[2019] FWC 2135

The attached document replaces the document previously issued with the above code on 2 April 2019.

End note 3 has been amended to Kellow-Falkiner Motors Pty Ltd v Edghill (PrintS4216).

Associate to Vice President Catanzariti

Dated 3 April 2019.

Fair Work Act 2009
s.604—Appeal of decision

Ryan Wilks Pty Ltd
v
Puszka
(C2019/2016)

Appeal against decision [2019] FWC 1132 and order (PR705160) of Commissioner Cambridge at Sydney on 7 March 2019 in matter number U2018/8666 – application for stay – stay order refused.

[1] On 28 March 2019, Ryan Wilks Pty Ltd (the Appellant) lodged a Notice of Appeal against a Decision 1 and Order2 of Commissioner Cambridge reinstating Ms Trudi Puszka (the Respondent) to her employment with the Appellant.

[2] The Appellant’s Notice of Appeal seeks a stay of the whole of the Decision and Order pending the hearing and determination of the appeal. The Appellant’s application for a stay order was heard on 1 April 2019. Permission to appear was sought on behalf of the Appellant and Ms Puszka, Respondent, appeared on her own behalf. Having regard to s.596(2)(a) of the Fair Work Act 2009 (Cth) and for the purpose of efficiency, permission to appear was granted to the Appellant for the stay hearing only. It was made clear to the Appellant that it should not assume permission to appear would also be granted for the appeal and a separate application should be made.

[3] At the commencement of the hearing, it was noted that the Respondent had not received payment from the Appellant despite the Appellant advising the Respondent that it would make payment until the determination of the stay hearing. I asked the Appellant why payment had not been made prior to the stay hearing and it was stated that it could not calculate the correct amount owing to the Respondent.

[4] At the conclusion of the hearing, I informed the parties that I would not grant a stay of the Decision and Order and that I would publish my reasons.

[5] The appellant has filed an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act). Permission to appeal is required. Further, in the case of an appeal from a decision under Part 3-2 of the Act relating to unfair dismissals, as the current case does, permission to appeal will only be granted if the Commission considers it is in the public interest to do so. Also, in these types of appeals, to the extent there is alleged to have been an error of fact, then the appellant needs to establish that it was a significant error of fact.

[6] The approach to be taken to determining if a stay order should be made is to consider 3:

•  Whether there is a sufficiently arguable case, with some reasonable prospect of success, that permission to appeal would be granted and that the appeal would succeed; and

•  Whether the balance of convenience weighs in favour of the making of a stay order.

[7] The Appellant’s grounds of appeal submit that there are both errors of law and fact. Further, the Appellant submits that it is in the public interest for permission to appeal to be granted, particularly as the case raises issues of important and general application regarding the conduct of employees.

[8] With regard to the grounds of appeal relating to errors of law, I do not agree that the Commissioner erred in finding that there was not a valid reason for termination. The Respondent was summarily dismissed following her conduct during an after work hours farewell function on 20 July 2018. There were four identified aspects of the Respondent’s conduct which the Appellant found to represent serious misconduct upon which the summary dismissal was implemented. 4 The Respondent admitted to two aspects of the conduct alleged against her, namely that she was intoxicated to a point that she vomited and that she required assistance to leave the venue. The Respondent rejected the other two aspects of the conduct alleged against her, namely that she used insulting or disparaging remarks about employees of the Appellant and the Sydney Opera House (SOH) and that she made propositions of a sexual nature to a SOH employee.5

[9] The Commissioner found that those aspects of the reasons for dismissal which involved the Respondent allegedly disparaging employees of the Appellant and the SOH and allegedly making propositions of a sexual nature to a SOH employee had no basis in fact. 6 The Commissioner’s conclusion that there was no valid reason for termination therefore followed consideration of the evidence before him in relation to the conduct admitted to by the Respondent.

[10] Whilst the Commissioner may have been more refined in his language, his conclusion follows that the Appellant, having unsuccessfully argued two aspects of the reasons for dismissal, summarily dismissed the Respondent following her intoxication to the point of vomiting and the fact that she required assistance to leave the venue.

[11] Critically, there was no challenge by the Appellant to the Commissioner’s findings that the two aspects of the reasons for dismissal rejected by the Respondent had no basis in fact. With such findings undisturbed, the Appellant’s submission that the Commissioner erred in finding that there was no valid reason for dismissal is confined to the Respondent’s intoxication to the point of vomiting and that she required assistance to leave the venue. It was open for the Commissioner to conclude that ‘the misconduct of the applicant [the Respondent] cannot be construed to be of the nature and severity of serious and wilful misconduct that could provide valid reason for dismissal with notice, let alone summary dismissal’. 7

[12] Further, I do not agree that the Commissioner erred in ordering reinstatement. The Appellant allowed the Respondent to work unrestricted between the date on which it became aware of the nature and severity of the misconduct allegations against the Respondent, 25 July 2018, and the date of summary dismissal, 2 August 2018. The Commissioner’s conclusion that the Respondent’s conduct at the function ‘did not possess any characteristic of wilful attack against the employment relationship’ 8 and that there had not been a ‘genuine loss of trust and confidence such that the employment relationship should not be re-established’9 was entirely open to him.

[13] With regard to the grounds of appeal relating to errors of fact, the Commissioner’s findings in relation to no serious risk to the reputation or viability of the Appellant and the conduct of the Respondent as one act of inoffensive drunkenness reflect the nature of the evidence before him. It was open for the Commissioner to conclude that whilst the conduct of the Respondent at the function ‘would seem to be sound basis for the employer [the Appellant] to have implemented some form of disciplinary action’ 10 in respect to such conduct, such conduct ‘would not represent misconduct that provided a sound, defensible and well-founded reason for dismissal’.11

[14] At the hearing, the Appellant indicated their position that if the stay were granted then the money owed to the Respondent would be deposited into an interest earning account to be paid to the Respondent pending the determination of the appeal. The Respondent did not consent to this arrangement. The Respondent indicated that she had an unemployment insurance policy but as she had been reinstated she was unable to access her insurance unless the appeal was successful.

[15] I am not satisfied that the Appellant has made out a sufficiently arguable case, with some reasonable prospect of success, that permission to appeal would be granted and that the appeal would succeed.

[16] Given the above findings, I do not need to consider the issue of the balance of convenience.

[17] Accordingly, the stay application is refused.

VICE PRESIDENT

Appearances:

Ms L Saunders, counsel, with Ms J Zadel, solicitor, for the Appellant.

Ms T Puszka on her own behalf.

Hearing details:

Sydney.

2019.

April 1.

Printed by authority of the Commonwealth Government Printer

<PR706413>

 1   [2019] FWC 1132.

 2   PR705160.

 3   Kellow-Falkiner Motors Pty Ltd v Edghill (S4216).

 4   Decision at [45].

 5   Decision at [46].

 6   Decision at [59].

 7   Decision at [64].

 8   Decision at [64].

 9   Decision at [79].

 10   Decision at [61].

 11   Decision at [62].