1
Fair Work Act 2009
s.604—Appeal of decision
Jetstar Services Pty Ltd
v
Laeth Ishak
(C2013/5211)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 2 AUGUST 2013
Appeal against decisions [[2013] FWC 2959] and [[2013] FWC 4794] of Commissioner
Ryan at Melbourne on 10 May 2013 and 19 July 2013 and order [PR539125] on 19 July
2013 in matter number U2013/5656.
[1] Mr Laeth Ishak (Respondent) was dismissed from his employment with Jetstar
Services Pty Ltd (Appellant) following an investigation into an altercation with another
employee, Mr Samson. The Respondent applied for an unfair dismissal remedy and the matter
was heard by Commissioner Ryan. On 9 May 2013 the Commissioner decided that the
dismissal of the Respondent was harsh because of the differential treatment the Appellant had
accorded to the Respondent when compared to Mr Samson1. The Commissioner listed the
matter for further hearing on the question of remedy. On 19 July 2013 the Commissioner
determined that reinstatement of the Respondent was appropriate2 and issued an order for
reinstatement together with an order maintaining continuity of service of the Respondent and
the restoration of part of the remuneration lost by the Respondent because of the dismissal3.
[2] The Appellant filed a notice of appeal against the decisions on 19 July 2013 and on
22 July 2013 it filed an amended notice of appeal. The Appellant also sought a stay of the
whole of the order for reinstatement. The Appellant did not seek an extension of time within
which to lodge the appeal, a point raised by the Respondent, the significance of which I deal
with later in these reasons. I heard the application for a stay of the Commissioner’s order on
23 July 2013 and I stayed the order subject to conditions. These are my reasons for doing so.
Principles for staying the operation of a decision or order
[3] A person aggrieved by a decision made by a single member of the Commission may
only appeal a decision with the permission of the Commission4. Unlike appeals against
decisions made under other provisions of the Fair Work Act 2009 (Act), permission to appeal
a decision related to an unfair dismissal remedy will only be granted if the Commission
1 Edited reasons for the decision were published by the Commissioner on 10 May 2013; see [2013] FWC 2959
2 [2013] FWC 4794
3 PR539125
4 Section 604(1)
[2013] FWC 5254
DECISION
E AUSTRALIA FairWork Commission
[2013] FWC 5254
2
considers it to be in the public interest to do so5. If an error of fact is said to have been made
by the first instance decision-maker in an unfair dismissal remedy related decision, an appeal
will only be available if that error of fact is a significant error of fact6. More generally, other
errors said to have been made by a first instance decision-maker must be of a kind identified
in House v King7.
[4] The principles that are to be applied in considering whether to grant a stay order
should be applied against the statutory constraints on appeals of this kind. Moreover, this
tribunal and its predecessor have approached applications for a stay on the basis that, unless
otherwise established, there is a presumption that the order or decision that is subject to
appeal has been regularly made8.
[5] It is well established that in deciding whether to exercise a discretion to grant a stay
order, the Commission must first be satisfied that there is an arguable case with some
reasonable prospects of success, both in respect of permission to appeal and the merits of the
appeal, and that the balance of convenience favours the granting of a stay order9. This is
accepted by the Appellant10.
The grounds of appeal
[6] The Appellant’s grounds of appeal are lengthy, but for present purposes they may be
broadly summarised as follows:
The Commissioner fell into error in finding that during the altercation, although
Mr Samson engaged in defensive conduct in forcing the Respondent to release his
grip on Mr Samson’s arm, Mr Samson’s subsequent act of pushing the Respondent
away was an offensive act for the purpose of striking the Respondent. In so finding
the Commissioner committed a significant error of fact;
The Commissioner fell into error in finding that Mr Samson assaulted the
Respondent and was not honest in his dealings with the investigators. In doing so the
Commissioner committed a significant error of fact;
The Commissioner fell into error in finding that there had been differential treatment
as between the Respondent and Mr Samson and in doing so the Commissioner did
5 Section 400(1)
6 Section 400(2)
7 (1936) 55 CLR 488; Note also the reference in the Explanatory Memorandum (EM) to the Fair Work Bill 2008 at [2320] to
the decision in Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 referring to the application of House v
King to appeals in the AIRC, and the intention expressed in the EM to maintaining this jurisprudence in relation to FWA
appeals.
