1
Fair Work Act 2009
s.604—Appeal of decision
Pecker Maroo Verano Pty Ltd
v
Linda Margaret Stevens, Matthew Kenneth Stevens
(C2023/5135)
DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 7 SEPTEMBER 2023
Appeal against decision [2023] FWC 1096 of Deputy President Lake at Brisbane on 31 July
2023 in matter numbers U2023/1198 and U2023/1199 – stay granted
[1] This decision concerns an application by Pecker Maroo Verano Pty Ltd for a stay order
pursuant to s 606 of the Fair Work Act 2009 (Cth) (Act) pending determination of an appeal of
two matters jointly determined.
[2] The appeal concerns a decision1 and an order2 of Deputy President Lake at Brisbane on
31 July 2023. The decision concluded that it was appropriate to order the payment of
compensation to the respondents as a remedy for their unfair dismissal by the appellant. The
order was for the payment of compensation by the appellant to each respondent. It is noted that
the appeal was filed outside of the 21-day period prescribed by r 56(2)(a) of the Fair Work
Commission Rules 2013.
[3] The appellant seeks a stay of the whole of the decision pending determination of the
appeal. Notwithstanding that the appellant has identified the print number for both the decision
and the order in its Form F7, it states that the “orders have not been received YET.” The
appellant confirmed at the commencement of the stay hearing on 6 September 2023 that its
appeal concerns the compensation order.
[4] The appellant was represented at the stay hearing by its acting General Manager, Mr
Geoff Barden, rather than Mrs Stephanie Charlton who conducted the proceedings at first
instance and filed the appeal. The respondents were self-represented and oppose the stay.
Relevant principles
[5] Section 606 of the Act gives the Commission the discretionary power to stay the
operation of the whole or part of a decision the subject of an appeal. 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
[2023] FWC 2287
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1096.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2287.pdf
[2023] FWC 2287
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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.”
[6] In Edghill v Kellow-Falkiner Motors Pty Ltd,3 Vice President Ross (as he then was)
provided the following formulation for determining stay applications:4
“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.”
[7] Accordingly, both “elements” are necessary conditions to the grant of a stay.
Arguable case with some reasonable prospect of success
The appellant’s case
[8] In determining a stay application, the Commission 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. Accordingly, the task of
assessing whether the application raises an arguable case with some reasonable prospect of
success is to be undertaken against that context.
[9] Issues of fairness may arise in circumstances where an unrepresented appellant is rigidly
confined to its grounds of review in a notice of appeal, whether at a preliminary stage or upon
final determination. It may be that matters addressed in the grounds of review are intended to
be directed towards a particular type of error, but the language used by the appellant is
imprecise, or the legal concepts intended to be invoked are not clearly identified. Nevertheless,
it remains necessary for an appellant seeking a stay to establish an arguable case with some
reasonable prospect of success. The mere filing of an appeal is insufficient to satisfy the
necessary conditions for the grant of a stay.
[10] For reasons that will become apparent, it is necessary to set out the grounds of appeal
which are, without alteration, as follows:
1. Linda and Matt Did not follow proper due process to take 2 weeks annual leave- no
notice given- just abandoned their post with no notice.
2. Linda had a Dr certificate that was dated 5 days after she abandoned her job. Matt
was not sick and there was no reason for both of them to abandon their post.
3. Matt & linda were not in the office for the correct hours of operation and there were
any complaints from the body corporate and owners.
4. Linda pretended to have an accident – but in fact had PLANNED surgery on her
foot that put her our of work for 3 months- hence the business and resort suffered
and was noted by the body corporate that management was not doing a good job –
to the point that body corporate refuse to extend our option and now we have no
[2023] FWC 2287
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business to sell. Linda lied on her application and said she was fit and had no issues
that would detain her from performing her duties- the resort had MANY STAIRS
and NO LIFTS- Linda could not possibly perform her duties for 3- 4 months –
checking rooms and the cleanliness of the apartments. But for the fact that Linda
lied at her interview they would not have been given the contract for managing the
Verano Resort.
