1
Fair Work Act 2009
s.604 - Appeal of decisions
Reliable Petroleum Pty Ltd
v
Mr Fraser Murray
(C2017/4410)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 16 AUGUST 2017
Appeal against decision [2017] FWC 3552 of Commissioner Hampton at Adelaide on 20 July
2017 in matter number U2017/1796 - application for stay order.
[1] Reliable Petroleum Pty Ltd (Reliable Petroleum) has lodged an appeal, for which
permission is required, under s.604 of the Fair Work Act 2009 (Act). The appeal is against a
decision1 and order2 of Commissioner Hampton made on 20 July 2017. In summary, the
Commissioner determined that the dismissal of Mr Fraser Murray was unfair because it was
harsh, concluded that reinstatement of Mr Murray was appropriate and ordered that Mr
Murray be reinstated to the position he occupied immediately before the dismissal.
[2] Reliable Petroleum seeks a stay of the whole of the decision and order pending the
hearing and determination of the appeal. The grant of a stay involves the exercise of a
discretion, the exercise of which is guided by a consideration of whether there is an arguable
case, with some reasonable prospect of success, in respect of both the question of permission
to appeal and the substantive merits of the appeal, together with a consideration of whether
the balance of convenience would favour the grant of a stay.
[3] Mr Murray has resumed his employment with Reliable Petroleum and is currently
completing an induction which would enable him to recommence his duties as a driver. Thus,
although the Commissioner’s order has enabled a return to work by Mr Murray, Reliable
Petroleum presses the stay application with some urgency as it does not wish Mr Murray to
resume driving duties pending the hearing and determination of the appeal. I heard the stay on
15 August 2017. At the conclusion of the hearing I indicated to the parties that given my
commitments I would not likely be in a position to deliver a decision with reasons, however I
would issue a short decision determining the stay application as soon as practicable and I
would issue reasons for that decision in due course.
[4] Reliable Petroleum also foreshadowed that it would seek leave to amend its grounds of
appeal so as to put in issue the Commissioner’s finding that reinstatement of Mr Murray was
not inappropriate, as I was not persuaded upon reading of the grounds of appeal that that
1 [2017] FWC 3552.
2 PR594531.
[2017] FWC 4244
DECISION
E AUSTRALIA FairWork Commission
[2017] FWC 4244
2
finding was challenged directly. It appeared to me that the grounds of appeal are concerned
solely with the merits consideration in the decision and not remedy. Be that as it may, I have
made my assessment as to the strength of the permission to appeal and merits of the appeal
cases on the basis of the grounds of appeal advanced in the notice of appeal and not those
which might be advanced pursuant to any amendment.
[5] I am not persuaded that Reliable Petroleum has made out an arguable case that has
some reasonable prospect of success, in respect of both the question of permission to appeal
and the substantive merits of the appeal, having regard to the additional hurdle in unfair
dismissal related appeals set out in s.400 of the Act. This assessment is necessarily carried out
without the benefit of hearing Reliable Petroleum’s full argument and without the opportunity
to undertake a thorough analysis of the case material.
[6] In the circumstances, it is not necessary for me to consider where the balance of
convenience lies, however since the issue was the subject of submissions and even if I am
wrong in my preliminary assessment, I am not persuaded that the balance of convenience
favours the grant of a stay. The applicant has returned to work, albeit undertaking an
induction rather than resuming full duties. A stay would deprive Mr Murray of income which
would flow to him necessarily as a consequence of the reinstatement order. This adverse
effect could be overcome by a partial stay, the effect of which would be to stay so much of the
order as would require Reliable Petroleum to provide work to Mr Murray, but would
otherwise require Reliable Petroleum to continue to pay wages to Mr Murray until the hearing
and determination of the appeal. Such a partial stay was not opposed by Reliable Petroleum
when I canvassed that possibility during the hearing. However, I am persuaded that a not
insignificant factor in the balance of convenience consideration is the fact that such a stay
would deprive Mr Murray of actual employment, which he has since his dismissal and until
very recently been denied, and to which he has become entitled by reason of the order. The
benefit of actual employment through the performance of work carries an intrinsic value,
which is distinct from and additional to the wages that are earned in the performance of that
work. I am not persuaded on the material before me that the matters advanced by Reliable
Petroleum shift the balance sufficiently the other way.
[2017] FWC 4244
3
[7] The application for a stay order is dismissed. The permission to appeal application was
scheduled for hearing before a Full Bench on 4 September 2017. That date has been vacated
on application by Mr Murray, which was not opposed by Reliable Petroleum. As I
foreshadowed during the hearing, I propose to schedule an alternative date for hearing at
which both the application for permission to appeal and the substantive appeal will be argued.
A Notice of Listing and Directions will be separately issued.
DEPUTY PRESIDENT
Appearances:
Ms G Walker, Counsel, on behalf of Reliable Petroleum.
Mr E Lawrie, on behalf of Mr Fraser Murray.
Hearing details:
2017.
Melbourne.
15 August.
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