1
Fair Work Act 2009
s.604—Appeal of decision
The Castaway Paper Products Co Pty Ltd
v
Saso Miloskovski
(C2024/35)
DEPUTY PRESIDENT BEAUMONT PERTH, 12 JANUARY 2024
Appeal against decision [[2023] FWC 3462] of Commissioner Crawford at Sydney on 22
December 2023 in matter number U2023/6231 – application for a stay order
[1] This decision concerns an application by The Castaway Paper Products Co Pty Ltd (the
Appellant) for a stay order pursuant to s 606 of the Fair Work Act 2009 (Cth) (the Act). It is
made in relation to an appeal against a Decision1 and an Order2 of Commissioner Crawford on
22 December 2023. The Decision concluded that Saso Miloskovski (the Respondent) had been
unfairly dismissed from his employment with the Appellant and that it was appropriate to order
the payment of compensation to the Respondent as a remedy for his unfair dismissal. The Order
was for the payment of compensation in the amount of $10,000.00 less taxation, plus a
superannuation contribution of $1,100.00 in respect of compensation paid by the Appellant to
the Respondent. The Appellant seeks a stay of the Order pending the determination of the
appeal.
[2] At the hearing of the stay application on 11 January 2024, the parties were self-
represented and relied on materials filed. Albeit the Appellant briefly addressed contentions of
alleged error concerning the merits aspect of the Commissioner’s Decision. The Appellant’s
grounds of appeal and alleged errors did not extend to the Commissioner’s reasoning in respect
of remedy, particularly compensation.
[3] This observation is relevant because whilst not satisfied there is an arguable case with
reasonable prospects of success in respect of permission to appeal and the merits of the appeal
based on the grounds in the notice of appeal (Notice), the Appellant does have reasonable
prospects of success in respect of an arguable case that the Commissioner fell into appealable
error when determining the amount of financial compensation and the Order that therefore
followed. This is notwithstanding that the Appellant has not advanced an appeal ground on this
point. Further, I am satisfied that the balance of convenience favours a stay.
[4] For the reasons that follow, the Appellant’s application for a stay of the Order of
Commissioner Crawford dated 22 December 2023 is granted. An order will be issued in
conjunction with this decision.3
[2024] FWC 83
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc3462.pdf
[2024] FWC 83
2
Relevant principles
[5] A person aggrieved by a decision made by a single member of the Commission may
only appeal a decision with the permission of the Commission.4 Permission to appeal a decision
related to an unfair dismissal remedy will only be granted if the Commission considers it to be
in the public interest to do so.5
[6] 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 fact.6 More generally, other errors said to have been made by a first
instance decision-maker must be of a kind identified in House v The King.7
[7] 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.8
[8] Moreover, this Commission and its predecessors 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 made.9
[9] It is well established that in deciding whether to exercise discretion to grant a stay order,
the Commission must 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 order.10 Each of the two elements must
be established before a stay order will be granted.
[10] In applying those principles, the required assessment of an appeal’s prospects of success
for the purposes of determining a stay application is necessarily of a preliminary nature only.11
This is because the Commission has not had the benefit of hearing the appellant’s full argument
and may not have had the opportunity to comprehensively review and consider the case
materials.12
The grounds of appeal
[11] For reasons that will become apparent, it is necessary to set out an abridged version of
the grounds of appeal.
[12] The Appellant advances several grounds in the Notice all of which appear to be premised
on the contention that the Commissioner made significant errors of fact or errors in the exercise
of discretion. Those errors can be distilled in the following terms:
1. the Commissioner did not consider the Respondent’s previous insubordination and
refusal to work which had formed part of the Respondent’s attitudinal problems and
were relied upon by the Appellant as reasons for the Respondent’s dismissal.
Instead, the Commissioner’s Decision was mainly based on video recordings;
2. the Commissioner did not accord due weight to the Respondent’s false statements
that he was about to suffer physical abuse and harassment from his supervisor, and
the Commissioner failed to consider that the Respondent produced fraudulent
documents;
[2024] FWC 83
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3. the Commissioner considered the periods in which the Respondent distracted
colleagues and took them out of the production line to be a reasonable brief period
when the evidence presented suggested otherwise;
4. at paragraph [29] of the Decision, the Commissioner stated that the Respondent had
no performance issues prior to 2023 and in doing so failed to value the evidence in
light of the period before and after the ‘accident’;
5. the Commissioner made an erroneous finding when accepting that the procedure
adopted in respect of the dismissal was correct but that the Respondent’s conduct
did not justify summary dismissal when the Respondent had refused to carry out
lawful and reasonable instructions consistent with the employment contract and had
made false allegations;
6. the Commissioner gave undue weight to the Respondent’s 13 years of service when
determining the dismissal was unfair, particularly given the Respondent’s
misconduct, including returning late to work after lunch, using a mobile phone on
premises (notwithstanding a prior warning for the same infringement), and
distracting other employees; and
7. the Commissioner failed to consider in his assessment of whether the Respondent’s
conduct constituted serious misconduct that the Respondent’s failure to follow
lawful and reasonable instructions generated a risk of producing defective products,
which required the closure of the afternoon shift due to quality issues.
