DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd T/A Oscar's Restaurant
v
Mr Ashley Duddington
(C2017/3516)

Appeal against decision [2017] FWC 2958 of Deputy President Bull at Perth on 13 June 2017 in matter number U2016/15256.

[1] On 28 June 2017, Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd T/A Oscar's Restaurant (Oscar's Restaurant) applied for a stay order (Stay Application). The stay order is sought pursuant to section 606 of the Fair Work Act 2009 (Cth) (FW Act) in relation to an appeal by Oscar’s Restaurant (Appeal Application) against the decision of Deputy President Bull at [2017] FWC 2958 (Decision), issued on 13 June 2017.

[2] In the Decision, the Deputy President determined that Mr Ashley Duddington (Mr Duddington) had been unfairly dismissed from his position as restaurant manager at a restaurant trading as Oscar’s Restaurant Currambine. In light of this finding, he invited the parties to make written submissions in relation to remedy within 7 days of the date of the Decision. Mr Duddington filed and served submissions. No submissions were filed or served on behalf of Oscar’s Restaurant.

[3] On 5 July 2017 in at [2017] FWC 3544 (Compensation Decision), the Deputy President determined that Mr Duddington was entitled to compensation of $12,480.00 less tax (Compensation). On the same date, the Deputy President ordered at PR594355 that Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd were jointly and severally liable to pay Mr Duddington the Compensation within 21 days (Order).

[4] Section 606(1) of the Act provides as follows:

(1) 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] The Stay Application was listed to be heard on 19 July 2017 (Stay Hearing).

[6] Mr Nagy Morgan (Mr Morgan) appeared, with the assistance of an Arabic interpreter, on behalf of Oscar’s Restaurant at the Stay Hearing before me, and at the first instance hearing before the Deputy President. Mr Duddington appeared on his own behalf at the first instance hearing but did not appear nor was he represented at the Stay Hearing. Both parties was invited to file written submissions in relation to the Stay Application but elected not to do so.

[7] Oscar’s Restaurant initially sought a stay of the whole of the Decision. At the Stay Hearing, Mr Morgan also sought a stay of the whole of both the Compensation Decision and the Order. The practical effect of the stays sought would be to suspend the obligation of Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd to pay Mr Duddington the Compensation on or before 26 July 2017.

Principles for staying the operation of a decision or order

[8] 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 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

[9] The principles applicable to the granting of a stay in the present case must be applied against the statutory framework that applies to appeals against unfair dismissal decisions. Unlike appeals against decisions made under other provisions of the FW Act, permission to appeal a decision under Part 3-2 (unfair dismissals) may only be granted if the Commission considers it to be in the public interest to do so. Accordingly, there is a higher threshold for permission to appeal against an unfair dismissal decision. 3

[10] 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. 4

[11] 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 (1936) 55 CLR 499.

Consideration

[12] The grounds for appeal set out in the Appeal Application are handwritten and difficult to read or understand. Mr Morgan was asked to clarify the grounds of appeal at the Stay Hearing. Given the language barriers and Mr Morgan’s limited knowledge of the relevant legal principles, this task proved somewhat difficult. After some discussion, it appears that there are two grounds of appeal. Firstly that the Deputy President incorrectly identified the employer, and consequently determined that he had jurisdiction to determine Mr Duddington’s application when he did not. Secondly, that the compensation awarded was excessive, and was awarded when the decision finding Mr Duddington’s dismissal was unfair was already under appeal.

[13] The identity of the employer has been in contention since Mr Duddington first made his unfair dismissal application.

[14] Mr Duddington filed his complaint naming Oscar’s Restaurant trading as Oscar’s Restaurant as his employer. The Form F3 – Employer Response to Unfair Dismissal Application signed by Mr Morgan referred to Morgan Trading and Mario and Clara Enterprises Pty Ltd trading as Oscar’s Restaurant Currambine as the employer and trading name respectively. 5

[15] The Decision reveals that, on the first day of the hearing, the parties agreed that the employer was the Morgan and Mansour Family Trust and the Morgan Family Trust and that the Australian Business Number (ABN) for this group was 31 378 377 138. The Deputy President records in the Decision that he told the parties that a trust can not be a party to legal proceedings and that Mr Duddington could not enliven the Commission jurisdiction unless the employer was a national system employer. 6

