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C2015/4735, Transcript of Proceedings [2015] FWCTrans 433 (21 July 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052158



SENIOR DEPUTY PRESIDENT HAMBERGER

C2015/4735

s.604 - Appeal of decisions

Laser Bean Pty Ltd

and

Munckton
(C2015/4735)

Sydney

4.03 PM, WEDNESDAY, 15 JULY 2015

PN1

THE SENIOR DEPUTY PRESIDENT: Could I just have the appearances, please. That means if you each, in turn - well, you probably don t need to stand, it s probably easier, with the video, if you stay seated but if you can just both give your names, for the record.

PN2

MR STINEAN: My name is Ciprian Stefan Stinean, I m the director of Laser Bean.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN4

MS MUNCKTON: Ms Heather Munckton.

PN5

THE SENIOR DEPUTY PRESIDENT: Okay, thank you. Now, just so you understand, all we re dealing with here is Mr Stinean s application for a stay of the order for compensation that Bissett C made. So we don t need to run through the whole appeal this afternoon it s just for me to decide whether I should stay the order or not.

PN6

Now, I m not sure how much you know about these stay applications and the rules, but basically the principles to be applied in whether to grant a stay or not are really whether - it s a discretion for me to decide whether I should grant a stay and there are two issues I primarily need to consider. Whether there s an arguable case with some reasonable prospects of success for the appeal, so that s one. Also - and that s both in respect - in an appeal of this kind you need to get permission to appeal and it has to be in the public interest that an appeal is allowed also then you need to win the appeal. Also, the second issue is whether the balance of convenience would favour granting the stay. Are there any questions you want to ask about that, Mr Stinean, do you understand that? Okay, over to you then, really, you can explain why I should grant the stay.

PN7

MR STINEAN: Okay. If you don t mind, I have some notes here that I would like to read, if that s okay?

PN8

THE SENIOR DEPUTY PRESIDENT: That s okay.

PN9

MR STINEAN: So I ll refer to Laser Bean and myself as the applicant in these notes. So the applicant pursues the stay, the applicant s appeal is pursued in the ordinary way. The applicant seeks relief from the execution of the judgment by the respondent. Clearly the execution of the judgment has the prospect of advancing the respondent s position, including particularly two points; one, obtaining the compensation award in circumstances where, as a single parent with a young child, the prospects of repayment, if the appeal is successful, appear minimal and possibly do not exist. Two, further the requirement to pay this amount of money at this stage might stultify the applicant s capacity to conduct the appeal.

PN10

There is insufficient time, after notice of this hearing, to present a comprehensive submission. An adjournment for no less than two weeks would be required for the applicant to present the written submission on the merits of the appeal as a consideration in relation to the stay. The applicant cannot say why this application is called on at such short notice - - -

PN11

THE SENIOR DEPUTY PRESIDENT: It is standard practice. The general presumption is, there s been an order made that you should pay compensation. When you lodge an appeal that is effectively stayed temporarily until a stay hearing of this nature is dealt with, but it is usual to bring these on at very short notice. There s nothing special about this, this is normally how it s done. It s not a full appeal, it s purely the issue of whether to grant a stay. I m not going to adjourn it, we need to deal with this this afternoon.

PN12

MR STINEAN: Regardless, one day is insufficient to prepare any worthwhile submission. Without limiting the generality of the content of such submission, it is the applicant s position that there was a lack of procedural fairness in the processes employed in the hearing.

PN13

THE SENIOR DEPUTY PRESIDENT: Can I ask you to - yes, you might be about to do this, but can I ask you to expand on that? Can you explain what you mean by that?

PN14

MR STINEAN: Yes. For example Bissett C invited the respondent to provide further information regarding the quantum of her compensation claim. In contrast, when the applicant presented with five statements of witnesses Bissett C rejected the statements, ignored their content as there would not be oral evidence and provided no opportunity to arrange oral evidence.

PN15

THE SENIOR DEPUTY PRESIDENT: I m sorry, I m not sure why that s a breach of procedural fairness.

PN16

MR STINEAN: That is, in spite of a six week delay before close of the hearing and finalising quantum of compensation. Further, in the applicant s submission on penalty, reference was made to the pending KordaMentha advice, sought on financial issues by the applicant but not yet received.

PN17

Again, Bissett C ignored the existence of the pending advice, ignored it s obvious relevance to the question of penalty, provided no equivalent invitation to that which is provided to the respondent and proceeded, in the absence of any evidence of commercial difficulty.

PN18

THE SENIOR DEPUTY PRESIDENT: Sorry, I m just - sorry, I want to make sure I understand what you re saying. There was a separate hearing on the issue of remedy, wasn t there? There was a decision - Bissett C issued a decision on 30 April finding that the termination of employment was unfair. Then she - were you given an opportunity to put on material - what happened then, in terms of - she had a separate hearing, didn t she, to deal with the issue of compensation, is that right? Was there a hearing for that?

PN19

MR STINEAN: Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: And you were given an opportunity to present information at that hearing?

PN21

MR STINEAN: Yes.

PN22

THE SENIOR DEPUTY PRESIDENT: So what was the lack of fairness?

PN23

MR STINEAN: Well, basically, in the - in my submission on penalty I made reference to pending KordaMentha, which is a forensic accounting company, advice, sought on financial issues by the applicant, myself, but not yet received. So I didn t receive the advice yet. Basically Bissett C ignore the existence of the pending advice and ignored the relevance to the question of penalty of this advice and provided no equivalent invitation to that which is provided to the respondent and proceeded, in the absence of any evidence of commercial difficulty.

