1
Fair Work Act 2009
s.604 - Appeal of decisions
Supreme Caravans Pty Ltd
v
Mr Hung Pham
(C2013/5106)
VICE PRESIDENT HATCHER SYDNEY, 17 JULY 2013
Application for a stay of order PR538813 of Commissioner Ryan at Melbourne on 10 July
2013 in matter number U2012/9893.
[1] Supreme Caravans Pty Ltd (the appellant) has filed an appeal, for which permission is
required, under s.604 of the Fair Work Act 2009, against a decision1 and orders2 of
Commissioner Ryan issued on 10 July 2013. The orders were in the following terms:
“1. Pursuant to s.391(1) of the Fair Work Act 2009 (the Act) the Respondent, Supreme
Caravans, shall reinstate the Applicant, Mr Hung Pham, to the position he was
employed in immediately before his dismissal.
2. Pursuant to s.391(2) of the Act, Mr Pham’s employment with Supreme Caravans
shall be taken as continuous from the date of dismissal to his reinstatement.
3. Pursuant to s.391 (3) and (4) of the Act, Supreme Caravans shall pay to Mr Pham, all
remuneration, including superannuation, he would have earned from the date of
dismissal to his reinstatement less an amount of $1,700.00, the amount calculated
pursuant to s.391(4)(a) and (b).”
[2] It can be seen that the orders have, essentially two elements: a reinstatement order,
with an associated order for continuity of employment, and a back-pay order. The appellant
seeks a stay of all those orders pending the hearing and determination of its appeal.
[3] The history of this matter requires a short recitation. Mr Hung Pham was dismissed
from his employment by the appellant on 3 October 2012, for the reason that he had allegedly
during working time taken a piece of checker plate, used company machinery upon it for a
personal project, and then removed it from the company’s premises. Mr Pham filed an unfair
dismissal application, which was the subject of a hearing before Commissioner Ryan on 7
March 2013. At the end of that hearing, the Commissioner issued on transcript an ex tempore
decision in which he found that there was no valid reason for the dismissal of Mr Pham and
that the dismissal was “harsh, unjust or unreasonable”. In his reasons, the Commissioner
made a finding that Mr Pham had not intended to steal the piece of checker plate, but had only
1 [2013] FWC 4561
2 PR538813
2013 FWC 4766
DECISION
AUSTR FairWork Commission
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intended to take it once he had obtained permission to do so. He also found, in accordance
with Mr Pham’s own admissions, that Mr Pham had used company equipment to work on the
checker plate in company time for a short period, but that this misconduct did not justify
dismissal. The Commissioner indicated that he would list the matter for a separate hearing on
remedy. He issued a formal decision on 12 March 2013 incorporating his earlier reasons given
in transcript.3
[4] The appellant then filed an appeal against the Commissioner’s decision. In a decision
issued on 22 May 20134, a Full Bench refused permission to appeal. The file was then
returned to Commissioner Ryan to determine the outstanding question of remedy.
[5] The Commissioner conducted the hearing on remedy on 14 June 2013. At that hearing,
the appellant attempted to adduce an extensive amount of evidence going to alleged
misconduct on the part of Mr Pham. The Commissioner determined that most of that evidence
would not be admitted. As earlier indicated, the Commissioner’s decision and orders as to
remedy were issued on 10 July 2013.
[6] In the decision under appeal, the Commissioner dealt with contested evidence about
whether a complaint lodged with the Police by the appellant concerning alleged theft by Mr
Pham was going to lead to any action being taken by the Police which would render the
restoration of the employment relationship impracticable. The Commissioner stated the
following conclusions with respect to this matter:
“[29] The unsworn evidence of Mr Markovic is that he has made a complaint to the
police and that he was advised by the police that they will be proceeding and will
lodge formal charges against the Applicant. Against this is the sworn oral evidence of
the Applicant where he identified that the police had contacted him and asked the
Applicant to come and see them. The Applicant didn’t visit the police and they
contacted a second time and “they said it’s not really important, but if we do want to
speak with you, we will contact you again”. The Respondent didn’t challenge the
truthfulness of this evidence from the Applicant.
[30] The submission made by Mr Addison for the Respondent that “should the police
not charge, the company will pursue civil charges against Mr Pham” was a matter that
was not contained in the filed written submissions of the Respondent nor was it
contained in the witness statement of Mr Markovic. The submission on potential civil
action has all the appearances of the Respondent trying, on the run, to bolster its case
as to loss of trust and confidence.
[31] I have no doubt that Mr Markovic is maintaining his rage against the Applicant
whilst these proceedings are underway even to the extent of introducing a threat to take
civil action against the Applicant.
[32] Mr Markovic’s complaints of theft made to the police and his threat of civil action
against the Applicant relate to items which only came to the attention of Mr Markovic
through the open and honest evidence of the Applicant and in circumstances where the
Applicant has given sworn evidence as to how those items came into his possession.