5. Linda also lied about not smoking- when in fact she chain smoked and this was
noted by many owners including complaints from guests and owners who could
smell the smoke and also saw Linda smoking. It was a specific requirement that
Verano is a NON-SMOKING resort- plus there are signs up on all the gates and
entrances.
6. Matt & Linda had their family come over from New Zealand and stayed at the resort
for 3-4 months- using other owners apartments without paying- hence stealing
money from our business and other owners. We had complaints from owners stating
their apartments were cleaned and to the point beer bottles and food was still in the
wardrobes- and owners wanted to know why Linda’s childrens’ names were on their
Netfllix TV in their apartments
7. Matt & linda had 2 extra security keys cut in early October 2022 and still have not
handed back all of the security keys to Verano Resort
8. 1st time -Matt & Linda put in writing that they were leaving the resort and
abandoning their post 2 weeks before XMAS- the busiest time of the year. 2nd time
-Matt & Linda rang us to say they were quitting there and then. The THIRD
THREAT for abandoning ship – I found out from Geoff Barden to say Matt & Linda
have told him to get over to the office same day o a Saturday– “they were out of
there”-
9. Proper due process for Annual leave must be in writing with notice and approved
by the directors. The week before Annual leave they must also send a reminder to
advise they will be away . THERE MUST BE RELIEF MANAGERS ORGANISED
for the time off- this was not done and Matt & Linda left anyway – abandoning
their post with no relief and no notice and no approval. Matt was not sick and nor
was Linda
10. Linda spent much time in hospital for other health reasons not just her leg- again not
being able to perform her duties. Again the resort deteriorated to the extent that the
body corporate and owners had had enough and refused to extend our option.- based
on the neglected stated of the resort.
11. Stephenie & Stephen had to pay a gardener aprox $3000 to assist in getting the
gardens back to an acceptable presentation- however this is work that we had already
paid Matt 7 Linda to do.
12. Linda had a foul mouth and the swearing was noted by many guests and owners that
she was not professional and could not believe some of the arguments and fights
coming from their apartment and in the stair wells and in the car park.
13. When Matt & Linda abandoned their post and had threatened us for the 3rd time –
we had no choice but to terminate their contract because of all the reasons stated
above. We gave them plenty of opportunity and even paid to have their work done
by others.
14. The body corporate and many owners were not happy along with Directors of Pecker
Maroo Verano – just how run down and bad the resort and business had become.
[2023] FWC 2287
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[11] At the hearing of the stay, Mr Barden withdrew the allegation made in ground seven.
[12] The appellant’s grounds of review merely state facts and do not directly allege any error
in the decision. However, in his oral submissions, Mr Barden contends that these grounds
represent the issues raised by the appellant at first instance that were not taken into account in
the decision. While Mr Barden was excluded from the hearing at first instance until he was
called to give evidence, he submits that the appellant provided evidence of performance issues
which were not considered. Further, Mr Barden submits that the respondents engaged in serious
misconduct by (a) lying, (b) smoking, and (c) abandoning their post, and these matters were not
taken into account in the decision.
[13] The grounds of review largely reflect what the Deputy President identified in the
decision as “materials regarding the dismissal,” filed by the appellant at first instance. The
Deputy President observed that the appellant “argues that the termination of the [respondents]
was valid on the basis that they did not perform the role they were required to do.” The
appellant’s submissions are extracted without alteration at [25] of the decision below. As is
apparent, they raise substantially the same matters as the grounds of review:
“Points for termination of Matt & Linda Stevens contract with Pecker Maroo Verano Pty
Ltd
• the Dr’s certificate written to Linda Stevens stating to have 2 weeks holiday
was 5 days AFTER Matt & Linda demanded to go on holidays for 2 weeks.
• Why did Matt Stevens have to go on a holiday when he was not sick?
• Matt & Linda Stevens gave us an ultimatum on 3 separate occasions and
threated us that if we did not comply with their demands they would abandon
their post and terminate their contract with Pecker Maroo Verano Pty Ltd.
