1
Fair Work Act 2009
s.604 - Appeal of decisions
City of Stirling
v
Mr Kevin Emery
(C2018/843)
DEPUTY PRESIDENT COLMAN MELBOURNE, 22 FEBRUARY 2018
Appeal against decision [2018] FWC 914 of Deputy President Binet at Perth on 9 February
2018 in matter number U2017/2986 – stay of decision
[1] This decision concerns an application for a stay order by the City of Stirling. The stay
is sought pursuant to s.606 of the Fair Work Act 2009 (the Act) in relation to an appeal
against a decision of Deputy President Binet. In that decision, the Deputy President
determined that Mr Kevin Emery had been unfairly dismissed. She ordered that Mr Emery be
reinstated and paid lost remuneration from the date of dismissal within 14 days, namely by 23
February 2018.
[2] The City of Stirling seeks a stay of the whole of the order of Deputy President Binet.
The practical effect of a stay would be to suspend the obligation to reinstate Mr Emery and
pay lost remuneration until the appeal in this matter is determined.
[3] I heard the stay application on the evening of 21 February 2018. I granted permission
to appear to the representatives who had represented the parties in the unfair dismissal
proceedings. Mr Emery’s representative did not consent to the stay, but did not present
argument in opposition to the proposition that the appeal grounds disclosed an arguable case
of error. As discussed below, the balance of convenience was not in contest. Nevertheless, it
remains for the Commission to decide whether to exercise its discretion to grant a stay.
[4] Section 606(1) of the Act provides as follows:
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.
[5] 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
[2018] FWC 1112
DECISION
E AUSTRALIA FairWork Commission
2
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
[6] The principles applicable to the granting of a stay in the present case should be applied
against the statutory framework that is applicable to appeals against unfair dismissal
decisions. Unlike appeals against decisions made under other provisions of the Act,
permission to appeal a decision under Part 3-2 (unfair dismissals) will only be granted if the
Commission considers it to be in the public interest to do so.3 Accordingly, there is a higher
threshold for permission to appeal against an unfair dismissal decision.4
[7] Further, to the extent that an appeal is on a question of fact, it can only be made on the
ground that the relevant decision involved a significant error of fact.5
[8] 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
Background
[9] Mr Emery was dismissed from his employment as a beach inspector with the City of
Stirling for having modified the air-conditioning units in two beach inspector vehicles owned
by the City. The employer’s position was that Mr Emery made the modifications without the
knowledge of his supervisor, Mr Snook. According to the termination letter provided to Mr
Emery, the unauthorised modification of the two vehicles was in breach of policy, and
resulted in substantial damage to the vehicles, voiding their warranties. It was also said to
have caused the City of Stirling expense, and affected the City’s capacity to perform life-
saving services.
[10] Mr Emery claimed that he made the modifications to the vehicles with the authority of
Mr Snook. He also contended that he possessed the required expertise to perform the
modifications, and that they were not dissimilar to other tasks that he performed for the City
in his position of beach inspector. He contended that the investigation into his conduct was
unfair, as it was undertaken by Mr Snook, whose role in the matter was at issue.
[11] At the hearing before the Deputy President, Mr Emery gave evidence, together with
another beach inspector. Six witnesses gave evidence for the City of Stirling, including Mr
Snook, who denied that he gave approval to Mr Emery to make the modifications.7
[12] In relation to the question of whether the modifications made by Mr Emery to the
vehicles were authorised, the Deputy President preferred the evidence of Mr Emery to that of
Mr Snook. The Deputy President concluded that she was ‘not satisfied that the modifications
were unauthorised’.8
[13] Among various items of evidence cited in the decision in connection with this
contested fact, the Deputy President stated that Mr Emery had given unchallenged evidence
that Mr Snook was on a last warning. She stated that this ‘would provide a clear motivation
for Mr Snook to deny authorising the modifications’.9
[14] The Deputy President also considered that Mr Snook’s failure, among other things, to
exclude himself from the investigation lent credibility to the ‘assertion that Mr Snook had
something to hide’.10
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[15] The Deputy President further found that the auto-electrical modifications Mr Emery
made to the vehicles were not so far removed from the tasks he was expected to perform as to
constitute a valid reason for his dismissal. She considered that he had been encouraged by the
City to perform similar tasks, given his prior training and experience in auto electrics.11
[16] The Deputy President was not satisfied that Mr Emery’s conduct constituted a valid
reason for his dismissal. She concluded that, even if there was a valid reason for the dismissal,
the lack of procedural fairness afforded to Mr Emery rendered his termination harsh, unjust
and unreasonable.12 In this connection, she considered that Mr Emery was notified of some
but not all of the reasons for his dismissal, and that he was provided with an opportunity to
respond to some but not all of these reasons (see ss.387(b) and (c)).
[17] In respect of ‘any other relevant matters that the Commission considers relevant’,
which the Commission must take into account pursuant to s.387(h), the Deputy President
noted, among other things, that there was credibility in Mr Emery's assertion that Mr Snook
‘had something to hide’.13
Grounds of appeal
[18] The City of Stirling raises 12 grounds of appeal, variously contending that the Deputy
President’s decision was affected by errors of law or significant errors of fact, and that these
enliven the public interest.
[19] The grounds of appeal are not matters that are to be determined in this stay
application. Rather, the question to be determined is whether the order made by Deputy
President Binet on 9 February 2018 should be stayed. The purpose of examining the grounds
of appeal is to consider whether they disclose an arguable case of error, with some reasonable
prospect of success on appeal.