Arguable case with some reasonable prospect of success
[13] Starting first with the issue of the compensatory amount, at paragraph [36] of the
Decision the Commissioner finds that there was a valid reason for the Respondent’s dismissal,
stating that it was the combined conduct of the Respondent that provided the valid reason. That
combined conduct included the Respondent having carried his mobile phone on the factory
floor on 23 June 2023, being late in returning from his lunch break and non-compliance with
directions from his supervisor.
[14] As was appropriate to do so, the Commissioner identified that a summary dismissal of
an applicant was a matter to be considered under s 387(h) of the Act13 and that a conclusion
that a summary dismissal was disproportionate to the gravity of the misconduct may support
that the dismissal was harsh.14 At paragraph [49] of the Decision the Commissioner provides
reasons for concluding that the summary dismissal of the Respondent in addition to a
shortcoming of the investigation (paragraph [51]), the Respondent speaking English as a second
language, his length of service, age, and an unblemished record for the first 12 and a half years
of his employment, weighed toward the dismissal being harsh and therefore concluded that the
Respondent’s dismissal was unfair.
[15] That the Commissioner found a valid reason for dismissal but that a summary dismissal
in conjunction with other factors rendered the dismissal harsh, may indicate that the Respondent
should have been afforded notice of termination of employment, or payment in lieu of notice.
I will expand on this point shortly.
[16] At paragraph [69] of the Decision, the Commissioner outlines his reasons for finding
that the Respondent, but for his dismissal, would have remained in the employ of the Appellant
for the period of 28 June 2023 until 28 December 2023. That is, a period of six months. The
[2024] FWC 83
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Commissioner reiterates at paragraph [86], where he considers the first step in the ‘Sprigg
formula’ as articulated in the decision of Sprigg v Paul’s Licencesd Festival Supermarkets15
and later in the Bowden v Ottrey Homes Cobram and District Retirement Villages,16 that the
Respondent would have remained employed but for his dismissal until 28 December 2023.
[17] However, the first step in the Sprigg formula is the estimation of the remuneration the
employee would have received, or have been likely to receive, if not dismissed. At first instance
and having found that there was a valid reason for dismissal, there is an arguable case that the
Commissioner fell into error of the House v King kind when he determined that the anticipated
period of employment was six months instead of the five weeks that the Respondent would
have otherwise served if he had not been summarily dismissed but simply dismissed with notice
– noting that there was a valid reason for dismissal.
[18] At paragraph [94] of the Decision, the Commissioner acknowledges he had found there
was a valid reason for the Respondent’s dismissal and reduces the compensatory amount by
5%, and at paragraph [100] the Commissioner observes that given he had found the Respondent
should not have been summarily dismissed, the effect of the order he was proposing was such
that the Respondent would not receive an amount of compensation equivalent to payment in
lieu of notice which, in the Commissioner’s view, the Respondent should have received.
[19] As already identified, the Appellant does not include this as a ground of appeal
notwithstanding 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, concerning the Commissioner’s
exercise of the discretion in this respect. Given the nature of the apparent error, it is perhaps
ineluctable, to the extent necessary to do so, that the Full Bench may amend the Notice under
s 586 of the Act to include this matter as a ground of appeal – hence allowing for the conclusion
that this matter constitutes an arguable case with some reasonable prospects of success.
The Appellant’s case
[20] Turning to the appeal grounds as articulated in the Notice, it is to be appreciated that 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.
Serious misconduct and harshness – s 387(h)
[21] In relation to appeal ground one, the Appellant contends that the Commissioner
premised his Decision mainly on video recordings and failed to consider the Respondent’s
previous insubordination and refusal to work which had formed part of the Respondent’s
attitudinal problems and were relied upon by the Appellant as reasons for the Respondent’s
dismissal.
[22] Appeal grounds 2, 3, 4, 5 and 7, similarly level criticism at the Commissioner’s
consideration of the Appellant’s misconduct, presumedly in respect to s 387(h) of the Act. No
issue appears to have been taken regarding the Commissioner’s finding that there was a valid
[2024] FWC 83
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reason for the Respondent’s dismissal for the reasons detailed at paragraph [36] of the Decision.
