Zalcom Pty Ltd T/A Zalcom v Ms Kandice Ryan
[2017] FWC 3017
•2 JUNE 2017
| [2017] FWC 3017 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Zalcom Pty Ltd T/A Zalcom
v
Ms Kandice Ryan
(C2017/2792)
| Deputy President Colman | MELBOURNE, 2 JUNE 2017 |
Appeal by Zalcom Pty Ltd - Application for a stay order.
This decision concerns an application for a stay order by Zalcom Pty Ltd (the Appellant). The stay order is sought pursuant to s.606 of the Fair Work Act 2009 (the Act) in relation to an appeal lodged against a decision of Commissioner Saunders. In that decision, the Commissioner determined that Ms Kandice Ryan (the Respondent) had been unfairly dismissed and ordered compensation in the amount of $18,323.04, less applicable taxation, to be paid to the Respondent within 21 days. The Appellant seeks a stay of the whole of the order.
Section 606(1) of the Act provides as follows:
Staying decisions that are appealed or reviewed
(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.
Principles for staying the operation of a decision or order
It is well established that, in deciding whether to exercise its discretion to grant a stay order, the Commission must first be satisfied that the appellant has an arguable case with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal.[1] In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed.[2]
These principles should be applied against the statutory framework that applies to appeals against decisions relating to unfair dismissal. Unlike appeals against decisions made under other provisions of the Act, permission to appeal a decision under Part 3-2 will only be granted if the Commission considers it to be in the public interest to do so;[3] there is accordingly a higher threshold for permission to appeal[4]. Further, to the extent that the appeal is on a question of fact, the appeal can only be made on the ground that the decision involved a significant error of fact.[5] More generally, other errors said to have been made by the first instance decision-maker must be of a kind identified by the High Court in House v R[6].
The grounds of appeal
There are two grounds of appeal. First, the Appellant’s director, Mr Zack Leaudais, contends that he was unable to attend what he describes as the ‘rescheduled’ date of the hearing before the Commission in Newcastle on 5 May 2017. At the stay hearing, Mr Leaudais submitted that Commissioner Saunders’ decision went against him because he was not in attendance to put his case. In essence, he contended that he was denied natural justice.
The second ground in the Notice of Appeal concerns ‘evidence to support the dismissal’ that is said to be relevant to Ms Ryan’s ‘attitude’. This is not a ground of appeal per se, as it does not speak to any alleged error on the part of the Commissioner. In one sense it might be considered an attempt by the Appellant to adduce further evidence. Section 607(2)(a) allows the Commission to admit further evidence, although generally it must be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing.[7] However, given the Appellant did not file or lead any evidence, the second ground of appeal is better seen as an adjunct of the first ground.
The grounds of appeal are not matters that are to be determined in this stay application. The question to be determined now is whether the order made by Commissioner Saunders on 5 May 2017 should be stayed.
Arguable case with some reasonable prospect of success
It is clear that members of the Commission are bound to act in a judicial manner and that the principles of natural justice apply to proceedings before the Commission.[8] Natural justice requires that the Commission provide parties with a reasonable opportunity to present their case. However, it does not require the Commission to ensure that a party takes the best advantage of this opportunity.[9]
On 7 March 2017, the Commission issued a Notice of Listing and Directions. The hearing was listed for 4 and 5 May 2017. The Appellant was directed to file an outline of submissions, witness statements and other documentary material. The Appellant did not file any material. On 26 April, a revised Notice of Listing and Directions were issued, allowing the Appellant until 1 May 2017 to file materials, and vacating the first day of the hearing, 4 May 2017; the matter was listed for 5 May 2017 only. Again the Appellant did not file any material.
I note that both Notices of Listing contained a note stating that the parties ‘must comply with these requirements’, and that ‘any request for an adjournment of the Arbitration Hearing or an extension of time to file material must be made prior to the hearing / compliance date and be in writing and based on substantial grounds.’