8 Section 400(2)
9 Kellow-Falkiner Motors Pty Ltd v Edghill, Full Bench AIRC, 17 March 2000 (Print S4216) and applied in this tribunal see
for example Boom Logistics Limited v Bell and Mackay, [2013] FWC 1017 per Boulton J, GM Holden Ltd v Symonds,
[2013] FWC 332 per Smith DP, Vondoo Hair v Crockett, [2012] FWA 9553 per Watson SDP, Vita Property Group Pty
Ltd v Clayworth, [2012] FWA 6547 per Drake SDP, DesignInc (Sydney) Pty Limited v Xu, [2012] FWA 1088 per Watson
SDP and Suncorp Staff Pty Limited v Brewer, [2012] FWA 823 per Boulton J
10 see Appellant's outline of submissions in support of its application stay, 23 July 2013 at [4]
[2013] FWC 5254
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not correctly apply the principles set out in Australian Postal Corporation v
Rushiti11;
The Commissioner fell into error in giving insufficient weight to his conclusion that
the Respondent had a valid reason and had accorded procedural fairness to the
Respondent in dismissing him;
The Commissioner fell into error in making an adverse finding against Mr Samson
without putting those matters to Mr Samson during the course of his evidence and
then in relying upon those findings in reaching his conclusion that the dismissal of
the Respondent was harsh; and
The Commissioner fell into error in concluding, against the weight of evidence, that
reinstatement of the Respondent was appropriate.
Arguable case with some reasonable prospect of success
[7] I am satisfied that the Appellant has made out an arguable case with some reasonable
prospect of success, both in respect of the grant of permission to appeal and the merits of the
appeal. To the extent that the Appellant says that the Commissioner erred in his findings that
Mr Samson engaged in offensive conduct constituting an assault and was dishonest during the
investigation into the Respondent’s conduct, I am satisfied there is an arguable case that these
findings constitute a significant error of fact. I am also satisfied that as a consequence, the
Appellant has made out an arguable case with some reasonable prospects of success, both in
respect of permission to appeal and the merits of appeal, that the Commissioner below acted
on a wrong principle in relation to his assessment and application of differential treatment of
the Respondent compared to Mr Samson. Consequently I am satisfied that there is an arguable
case with some reasonable prospects of success that the Commissioner fell into error in
concluding that the dismissal of the Respondent was harsh.
[8] It seems to me plainly arguable that the pushing motion engaged in by Mr Samson
following his defensive manoeuvre which resulted in the Respondent releasing his grip of
Mr Samson’s arm, was part of that same defensive motion and not, as the Commissioner
found, designed for the purpose of striking the Respondent and therefore an assault on the
Respondent by Mr Samson. It is also arguable that this error is further compounded in the
apparent failure to put the allegation of assault to Mr Samson during the course of the
proceedings. It is arguable therefore that the Commissioner fell into error in making that
finding.
[9] Based on the material before me it is difficult to reconcile the finding of dishonesty on
the part of Mr Samson in the course of the investigation into the Respondent’s conduct
against the apparent failure to put the allegation of dishonesty to Mr Samson during the
course of the proceedings.
[10] As the findings of assault and dishonesty seem to have formed the basis of the
Commissioner’s conclusion that there was differential treatment12 of the Respondent when
compared to Mr Samson, it is also arguable that the Commissioner erred in his conclusion that
11 [2012] FWAFB 7423
12 [2013] FWC 2959 at [32]
[2013] FWC 5254
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there was differential treatment and consequently did not correctly apply that principle.
Further, as the finding that there was differential treatment seems to have been the operative
or at least a substantial reason for the Commissioner’s finding that the dismissal was harsh13,
it follows that there is an arguable case that the Commissioner erred in concluding that the
dismissal was harsh.
[11] I am mindful that in applications of this kind the stronger the arguable case advanced,
the less reliance need be placed on exceptionally strong balance of convenience factors in
order to warrant the grant of a stay order. Conversely the weaker the arguable case, the
stronger must be the balance of convenience. In this case, I do not put the matter as highly as
did the Appellant, namely that it has a strong arguable case on appeal, however I am
persuaded, on the material before me at this interlocutory stage, there is a seriously arguable
case in relation to the matters identified above. As to the question of public interest, I am
satisfied, given the nature of the arguable errors discussed above, that the Appellant has also
made out an arguable case with some prospects of success in persuading a Full Bench that it
should be granted permission to appeal.