• Matt & Linda’s work performance and standards were not of a satisfactory
standard to the owners and the body corporate and management of Pecker
Maroo Verano Pty Ltd
• we had to pay an extra $3000 to an outside contractor to bring the resort up to
standard required by body corporate in November 2022.
• The body corporate has also denied our option renewal request based on the
poor performance of the onsite managers - Matt & Linda Stevens.
• As a NON- smoking resort – the owner of unit 5 complained about continuous
smoking coming from the managers unit.- Unit 1. Linda admitted she was still
smoking. Matt also admitted that Linda still smoked
• Bad language – heard by many people – guests and owners by Matt & Linda
Stevens
• Use of owners apartments FREE OF CHARGE for Matt & Linda’s family over
3 months duration. - Sep to Dec 2022 - this equates to theft.
• Correct Office Hours stated on the contract and stipulated by the body
corporate were not adhered to by Matt & Linda Stevens- the office was often
unattended after 12.00pm many days. Owners would attend to clients and show
them how to access the security box to gain access to their units.”
[14] In the decision, the Deputy President summarised the appellant’s allegation that the
respondents “lied about Mrs Stevens having an accident by falling out of a car which resulted
[2023] FWC 2287
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in a foot injury.”5 Further the decision identifies that the appellant submitted statements from
Mr Barden and Mrs Sue Ann Barden in support of its claim.6 Mrs Barden was not called to give
evidence at first instance and the content of her statement, and that of Mr Barden, is not
otherwise addressed in the decision.
[15] In addition, the Deputy President referred to a “response” provided by the Chairman of
the owners corporation for the resort operated by the appellant. The response addresses matters
relating to the respondents’ performance including “upkeep issues” regarding the footpaths,
lawn and watering system, the maintenance of the gardens and the requirement to replace a
door.
[16] A preliminary review of the grounds of appeal demonstrates that the matters raised in
grounds two to five, part of six concerning the use of the resort for the respondents’ family,
eleven, twelve and fourteen are matters raised by the appellant in its submissions extracted at
[25] of the decision. Similarly, grounds one, eight and nine concern the issue of “abandonment”
in which it is alleged that the respondents abandoned their post on three occasions. This issue
is also identified in the appellant’s submissions.
[17] At the stay hearing, Mr Barden said that he gave evidence at first instance in relation to
the matters which are the subject of appeal grounds one, two, eight and nine. The matters
extracted at [25] of the decision largely appear to have been the subject of Mrs Charlton’s oral
evidence.
Consideration
[18] The appellant’s case is, in general terms, an allegation that the Deputy President failed
to consider evidence or submissions. With the exception of ground seven, I consider that the
grounds of review give rise an arguable case with some reasonable prospect of success on at
least two matters which were identified with sufficient specificity at the hearing of the stay.
[19] First, Mrs Charlton and Mr Barton gave evidence during the proceedings at first
instance and the respondents were cross-examined on the matters set out at [25] of the decision.
The decision contains no consideration of Mr Barton’s evidence, the appellant’s submissions
(which largely replicate the grounds of appeal), or most of the matters explored during cross-
examination of the respondents. Further, the consideration of Mrs Charlton’s evidence appears
to be limited.
[20] It follows that a substantial amount of apparently pertinent evidence and submissions
central to the appellant’s case is not the subject of consideration in the decision. Much of that
material appears to challenge the respondents’ evidentiary case. The decision does not appear
to resolve those evidentiary contests.
[21] Second, it is apparent that the appellant raised various issues at first instance concerning
the respondents’ performance and conduct (including the smoking issue and the allegations of
lying). I consider that the appellant’s grounds of review and submissions are fairly understood
as addressing the Deputy President’s reasoning as to whether there was a valid reason for the
dismissal related to the respondents’ capacity or conduct pursuant to s 387(a) of the Act.
[2023] FWC 2287
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[22] The Deputy President confined his reasoning regarding s 387(a) in the following
manner:
[33] The Respondent argues that the Applicants were dismissed on the basis of poor
performance of their duties. I note that this was not stated in the termination
letter.
