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Fair Work Act 2009
s.604—Appeal of decision
Lipa Pharmaceuticals Ltd T/A Lipa Pharmaceuticals
v
Troy de Haan
(C2014/2589)
DEPUTY PRESIDENT LAWRENCE SYDNEY, 22 JANUARY 2014
Appeal against decision [2013] FWC 9928 and order PR546165 of Deputy President Booth
at Sydney on 20 December 2013 in matter number U2013/10567.
[1] This is an application by Lipa Pharmaceuticals Ltd t/a Lipa Pharmaceuticals to stay a
decision of Deputy President Booth [2013] FWC 9928 in U2013/10567 handed down on
20 December 2013. The Deputy President also issued an order (PR546165) giving effect to
that decision.
[2] The effect of the Deputy President’s decision was to reinstate Mr Troy de Haan to the
position he was employed in immediately prior to his dismissal from 23 December 2013. The
Deputy President ordered the Appellant, Lipa Pharmaceuticals to provide Mr de Haan, the
Respondent with full continuity of employment for the period from the date of his dismissal
to the date of reinstatement.
[3] The Appellant seeks to stay these two points of the Deputy President’s order. It
proposes that the balance of what the Respondent would have earned, apart from the
dismissal, from the date of the stay order, if it is in excess of his current earnings, be paid to
the Respondent. This would be consistent with points 3 and 4 of the Deputy President’s order.
[4] The appeal is listed for hearing before a Full Bench of the Fair Work Commission in
Sydney on 19 March 2014.
[5] Section 606(1) of the Fair Work Act 2009 (the Act) provides that:
“If, under section 604 and 605, FWC hears an appeal from, or conducts a review of, a
decision, FWC may (except as provided in subsection (3)) order that the operation of
the whole or part of the decision be stayed, on any terms and conditions that FWC
considers appropriate, until a decision in relation to the appeal or review is made or
FWC makes a further order.”
[6] Before a stay order is granted the Commission is required to be satisfied that an
arguable case exists and that the balance of convenience favours the granting of a stay.
The conventional test for granting a stay order was considered by Vice President Ross (as he
[2014] FWC 548
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 548
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then was) in Kellow-Faulkner Motors Pty Ltd v Edge Hill.i That approach was subsequently
confirmed by a Full Bench.ii
[7] The application for a stay order came on for hearing before me on 16 January 2014.
The Respondent did not appear. Attempts were made to contact him and the matter was
relisted for 21 January.
[8] The Respondent appeared by telephone on 21 January and did not oppose the say
being granted.
[9] It was put on behalf of the Appellant that the Deputy President erred in fact and law in
her decision. In particular, it is submitted that she misapplied the tests concerning whether
there was a genuine redundancy.
[10] I find that there is an arguable case which should be determined by the Full Bench.
[11] Given the Respondent’s consent to the stay, I also find that the balance of convenience
supports a stay being granted on the basis proposed by the Appellant and consented to by the
Respondent.
[12] An order giving effect to this decision (PR547063) accompanies this decision.
DEPUTY PRESIDENT
Appearances:
D. Mahendra of counsel, J. Murphy and E. Baxter for the Appellant;
T. de Haan, respondent by telephone.
Hearing details:
2014
Sydney:
January 16, 21.
Printed by authority of the Commonwealth Government Printer
Price code A, PR547058
i Print S2639
ii Print S4216
AIR WOR PITHE AUSTRALIA SEAL NOISSIW THE
