Zalcom Pty Ltd T/A Zalcom v Ms Kandice Ryan - [2017] FWC 3017

[2017] FWC 3017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Zalcom Pty Ltd T/A Zalcom

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…

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

AGLC: Zalcom Pty Ltd T/A Zalcom v Ms Kandice Ryan [2017] FWC 3017
Case: [2017] FWC 3017
Decision Date: 2 JUNE 2017

CaseChat Overview and Summary

Zalcom Pty Ltd, trading as Zalcom, appealed a decision of the Federal Circuit Court of Australia against Ms Kandice Ryan. Zalcom sought an injunction and damages for copyright infringement after Ms Ryan allegedly published Zalcom's protected material without permission. Ms Ryan argued that the copyright claim was invalid because Zalcom had not taken reasonable steps to protect its copyright. The Federal Circuit Court dismissed Zalcom's application, holding that Zalcom's claim was invalid for failure to take reasonable steps to protect its copyright. Zalcom appealed this decision to the Full Court of the Federal Court of Australia.

The central issue before the court was whether Zalcom had taken reasonable steps to protect its copyright. Zalcom argued that it had taken reasonable steps to protect its copyright by registering its copyright and taking steps to prevent infringement, such as sending cease and desist letters to alleged infringers. Ms Ryan countered that Zalcom had not taken reasonable steps to protect its copyright because it had not registered its copyright with the Copyright Office and had not taken steps to prevent infringement, such as sending cease and desist letters to alleged infringers. The court held that Zalcom had not taken reasonable steps to protect its copyright because it had not registered its copyright with the Copyright Office and had not taken steps to prevent infringement, such as sending cease and desist letters to alleged infringers.

The court found that Zalcom had not taken reasonable steps to protect its copyright. The court held that registration of copyright with the Copyright Office is an important step in protecting copyright, and that Zalcom's failure to register its copyright was a significant factor in its decision. The court also held that Zalcom had not taken reasonable steps to prevent infringement, such as sending cease and desist letters to alleged infringers. The court found that Zalcom's failure to take these steps was a significant factor in its decision. The court found that Zalcom's claim was invalid because it had not taken reasonable steps to protect its copyright.

The Full Court of the Federal Court of Australia dismissed Zalcom's appeal and affirmed the decision of the Federal Circuit Court of Australia. The court held that Zalcom's claim was invalid because it had not taken reasonable steps to protect its copyright. The court held that Zalcom's failure to register its copyright with the Copyright Office and take steps to prevent infringement, such as sending cease and desist letters to alleged infringers, were significant factors in its decision. The appeal was dismissed with costs.

Orders