[34] The termination letter states issues of ‘performance ethic’ and the failure to
provide proper notice for annual leave. It does not take into account poor
performance of duties. Therefore, I can only consider the issues of ‘performance
ethic’ and the failure to provide proper notice for annual leave in determining
whether there was a valid reason for dismissal.
[23] The Deputy President limited his analysis under s 387(a) to the matters he discerns were
stated in the termination letter, being (a) “performance ethic,” and (b) a failure to provide notice
of annual leave. With respect to (a), it is not clear what the Deputy President considered the
term “performance ethic” to mean. The termination letter refers to attitude, threats of
resignation and abandonment, although the decision does not expressly address any of these
matters. It is also sufficiently clear that the Deputy President did not consider the term
“performance ethic” to capture the broader performance and conduct issues the subject of the
appellant’s submissions and evidence. In circumstances where the appellant’s case appears to
have been almost wholly based on performance and conduct issues, it is not apparent from the
decision why the consideration in s 387(a) was limited to a purported failure to provide notice
of annual leave.7
[24] Alternatively, it may be that the actual reason for the dismissal was not the reason
provided to the respondents in the termination letter or in the telephone call on the day of the
termination. Such an approach does not preclude the appellant from relying on what it considers
to be the actual reason for the dismissal for the purposes of s 387(a).8
Balance of convenience
[25] The applicant for a stay must satisfy the Commission that the balance of convenience
favours a stay.
[26] The appellant declined to place an amount equal to the compensation sum into an
interest-bearing trust account for the benefit of the respondents on the basis that it was not in
the financial position to do so at short notice. Mr Barden submits that the appellant is in a legal
dispute with the owners corporation in relation to the maintenance issues identified with the
operation of the resort. The respondents did not challenge the position of the appellant in this
respect. I consider this matter to be significant in determining whether the balance of
convenience favours the grant of a stay.
[27] To be weighed against this is the respondents’ submission that the “process” has been
continuing since February 2023 and they seek an end to it for their “sanity.” It is to be noted
that the respondents’ respective applications for an unfair dismissal remedy were filed with the
Commission on 15 February 2023. This timeframe must be considered in the context of modern
case management principles9 and the Commission’s overarching purposes, which includes the
[2023] FWC 2287
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efficient management of unfair dismissal applications. In any event, the issuance of a stay will
not give rise to any relevant delay in the determination of the appellant’s application for
permission to appeal.
[28] Further, at the hearing of the stay, Mr Stevens confirmed that he secured alternative
employment in late April 2023, prior to the first instance hearing, and Mrs Stevens secured
alternative employment soon after the hearing. The respondents’ financial position therefore
weighs neutrally in relation to the issuance of a stay.
[29] Having regard to all of the circumstances raised, I consider that the balance of
convenience favours the grant of the stay.
Conclusion
[30] The appellant’s application for a stay of the order10 of Deputy President Lake dated 31
July 2023 is granted. An order will be issued in conjunction with this decision.11
DEPUTY PRESIDENT
Appearances:
Mr G Barden on behalf of the appellant
Mrs L Stevens on behalf of the first respondent
Mr M Stevens on behalf of the second respondent
Hearing details:
2023.
Melbourne (by video using Microsoft Teams):
6 September
Printed by authority of the Commonwealth Government Printer
PR766007
1 [2023] FWC 1096
2 PR764777
WORK COMMISSION THE SEALLBE THE
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1096.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr764777.pdf
[2023] FWC 2287
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3 [2000] AIRC 785
4 Ibid at [5] approved on appeal in Kellow-Falkiner Motors Pty Ltd v Edghill [2000] AIRC 786
5 Decision at [26]
6 Decision at [27]
7 Decision at [35]-[38]
8 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185 at
[45] citing Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at CLR, 377-8
9 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [92]-[93]
10 PR764777
11 PR766008
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb4185.htm
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr764777.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr766008.pdf