On 2 May 2017, the Commission sent an email to Mr Leaudais, noting that the Appellant had not filed any materials by the revised due date, and asking whether he intended to file any material or seek an extension of time. The message noted that the hearing on 5 May 2017 ‘will be going ahead regardless’. Later that morning, Mr Leaudais replied to this email, stating that he was ‘in Port Macquarie for work at the moment and … won’t be able to make the 5th of May are we able to reschedule? I’ll try to get some statements over this afternoon.’
The Commission responded to Mr Leaudais later that day, noting that the parties had been aware of the hearing date for almost two months and that the Commissioner was not prepared to vacate the hearing on the basis of the information contained in the email. It also stated that if Mr Leaudais did not attend the hearing on 5 May, the Commission would proceed to hear and determine the matter on the basis of the evidence adduced by the applicant.
It should be noted that the Commission has an express power to determine a matter before it in the absence of a person who has been required to attend before it.[10]
At the stay hearing, Mr Leaudais stated that he did not receive, or did not see, the Commission’s second message of 2 May 2017. However, a copy of the message is on the Commission’s file, and it is evident that it was sent to Mr Leaudais and to the Respondent. Mr Leaudais submitted that he had understood the hearing date to be 4 May 2017, and that this was the date in his diary. However, as noted above, 5 May 2017 had always been a hearing day.
At the stay hearing, Mr Leaudais further stated that he had not been able to attend the hearing on 5 May 2017 because he had an important business meeting in Port Macquarie on that day. He said that he had thought the Commission would reschedule the hearing date of 5 May. He also said that he should have taken the matter more seriously, but that the processes of the Commission were new to him.
It is not the case that Mr Leaudais was denied an opportunity to defend the unfair dismissal proceeding that was brought against his company. He was afforded that opportunity by the Notices of Listing that were sent to him two months before the hearing date, and by the two emails sent to him by the Commission on 2 May 2017. I note that the reason given by Mr Leaudais in his email of 2 May for seeking to reschedule the hearing date was hardly one ‘based on substantial grounds’, as required by the Notices of Listing. It was more a reason of convenience.
The Appellant in effect contends that he had a more compelling basis for his request to reschedule the hearing date than might have appeared from his message to the Commission on 2 May 2017. On his submission, he was not refusing to participate in the hearing, but had misunderstood the hearing dates and had subsequently scheduled an important meeting. He contends, effectively, that in the circumstances he was not afforded a reasonable opportunity to put his case.
The Appellant may be able to develop this point on appeal however I am not presently persuaded that the Appellant was denied natural justice. I am not satisfied that the Appellant has made out an arguable case, with some reasonable prospects of success as to the merit of an appeal or as to permission to appeal.
This conclusion dispenses with the stay application. However, for completeness I will address the balance of convenience.
Balance of convenience
The Appellant was not prepared to undertake to deposit the amount due to the Respondent into an interest-bearing account which would be payable in the event that the appeal was unsuccessful. The Appellant submitted that it was not able to do so.
No other balance of convenience consideration was raised. It was not contended that the Appellant would have any difficulty in recovering the amount paid to the Respondent, should the appeal be successful. In the circumstances, I am not satisfied that the balance of convenience would favour the grant of a stay.
Conclusion
The application for a stay is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms K Ryan, self-represented.
Mr Z Leaudais, self-represented.
Hearing details:
2017.
Melbourne
Newcastle (video link).
2 June.
[1] Kellow-Falkiner Motors Pty Ltd v Edghill Print S2639, 24 January 2000 at [5]; applied in Bank of Sydney Ltd v Repici[2015] FWC 5511 et al.
[2] Ibid. See also Coal and Allied Operations Pty Limited v Crawford and Others (2001) 109 IR 409 at [13].
[3] Section 400(1) of the Act
[4] WorkPac Pty Ltd v Bambach (2012) 220 IR 313; FWAFB 3206 at 14.
[5] Section 400(2) of the Act
[6] House v R (1936) 55 CLR 499
[7] Loftus v Earth Force Personnel Pty Ltd[2014] FWCFB 1978
[8] R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Viavattene v Health Care Australia [FWCFB] 2532 at [28]
[9] Viavattene, ibid, at [36], citing Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343.
[10] Section 600 of the Act
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