Therefore, the Notice appears to focus on a perceived failure to take into account the
Appellant’s evidentiary case in respect of the Commissioner’s conclusion that the Respondent’s
conduct did not justify summary dismissal.
[23] The expression ‘summary dismissal’ has a reasonably well understood meaning at law,
referring to a dismissal without notice arising from a breach of an essential term of the
employment contract, a serious breach of a non-essential term of the contract, or conduct
manifesting an intention not to be bound by the contract in the future on the part of the
employee.17 It is accepted that it is not the case that ‘serious misconduct’ operates as a fixed
standard for the determination of the type of conduct by the employee which may warrant
summary dismissal,18 and that there is no rule of law that defines the degree of misconduct
which would justify dismissal without notice, the touchstone being whether the conduct was of
such a grave nature as to be repugnant to the employment relationship.19
[24] In my view, the Commissioner correctly identified that the summary dismissal of the
Respondent was a matter to be considered under s 387(h) of the Act20 and that a conclusion that
a summary dismissal was disproportionate to the gravity of the misconduct may support that
the dismissal was harsh.21
[25] In the circumstances of the matter before him, the Commissioner found that there were
mitigating factors which made the manner of the termination of the employment without notice,
as occurred, harsh. These factors included that the Respondent was summarily dismissed after
13 years of service in the same business, that the Respondent spoke English as a second
language, his age, and his unblemished record for approximately the first 12 and a half years
with the Appellant. Such findings of mitigating circumstances appear to have been properly
made based on the evidence.
[26] The finding of the Commissioner in relation to the mitigating circumstances and his
conclusion that the termination was harsh, was made after weighing that consideration against
findings in relation to other matters arising from s 387 of the Act, including his findings as to
valid reason, and as such his Decision in this respect does not appear to reflect an arguable case
of error, let alone significant error, that would appear to have a reasonable prospect of success.
[27] With regard to the grounds of appeal, I make some further observations.
[28] Regarding the first appeal ground, in respect of the verbal warning concerning purported
misconduct on 17 January 2023, at paragraph [30] of the Decision, the Commissioner found
that it was not clear whether the Respondent was verbally warned about his failure to follow
the directions provided on 17 January 2023 and having considered the circumstances he found
he could not accord the warning any significant weight.
[29] It is evident that the Commissioner had due regard to the verbal warning of
17 January 2023 and his finding was clearly drawn from evidence before him. That the finding
made was that significant weight could not be accorded to the verbal warning, was, in my view,
reasonably open. It is noted that the verbal warning referred to in the Notice refers to the date
17 January 2022 and that in the Decision the Commissioner refers to a verbal warning
concerning purported conduct on 17 January 2023. I consider nothing turns on this discrepancy,
[2024] FWC 83
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with the reference in the Notice likely constituting a typographical error on the Appellant’s part
and that the warning referred to was that concerning conduct in early January 2023.
[30] In the context of considering the Respondent’s summary dismissal, the Commissioner
observed the verbal warning was of limited relevance given the Respondent was dismissed for
serious misconduct engaged in on 23 June 2023. I will return to this point shortly, but first it is
necessary to address the other incidents of purported insubordination.
[31] The Appellant appears to have referred to an email from Mark Senior, Production
Supervisor, to James Camp dated 9 May 2023 time stamped 1:53 PM at page 185 of the Digital
Hearing Book (DHB). That email details that Mr Senior had asked the Respondent to run the
‘2A’ for a period and the Respondent had questioned why, stated it was hard work and that
Mr Senior should persist in getting ‘Amar’ to run it. The Respondent continued that he was
always given hard jobs which he should not be doing as he was on light duties, to which
Mr Senior is said to have informed the Respondent that he makes sure that he does not lift
anything over his 5kg limit. Mr Senior advised Mr Camp that he informed the Respondent he
was not discussing it further and instructed the Respondent to run the ‘2A’.
[32] Reference is made by the Appellant to an email dated 11 May 2023. The DHB includes
two such emails. First, an email dated 11 May 2023 time stamped 6:34 AM (DHB page 187),
from Mr Senior to Mr Camp in which Mr Senior details that he held a discussion with the
Respondent about going ‘onto the 2A to finish off the changeover and fine tune the 1Ply lunch’.
Mr Senior advised Mr Camp that the Respondent said he was not capable to do the changeover
and that Mr Senior would need to find another machine setter to do the job. The email reports
that the Respondent had said to Mr Senior that he only wanted to stay on one machine and had
provided detail as to work he had done, which, in his view, had resulted in him having to go
home and take tablets.