[20] By its first ground of appeal, the City of Stirling contends that it was denied
procedural fairness, because the Deputy President drew several conclusions of which the City
had no notice. First, the Deputy President concluded that Mr Snook had a motivation to deny
authorising Mr Emery to modify the vehicles because he was, according to Mr Emery, on a
final warning. Secondly, she found there was credibility in Mr Emery’s assertion that Mr
Snook had something to hide.
[21] The City of Stirling contends that it did not have an opportunity to contest these
propositions. It further contends, by grounds 3 and 4, that there was no proper factual basis
for these conclusions, and that they constituted significant errors of fact, or contributed to a
significant error of fact, namely that the modifications made by Mr Emery were authorised.
[22] The transcript records Mr Emery, in the course of cross-examination, stating his belief
that Mr Snook was on a ‘last warning’ and that he was therefore ‘loath to commit anything to
writing’.14 The Deputy President cites this passage of transcript in her decision. It does not
appear that there was any further evidence or argument about this point in the course of the
hearing. Nor does it appear that it was put to Mr Snook in cross-examination that he was on a
final warning, or that this final warning was a motivation for him to deny that he authorised
the modifications that later became the subject of controversy.
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[23] Similarly, it does not appear that it was put to Mr Snook in cross-examination that he
had ‘something to hide’, or that he was not telling the truth about not having authorised the
modifications that Mr Emery made to the vehicles. I note that the decision makes two
references to an assertion that Mr Snook had something to hide, the second of which indicates
that Mr Emery made this assertion.15 At the stay hearing, I asked counsel where this assertion
had been made, however it was not identified.
Arguable case with some reasonable prospect of success
[24] I am satisfied that the appellant has made out an arguable case, with some reasonable
prospect of success, both in relation to the grant of permission to appeal and the merits of the
appeal, in connection with its first, third and fourth grounds of appeal.
[25] In my view, there is an arguable case, with some reasonable prospect of success, that
the City of Stirling was denied procedural fairness by not being afforded an opportunity to
address the propositions that Mr Snook had a motivation to deny authorising Mr Emery to
make modifications to the vehicles, and that he had something to hide.
[26] Further, in my view the City has established an arguable case, with some reasonable
prospect of success, that the decision is affected by a serious error of fact. The Deputy
President’s apparent view that Mr Snook had a motivation to deny having authorised the
modifications, and that he had something to hide, arguably constituted such an error of fact, or
led to one, namely the conclusion that Mr Snook had authorised the modifications.
[27] I note the Deputy President's conclusion that, even if there was a valid reason, the
dismissal was still unfair because of procedural unfairness. On one view, the arguable errors
of fact concerning Mr Snook’s evidence are of no consequence, as the Deputy President
would have reached the same conclusion. However, the Deputy President characterised the
evidence of Mr Snook as being ‘central to the issues in dispute’.16 It is arguable that a
different view of the evidence of Mr Snook, unaffected by the conclusions referred to above,
might have resulted in a different overall assessment as to whether the dismissal was unfair.
[28] It is not necessary to consider the other appeal grounds. For the purposes of a stay
application, it is sufficient that there is an arguable case, with some reasonable prospect of
success, in relation to one of the appeal grounds. I note that an arguable case of a party being
denied procedural fairness is one which, if substantiated, would engage the public interest for
the purposes of permission to appeal.
[29] As to the balance of convenience, the City of Stirling confirmed that, if a stay were
granted, it would be prepared to pay into an interest bearing account the amount that would
have been payable to Mr Emery by way of lost remuneration, pursuant to the Deputy
President’s order, pending the determination of the appeal. Further, it confirmed that it would
make fortnightly payments of the amounts of remuneration that would have been payable had
Mr Emery been reinstated in accordance with the Deputy President’s order, pending the
determination of the appeal. I note that Mr Emery’s representative acknowledged that these
measures addressed any potential prejudice to his client.
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Conclusion
[30] Taking all of these matters into account, I am satisfied that I should make an order
staying the operation of the order of Deputy President Binet in PR600330, pending the
determination of the appeal.
[31] I will also order that the City of Stirling pay into an interest-bearing account the sum
ordered by the Deputy President by way of lost remuneration, together with the amounts that
would otherwise have been payable to Mr Emery had he been reinstated as contemplated by
the Deputy President’s order. These sums shall be paid to Mr Emery in the event that the
appeal is unsuccessful.
[32] An order giving effect to my decision is issued separately in PR600622.
DEPUTY PRESIDENT
Appearances:
T Caspersz for the Appellant
P Mullally for the Respondent
Hearing details:
2018
Melbourne
Video link to Perth
21 February
Printed by authority of the Commonwealth Government Printer
PR600594
WORK COMMISSION THE SEAL OF THE
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1 Kellow-Falkiner Motors Pty Ltd v Edghill Print S2639, 24 January 2000 at [5]; applied
in Bank of Sydney Ltd v Repici [2015] FWC 5511 et al.
2 Ibid. See also Coal and Allied Operations Pty Limited v Crawford and Others (2001) 109 IR
409 at [13].
3 Section 400(1) of the Act
4 WorkPac Pty Ltd v Bambach (2012) 220 IR 313; FWAFB 3206 at 14.
5 Section 400(2) of the Act
6 House v R (1936) 55 CLR 499
7 Decision at para 67
8 Decision at para 78
9 Decision at para 74(f)
10 Decision at paras 77, 165
11 Decision at para 96
12 Decision at paras 135, 172
13 Decision at para 165
14 Transcript of 29 November 2017 at PN1030
15 Decision at paras 77, 165
16 Decision at paras 157, 164
