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…

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: [2012] FWA 9553
Decision Date: 9 NOVEMBER 2012

CaseChat Overview and Summary

Vondoo Hair, the appellant, sought to appeal against a decision made by the Fair Work Commission (FWC) in the Federal Circuit Court of Australia. The original decision, made by Deputy President Sams, dismissed the employer's appeal against an earlier decision made by the FWC on 9 October 2012. The matter in dispute involved the dismissal of an employee, Mr. Crockett, and the subsequent appeal by the employer regarding the dismissal.

The central legal issue the court had to decide was whether the appeal against the FWC's decision should be allowed. The appellant, Vondoo Hair, argued that the FWC had made an error in its determination of the dismissal's fairness. The court needed to assess whether the appeal was valid and whether the FWC's decision should be overturned or affirmed based on the evidence and arguments presented.

The Federal Circuit Court examined the arguments presented by both parties and the merits of the appeal. The court found that the employer had not successfully demonstrated that the FWC had made an error in its determination. The court upheld the FWC's decision, affirming that the dismissal was fair and reasonable under the circumstances. Consequently, the appeal was dismissed, and the original decision by the FWC remained in effect.

The final orders of the court were that the appeal against the decision of the FWC be dismissed, and the order PR529691 of Deputy President Sams at Sydney on 9 October 2012 in matter number U2012/8050 be affirmed. The stay application was also declined, maintaining the status quo until any further appeals or proceedings.

Orders