[33] The second email of that date is from Mr Senior to Mr Camp dated 11 May 2023 time
stamped 1:43 PM (DHB page 186) in which Mr Senior sets out that the Respondent had raised
an issue with ‘5A’ regarding the ‘switches mechanism on Line 1 on the 5A’. Mr Senior formed
the view that someone of the Respondent’s skill level should be able to solve the problem and
that the Respondent could have fixed the issue but chose not to.
[34] At this juncture, it is relevant to highlight that notwithstanding the Commissioner’s
directions to the parties to file witness statements on 3 October 2023 and by the amended
directions issued on 23 November 2023, the Appellant did not do so. That the Appellant did
not file witness statements appears to have provided sound basis for the Commissioner to
identify the Appellant’s reasons for the Respondent’s summary dismissal by reference to the
Form F3 in addition to the letter of termination. It was open to the Commissioner to have done
so in the circumstances. Further, and as observed, the Commissioner considered he could
accord little weight to the verbal warning of 17 January 2023 for the aforementioned reasons
and it was reasonably open on the evidence for the Commissioner to surmise that such verbal
warning did not play a part in the decision to summarily dismiss the Respondent for alleged
serious misconduct, given the conduct in question occurred on 23 June 2023.
[35] Regarding the bases for summary dismissal, the Commissioner deals with the mobile
phone use at paragraphs [29] and [49], insubordination at paragraphs [29] and [49], false
[2024] FWC 83
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allegations at paragraph [32] and loss of profit and reputation at paragraph [29]. Whilst the
Appellant refers to the verbal warning, the emails dated 9 May 2023 and 11 May 2023, and
repeated failure of the Respondent to return to his workstation on 23 June 2023, it is not
apparent from the letter of termination or the Appellant’s contentions in its Form F3 that the
verbal warning or insubordination as detailed in the emails, was relied upon by the Appellant
to justify the Respondent’s summary dismissal.
[36] Regarding appeal ground 2, namely the Commissioner’s purported failure to give due
weight to the Respondent’s false statements that he was about to suffer physical abuse and
harassment by a supervisor, I am not persuaded that there is an arguable case that the
Commissioner erred in this respect. At paragraph [32] of his Decision, the Commissioner gave
detailed reasons for his finding that the parties held differing perceptions concerning the
Respondent’s assertion that Mr Scaccabarrozzi engaged in threatening behaviour, finding:
I put the differing perceptions of the interaction down to human nature and the subjectivity that
is often associate with interpreting another person’s behaviour.
[37] The Appellant’s contention that the Respondent produced fraudulent documents which
were not considered relevant to the determination of whether he engaged in serious misconduct,
appears premised on the Respondent’s certificates of capacity referring to him as a ‘mechanic’
instead of a ‘machine operator’. The Appellant asserts that it advised the Respondent to have
his treating physician rectify the mistake, but the certificates of capacity continued to refer to
him as a ‘mechanic’. The Appellant stated that it considered this a false statement. Whilst the
Appellant may hold the view that the Respondent relied upon ‘fraudulent’ documents, such
assertion appears to bear little to no relevance to the reasons relied upon by the Appellant to
justify the Respondent’s summary dismissal as detailed in the letter of termination and the Form
F3.
[38] The Appellant took issue with the Commissioner finding that the Respondent distracted
his colleagues for a ‘reasonably brief period’. At paragraph [29(v)] of the Decision, the
Commissioner refers to the Respondent, in addition to the other employees the Respondent
spoke to, performing less productive work ‘albeit for a reasonably brief period’. The period in
question appears to amount to 45 minutes as detailed in the Appellant’s submissions at first
instance. At paragraph [45] of the Decision, the Commissioner addresses the loss of production
issues arising from the Respondent’s ‘distraction’ by reference to the temporal relativity of the
period of distraction as compared to the Respondent’s work history. In such circumstances, it
was likely reasonably open to the Commissioner to consider the period was ‘reasonably brief’.
[39] Appeal ground 5 effectively replicates the assertions relied upon at grounds 1, 2, and 3,
all of which have been considered and addressed in the aforementioned paragraphs. Appeal
ground 6 essentially expresses an erroneous opinion regarding length of service and how it is
to be considered under ‘other matters’ the Commission considers relevant under s 387(h) of the
Act.
