question from Deputy President Sams.9 It involved no suggestion that the Respondent accepted that she has done anything wrong.

[7] Against that Deputy President Sams heard direct evidence from the Respondent that she was not aware that Ms Ballesty was taking client information 10 and direct evidence of Ms Ballesty that the Respondent had not passed client information and she had not asked the Respondent to do so. Further, the Deputy President was entitled to decline to draw the inference sought by the Appellant from the fact that the Respondent had a private business card, having regard to the evidence as a whole. On that evidence, I am not satisfied that it is arguable that the conclusions reached by Deputy President Sams involved significant error.

[8] The Appellant also suggested that Deputy President Sams erred in determining the level of compensation ordered. The Deputy President clearly considered the evidence of the Appellant as to its financial situation 11 and considered that matter against the other statutory matters he was required to have regard to in determining compensation. I am not satisfied that an arguable case has been established by the Appellant in respect of the remedy ordered.

[9] Nor am I satisfied that an arguable case has been made out in respect of the public interest. The public interest grounds raised by the Appellant rest entirely on the proposition that Deputy President Sams erred in reaching his decision, a proposition which has not been made good, even at the level of an arguable case, in the stay hearing.

[10] In its appeal notice, the Appellant suggested bias in the decision of Deputy President Sams. There is absolutely nothing within the submissions of the Appellant or the materials in the appeal which lends any support to the proposition of bias on the part of Deputy President Sams in either the legal sense 12 or a more general sense.

[11] Since I am not satisfied that there is an arguable case, with some reasonable prospect of success, in respect of either the question of leave to appeal and the substantive merits of the appeal, it is unnecessary to consider the balance of convenience. I decline to make an order staying the 9 October 2102 order of Deputy President Sams.

[12] The appeal proper will be listed before a Full Bench for determination in due course.

SENIOR DEPUTY PRESIDENT

Appearances:

G Vaman and C Goodland, for the Respondent

Hearing details:

2012.

Sydney:

November 7.

 1   PR529691.

 2   [2012] FWA 8300.

 3   Print S4216, at para 4. See also Print S2639 at para 5.

 4 (1936) 55 CLR 499.

 5 Section 400 of the Fair Work Act 2009.

 6   Exhibit C, before Deputy President Sams.

 7   Exhibit A, before Deputy President Sams.

 8   Exhibit C, at paras 16 and 17 and Transcript at para 410, before Deputy President Sams.

 9   Transcript, at paras 410 and 411, before Deputy President Sams.

 10   Transcript, at para 120, before Deputy President Sams.

 11   [2012] FWA 8300, at para 63.

 12   Livesey v The New South Wales Bar Association, (1983) 151 CLR 288 at 293-294, 20 May 1983, Mason, Murphy, Brennan, Deane, Dawson JJ and Webb and Another v The Queen, (1994) 181 CLR 41 at 74, 30 June 1994, Mason CJ, Brennan, Deane, Toohey, McHugh JJ per Deane J.

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