3 [2013] FWC 1559
4 [2013] FWCFB 3016
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[33] It would appear from the Applicant’s evidence that the police are not pursuing the
complaint made by Mr Markovic with the earnestness with which Mr Markovic
attributes to the police.”
[7] Having considered the evidence of three of the appellant’s managers and supervisors
that they no longer had trust and confidence in Mr Pham, the Commissioner came to the
following ultimate conclusions concerning remedy:
“[37] In the circumstances where Mr Markovic is not directly supervising the Applicant
but has two layers of supervision between the Applicant and himself I am of the very
strong view that the expressed attitudes of Mr Karadulev and Mr Jacobs are no real
impediment to the reestablishment of a productive and viable employment relationship
between the Applicant and the Respondent. Mr Markovic’s complaint that “I would be
forced to make sure that the supervisors spent considerable time monitoring him to
ensure compliance with company rules” could, in all of the circumstances of this
matter, be an initial positive move to overcome the degree of irrationality in Mr
Markovic’s assessment of the level of trust and confidence between himself and the
Applicant.
[38] The proven misconduct of the Applicant relates to using a company machine
during work hours for personal benefit. This is not sufficient to prevent reinstatement
being an appropriate remedy.
[39] Having considered all of the circumstances of this matter I am satisfied that
reinstatement is appropriate.”
[8] The principles concerning the determination of stay applications in appeals are well-
established. They are as stated in Edghill v Kellow-Faulkner Motors Pty Ltd5:
“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.”
[9] In respect of the first criterion, the Commission in determining a stay application must
assess the strength of the appellant’s case without the benefit of hearing the appellant’s full
argument and usually without the opportunity to undertake a full analysis of the case
materials. For that reason it is necessarily a preliminary assessment only. The appellant’s
notice of appeal contains six substantive grounds, and identifies five reasons why permission
to appeal should be granted. At the hearing of its stay application, the appellant’s solicitor
quite properly focused on two grounds. Firstly, the appellant submitted, the Commissioner’s
decision not to admit most of the evidence which it wished to adduce at the hearing on
remedy amounted to a denial of procedural fairness to the appellant and a constructive failure
to exercise jurisdiction. I am not persuaded that this ground is sufficiently arguable that it has
reasonable prospects of success.
5 [2000] AIRC 785, Print S2639 at [55]
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[10] Secondly, the appellant submitted that the Commissioner erred in finding, in
circumstances where “a police investigation is underway” and where the appellant had
substantial grounds to challenge Mr Pham’s honesty, that a productive and viable relationship
could be re-established such as to make reinstatement a practicable remedy. I do not assess
this as being a strong argument at this point, but I think it is arguable and has reasonable
prospects of success (including on the question of the grant of permission to appeal).
[11] As to the balance of convenience, the appellant submitted that the grant of a stay in an
appeal against a reinstatement order was the “normal” or “usual” course. I reject this
submission. It is always the case that an applicant for a stay, even of a reinstatement order,
must positively satisfy the Commission that the balance of convenience favours the grant of a
stay. That there is no prima facie position in favour of the stay of a reinstatement order was
made clear by the Full Bench in Edwards v Telstra Corporation Limited6:
“We only wish to note that previous Commission decisions have suggested that where
the intervention of the Commission has imposed an obligation or duty on a party then
prima facie the balance of convenience would favour a stay being granted. One reason
why such an approach has been adopted is that the creation of a requirement to pay
monies under an award which is subsequently quashed gives rise to the practical
difficulty of recovering monies paid to what may be a large number of employees
covered by the relevant award. It seems to us that the difference in approach to the
granting of stay orders between that taken by the Commission and the general Courts
arises from the fact that the Commission is generally making or varying awards which
apply to a large number of employers and employees. The same problem does not arise
in respect of an order under s.170CH which is directed at an individual applicant...
In our view previous statements about the prima facie position favouring the granting
of a stay require reconsideration in the context of s.170CH orders providing for a
remedy following a decision that a termination was harsh, unjust or unreasonable. In
this regard we note that in Re Thiess Watkan's White Group and others [Print J0194,
14 November 1989 per Maddern P, Moore DP and Smith C] the Commission said:
.... These appeals are made on the basis that the result obtained by the
FEDFA was obtained unfairly. Without canvassing the merits of the
appellants' cases it appears there are issues that warrant fuller consideration
by a Full Bench and that should occur, in our view, on the basis that the
various orders and awards are stayed pending the hearing of these appeals.
We reach this conclusion with the knowledge that the appeals will shortly be
listed for hearing next month and are likely to be dealt with expeditiously.
This factor is especially important in considering whether to stay the
reinstatement order made by the Commissioner where employees' incomes
are affected by the granting of such a stay. It may be that in a case where
there is no apparently substantial challenge to the jurisdiction of the
Commission to make an order for reinstatement, the Commission should be
cautious about staying the operation of a reinstatement order even if an
undertaking was given of the type given by the employer in these
proceedings.”