Balance of convenience
[12] As to the balance of convenience consideration, I have indicated earlier in these
reasons, that this tribunal and its predecessor have approached applications for a stay on the
basis that, unless otherwise established, there is a presumption that the order or decision that
is subject to appeal has been regularly made14. Prima facie therefore, the Respondent is
entitled to the benefit of the order for reinstatement. I place significant weight on the fact that
the Respondent was successful below and should generally be entitled to the benefit of the
outcome of his unfair dismissal application. That benefit should not be taken away lightly,
even on an interlocutory basis.
[13] Balanced against this must be the legitimate concern of the Appellant that
reinstatement of the Respondent will place the Appellant in a difficult position, both in
respect of the financial contribution that it needs to make for back-pay, the cost associated
with recovery should it be successful on appeal, and the cost in maintaining the Respondent’s
ongoing wages. I also take into account that Mr Samson seems to have a real and appreciable
concern about his welfare should the Respondent return to the workplace given the earlier
altercation. Mr Samson’s concerns might be overcome by some reorganisation of shifts, but
not without inconvenience to the Appellant. Although the Respondent submitted that he
would, pending the determination of the appeal, be prepared to accept another position with
the Appellant where there was no contact with Mr Samson15, this does not address the first
mentioned concern nor does it address the cost and inconvenience that would be imposed on
the Appellant by such an alteration to the terms of the reinstatement order.
[14] I note the undertaking offered by the Appellant that it will, if a stay was granted, pay
into an interest-bearing account both the sum ordered by way of lost remuneration, together
with the amounts that would otherwise have been payable to the Respondent as and when
those payments are due, pending the hearing and determination of the appeal. If it is
13 [2013] FWC 2958 at [34]
14 See for example Kellow-Falkiner Motors Pty Ltd v Edghill, Full Bench AIRC, 17 March 2000 (Print S4216) at [6]
15 Transcript PN281 – PN287
[2013] FWC 5254
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unsuccessful it would pay the balance in the account to the Respondent. This is not an
insignificant matter to weigh in the balance.
Other matters
[15] The Respondent submitted that the Appellant’s appeal against the first decision of
Commissioner Ryan delivered on 10 May 2013 was not lodged within the time prescribed
under the rules. This is not a matter that I need to decide in determining whether to grant a
stay, but I express the view at this interlocutory juncture, on the basis of the submissions put
by the parties, that I do not presently find the argument persuasive. This is a matter that the
Respondent may properly pursue before the Full Bench. In any event I note that, although the
Appellant has not sought an extension of time within which to lodge the appeal, should such
an extension be necessary the Appellant may apply for it.
[16] The Appellant also sought leave to amend the name of the Appellant to “Jetstar
Services Pty Ltd”. This course was not opposed by the Respondent. I granted leave
accordingly.
Conclusion
[17] Taking all of these matters discussed above into account, and mindful that the appeal
will be listed in reasonably short compass, some six weeks or so, although this matter is finely
balanced, I am satisfied that I should make an order staying the operation of the order of the
Commissioner and I will make an order that pending the hearing and determination of this
appeal or further order, that the order of Commissioner Ryan in PR539125, be stayed.
[18] I will also make an order that the Appellant pay into an interest-bearing account the
sum ordered by way of lost remuneration, together with the amounts that would otherwise
have been payable to the Respondent as and when those payments are due, and that such sums
be paid to the Respondent in the event the Appellant is unsuccessful in its appeal.
[19] An order giving effect to my decision has already been issued in PR539291.
DEPUTY PRESIDENT
Appearances:
J. Tracey of Counsel with C. Best for Jetstar Services Pty Ltd.
W. Baarini for the Transport Workers’ Union of Australia.
AIR ORK COMMISSION --------- SEAL AUSTRALIA THE
[2013] FWC 5254
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Hearing details:
2013.
Melbourne:
July 23.
Printed by authority of the Commonwealth Government Printer
Price code C, PR539642