[40] Appeal ground 4 of the Decision sets out to the effect that the Commissioner incorrectly
found that the Respondent had no performance issues prior to 2023 and in doing so failed to
value the evidence in light of the period before and after the ‘accident’. However, the focus of
the Appellant’s evidence in respect of the Respondent’s performance issues appears to have
been predominately focused on the six months prior to his dismissal, and as it is, the
[2024] FWC 83
8
performance issues referred to appear, in the evidence before the Commissioner, to have had
little bearing on the reasons advanced to justify the Respondent’s summary dismissal.
Balance of convenience
[41] As acknowledged, the Commission and its predecessors 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 made.22 I therefore place significant
weight on the fact that the Respondent was successful at first instance and should generally be
entitled to the benefit of the outcome of his unfair dismissal application.23
[42] However, on the day of the hearing, the Respondent submitted that he did not oppose
the stay order in question, and at this point requested only a statement of service – which was
agreed to by the Appellant.
[43] The Appellant submitted it would be difficult to recoup compensatory monies in
circumstances where it was successful with its appeal and it was experiencing cash flow
problems. Whilst appreciative that the Appellant was self-represented, evidence to support
these contentions was scant.
[44] It has been said that the stronger the arguable case advanced, the less reliance needed to
be placed on exceptionally strong balance of convenience factors in order to warrant a stay
order.24 Conversely, the weaker the arguable case, the stronger must be the balance of
convenience.25
[45] I am persuaded on the material before me, albeit my assessment is necessarily of a
preliminary nature only,26 there is a seriously arguable case in relation to the aforementioned
matter at paragraphs [3] and [13]–[19]. Further, that the Respondent does not oppose the
making of the stay order, is not an insignificant factor to weigh in the balance.
Conclusion
[46] Taking all of the abovementioned matters into account and being mindful that the appeal
will be listed in a reasonably short period, I am satisfied that I should make the order staying
the operation of the Order of the Commissioner. I will make an order that pending the hearing
and determination of this appeal or further order, that the Order of the Commissioner in
PR769781, be stayed.
DEPUTY PRESIDENT
MMISSION 12 WORK - 1
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr769781.pdf
[2024] FWC 83
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Appearances:
I Miloskovska for the Applicant
J Camp for the Respondent
Hearing details:
2024.
Perth (by MS Teams audio only):
11 January.
Printed by authority of the Commonwealth Government Printer
PR770158
1 Miloskovski v The Castaway Paper Products Co Pty Ltd [2023] FWC 3462.
2 PR769781.
3 PR770159.
4 Fair Work Act 2009 (Cth) s 604(1).
5 Ibid s 400(1).
6 Ibid s 400(2).
7 (1936) 55 CLR 499. See 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 Australian Industrial Relations Commission (2000) 203 CLR 194
referring to the application of House v The King to appeals in the Australian Industrial Relations Commission, and the
intention expressed in the EM to maintaining this jurisprudence in relation to Fair Work Australia appeals.
8 Jetstar Services Pty Ltd v Ishak [2013] FWC 5254, [4] (Jetstar).
9 Ibid.
10 See Kellow-Falkiner Motors Pty Ltd v Edghill (Australian Industrial Relations Commission, Full Bench, 17 March 2000)
(Print S4216) (Edghill) and applied in this tribunal. See, eg, Boom Logistics Ltd v Bell [2013] FWC 1017; GM Holden
Ltd v Symonds [2013] FWC 332; Vondoo Hair v Crockett [2012] FWA 9553; Vita Property Group Pty Ltd v Clayworth,
[2012] FWA 6547, DesignInc (Sydney) Pty Ltd v Xu [2012] FWA 1088; Suncorp Staff Pty Ltd v Brewer [2012] FWA
823.
11 National Union of Workers – New South Wales Branch v Belan [2017] FWC 1439, [6] (Belan).
12 Ibid.
13 Grandbridge Ltd v Wiburd [2017] FWCFB 6732, [27] (Grandbridge).
14 Potter v WorkCover Corporation (2004) 133 IR 458, 473 [55] (Potter).
15 (1998) 88 IR 21.
16 (2013) 229 IR 6.
17 Grandbridge (n 13) [27].
18 See Rankin v Marine Power International Pty Ltd (2001) 107 IR 117.
19 Ibid; Grandbridge (n 13) [28]
20 Grandbridge (n 13) [27]
21 Potter (n 14) 4733 [55].
22 Jetstar (n 8) [4]. See, eg, Edghill (n 10) [6].
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc3462.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr769781.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr770159.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwc5254.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwc1017.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwc332.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwa9553.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwa6547.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwa1088.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwa823.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwa823.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1439.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb6732.htm
[2024] FWC 83
10
23 Jetstar (n 8) [11].
24 Ibid.
25 Ibid.
26 Belan (n 11) [6].