6 [1998] AIRC 679, Print Q2467
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[12] The appellant submitted that the reinstatement order should be stayed because, so far
as it was concerned, the respondent was a dishonest person who had committed theft in the
past and had breached occupational health and safety requirements. The problem with this
submission is that the Commissioner made no findings to support those assertions. Nor was I
directed to any evidence on the record which would permit me to make my own findings to
that effect. The highest it gets in favour of the appellant is that the Commissioner found in his
first decision that Mr Pham had undertaken a personal project in company time and using
company equipment (for a short period), and that Mr Pham had voluntarily disclosed in his
evidence that he had taken home pieces of metal on previous occasions with permission.
Neither of these matters prevented the Commissioner from finding that there was no valid
reason for Mr Pham’s dismissal and that the dismissal was harsh, unjust or unreasonable -
findings which are not open to challenge in this appeal. The matters raised by the appellant
amount to no more than the findings which the appellant wished that the Commissioner had
made, on the basis of evidence it sought to adduce at the hearing on remedy but which was
not admitted and is consequently not properly before me. That is not a proper foundation for
the grant of a stay application.
[13] The appellant also relied upon the alleged police investigation into Mr Pham which
was discussed in the Commissioner’s decision as earlier set out. Having regard to the
Commissioner’s conclusions, and given that I was advised that there have been no further
developments in this matter since the hearing on remedy occurred over a month ago, I am not
inclined to attach any significant weight to this.
[14] The appellant further relied upon the evidence which was admitted by the
Commissioner at the remedy hearing to the effect that three of its managers and supervisors
did not have trust or confidence in Mr Pham. Even though that evidence must be characterised
as subjective in nature, it must be given some weight in the context of a consideration of
whether the employment relationship should be continued. However, there are two unusual
features of this case which must also be given weight. The first is that, as earlier stated, this
appeal involves a challenge to remedy only, so that it is necessarily a starting premise for my
consideration of this stay application that there was no valid reason for Mr Pham’s dismissal
and that his dismissal was, to use the general rubric, unfair. The second is that it was a fact
agreed between the parties that, in accordance with the Commissioner’s order, Mr Pham
actually returned to work on 12 July 2013. The grant of a stay order would therefore change
what is now the status quo. There was no evidence of any difficulty associated with Mr
Pham’s return to work (beyond a contested assertion from the bar table that Mr Pham was
under “close supervision”), although of course only a few days have passed since this
occurred.
[15] I initially considered that a stay of the reinstatement order might be granted on the
condition that the appellant be required to pay Mr Pham the wages he would otherwise have
earned had he stayed in employment, pending the hearing and determination of the appeal.
This would give him the benefit of income over the interim period, in circumstances where
the evidence before Commissioner Ryan demonstrated that he had suffered financial and
personal hardship because of a lack of income resulting from his dismissal. However, as Mr
Pham’s representative properly reminded me, such an order would deprive the respondent of
the benefit of actual employment - something he has substantially been denied since he was
dismissed. I accept that the capacity to work in one’s chosen occupation has an intrinsic value
to most individuals which is separate and distinct from the benefit of the remuneration
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received for the performance of such work. In Blackadder v Ramsey Butchering Services Pty
Ltd7 Kirby J described this as “the satisfaction of employment, the feeling of self-worth that it
can generate and the maintenance of ... skills to which their exercise would contribute”. In the
context of an application to stay a reinstatement order, this is a matter which must be
accounted for at least to some degree in the weighing of the balance of convenience.
[16] Ultimately, I have not positively been satisfied that the balance of convenience favours
a stay of the reinstatement order. I will not therefore grant the appellant’s application in this
respect at this time. However, I will grant the appellant liberty to apply to renew its
application for a stay of the reinstatement order if some tangible difficulty arises with respect
to Mr Pham’s continuing employment prior to the hearing and determination of the appeal.
[17] With respect to the order for back-pay, I am persuaded that the balance of convenience
favours the grant of a stay. The amount required to be paid, although not yet quantified, is
likely to be reasonably substantial. Mr Pham’s financial hardship, to which I have earlier
referred, raises a question as to his capacity to repay that amount if a stay is not granted and
the appellant’s appeal is ultimately successful. The stay will be subject to the condition that
the amount required to be paid is to be quantified and deposited by the appellant into an
interest-bearing account pending the hearing and determination of the appeal. I will issue a
separate order8 to this effect.
VICE PRESIDENT
Appearances:
M. Addison, Solicitor, for the Appellant
J. Maloney for the Respondent
Hearing details:
2013.
Sydney:
16, July
Printed by authority of the Commonwealth Government Printer
Price code C, PR539019
7 (2005) 221 CLR 539 at 549 [32]
8 PR539042
WORK COMMISSION -- AUSTRALIA THE SEAL OF FA