[16] Subsequently, Mr Duddington applied to change the name of the respondent to Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd. In support of this application, Mr Duddington provided a copy of a document titled Australian Taxation Office Tax Agent Portal – Report (ATO Report) which identified Mr Duddington’s employer for the 2015/2016 financial year as Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd. 7

[17] According to the Decision, Mr Morgan did not oppose the amendment application and, during day two of the hearing, agreed that the true employer of Mr Duddington was Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd. 8

[18] In the Decision, the Deputy President records that Mr Morgan did not dispute that the named employers were not trading corporations. 9

[19] Based on the ATO Document and Mr Morgan’s evidence, the Deputy President concluded that Mr Duddington’s employer was Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd and that he had jurisdiction to hear and determine Mr Duddington’s application. 10

[20] At the Stay Hearing, Mr Morgan asserted that the true employer of Mr Duddington was the Morgan and Mansour Family Trust and the Morgan Family Trust. Mr Morgan asserted that language barriers resulted in the Deputy President wrongly concluding that Mr Morgan agreed that Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd were Mr Duddington’s employer.

[21] At the Stay Hearing it appeared that, while Mr Morgan has some English skills, he has limited proficiency in the English language. It also appeared likely that he didn’t have sufficient legal knowledge to understand the legal distinctions between trusts, partnerships and propriety limited companies.

[22] An Australian Securities and Investments Commission (ASIC) search of the ABN cited on the ATO Report reveals that the entity name associated with that ABN is the partnership Morgan and Mansour Family Trust and Morgan Family Trust.

[23] The Trust Deeds, which would reveal the identity of the Trustee, were not produced at the Hearing by either party, despite the Deputy President inviting Mr Morgan to do so.

[24] The ATO Document upon which the Deputy President relied appears to be inconclusive, as the ABN cited does not belong to the companies named as the employers. The ABN cited belongs to the trusts which Mr Morgan asserts employed Mr Duddington.

[25] Mr Morgan was invited by the Deputy President to tender the Trust Deed, which could have shed light on the identity of the Trustee and hence the legal entity responsible for employing Mr Duddington. Mr Morgan chose not to do so.

[26] It appeared at the Stay Hearing that, while Mr Morgan did face some language barriers, he did understand and could speak some English. To any extent that he did not understand the questions put to him by the Deputy President at the first instance hearing in relation to the identity of Mr Duddington’s employer, he was assisted at that hearing by a translator who swore an oath that they would translate thoroughly and accurately.

[27] Further evidence may assist in clarifying the true identity of Mr Duddington’s employer. However, without knowing what that evidence is, and therefore whether the appeal bench might admit it, I am unable to satisfy myself that Oscar’s Restaurant has an arguable case in relation to its first ground of appeal that the Appeal Application has a reasonable prospect of success.

[28] The second ground of appeal pressed by Mr Morgan at the Stay Hearing was that the compensation awarded was excessive, and was awarded when the decision finding Mr Duddington’s dismissal was unfair was already under appeal.

[29] Both parties were invited by the Deputy President to file submissions in relation to remedy within seven days of the date upon which the Decision was issued. The parties were informed that a decision in relation to compensation would be issued in due course. Oscar’s Restaurant elected not to file any submissions. In these circumstances, the Deputy President cannot be faulted for not taking into account information not put before him, nor can Mr Morgan assert that he was not on notice that a decision in relation to compensation was imminent.

[30] I am not satisfied that Oscar’s Restaurant has an arguable case with reasonable prospects of success in relation to its second ground of appeal.

[31] I am also not satisfied that the balance of convenience favours the granting of the Stay Application.

[32] The Stay Application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

N Morgan, Applicant.

Hearing details:

2017.

Perth:

July 19.

 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.

 3   WorkPac Pty Ltd v Bambach (2012) 220 IR 313; FWAFB 3206 at 14.

 4   Section 400(2) of the FW Act.

 5   Duddington v Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd [2017] FWC 2958 at [6]-[7].

 6   Ibid at [8]-[10].

 7   Ibid at [11]-[12].

 8   Ibid at [13]-[14].

 9   Ibid at [14].

 10   Ibid.

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