PN24

THE SENIOR DEPUTY PRESIDENT: But you didn t put on any evidence.

PN25

MR STINEAN: No, because I haven t received it yet. It was mentioned in my submission, but it hasn t been taken into her decision.

PN26

THE SENIOR DEPUTY PRESIDENT: Okay. But this is evidence that you didn t provide because you didn t have it.

PN27

MR STINEAN: I didn t have it.

PN28

THE SENIOR DEPUTY PRESIDENT: So what do you say she should have done? What should she have done?

PN29

MR STINEAN: Well, I was - we were looking to, obviously, receive the advice from KordaMentha and provide Bissett C with the advice. But Bissett C has - she ignored the relevance of the advice to the question of the penalty and she made the decision without seeing it.

PN30

THE SENIOR DEPUTY PRESIDENT: Okay.

PN31

MR STINEAN: May I continue? Can I continue?

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, carry on.

PN33

MR STINEAN: So these circumstances are one of the foundations of the applicant s contention in the appeal that there is a lack of procedural fairness. Further, the applicant applied for the transcript and was provided the transcript in the case book. The transcript was applied for and paid for two weeks ago today. There is presently no transcript provided and no response to the request to indicate when the transcript will be provided. It appears the efficiency at least in this hearing is not shared by the transcript service.

PN34

In all the circumstances, on such short notice and within the capacity of any party to properly develop a case on the stay point, this matter should be adjourned for no less than two weeks with an interim stay granted. If an adjournment is granted the applicant undertakes to file and serve a comprehensive written submission on the question of stay. This submission will include a preliminary and comprehensive dealing with the issues of substance on the appeal.

PN35

THE SENIOR DEPUTY PRESIDENT: Just on your - in your notice of appeal, you ve dealt with the issue of unfair process, but you said that the Commissioner applied a standard which was not the Australian public standard. What are you referring to there?

PN36

MR STINEAN: That I received assistance for applying to this appeal and these are terms that I don t really understand myself.

PN37

THE SENIOR DEPUTY PRESIDENT: Okay. Are you - - -

PN38

MR STINEAN: I have no legal training of any sort.

PN39

THE SENIOR DEPUTY PRESIDENT: I understand. Okay. But can I also ask you then, and you may not be able to help me, under the notice of appeal, under the heading of public interest, you said that the - you said:

PN40

Issues of public interest arise in relation to this appeal may include -

PN41

And the first one you say is:

PN42

in what place this tribunal sees the concept of trial in the employment contract and process and whether on the basis of this decision a trial has any standing in Australian law at all.

PN43

Are you able to elaborate on what that s referring to?

PN44

MR STINEAN: As I say, I have no legal training and the statements are a bit over my understanding.

PN45

THE SENIOR DEPUTY PRESIDENT: But when it comes to the appeal, or there s going to be a hearing for the appeal, you re going to have to present your case.

PN46

MR STINEAN: Yes.

PN47

THE SENIOR DEPUTY PRESIDENT: Are you going to be presenting it yourself, or are you going to be seeking legal representation?

PN48

MR STINEAN: I will get someone to present it for me.

PN49

THE SENIOR DEPUTY PRESIDENT: Okay.

PN50

MR STINEAN: If that s possible.

PN51

THE SENIOR DEPUTY PRESIDENT: Did you have anything you want to add?

PN52

MR STINEAN: No. Basically, as I said, if an adjournment is granted - - -

PN53

THE SENIOR DEPUTY PRESIDENT: I ve already indicated I m not going to grant an adjournment. I m not going to grant an adjournment, but if you ve got anything else you want to say - in other words, you re not going to get another chance on the stay, this is your chance to say something.

PN54

MR STINEAN: Fair enough. As I said, we didn t actually get the chance to put any worthwhile submission, a comprehensive written submission because of the short notice and obviously the lack of transcript. We re supposed to actually add the transcript to the case book, but we haven t received the transcript. We were supposed to receive it in five days but it s been more than two weeks. It s been two weeks since we applied and we haven t received it yet. Without the transcript it s hard to file and serve a comprehensive written submission on the question of stay.

PN55

THE SENIOR DEPUTY PRESIDENT: Okay. Thank you, Mr Stinean. Ms Munckton, did you wish to say anything?

PN56

MS MUNCKTON: I don t believe that there are any grounds for appeal, as the respondent s appeal is merely a rehash of the hearing and doesn t constitute grounds of appeal. The respondent says the process was unfair and biased, but he had the same opportunity to make his case, call and cross-examine all witnesses and supply answers to the Commission when asked as I did. But as he doesn t like the result he wants to try and have a second go at it. The respondent challenges and targets Bissett C s decision making skills and he simply challenges a conclusion he doesn t like.

PN57

Commissioner, I think if you read the transcript of the hearing and the appeal book, you will see that the respondent s language and demeanour towards myself, as well as Bissett C, throughout the entire process lacks respect and is quite unpleasing. Furthermore, by reading the appeal book you can come to the conclusion that the appeal has no prospect of success, either for permission to appeal or on the substantive merits and is it just feels he is trying to delay any payments to myself.

PN58

In addition to this, the judgment of the unfair dismissal was made on 30 April 2015 whilst the compensation amount decision was made on 22 June 2015. Since the judgment on the unfair dismissal was made in April why is it that he s only feeling now it s necessary to apply for an appeal against the decision?

PN59

THE SENIOR DEPUTY PRESIDENT: So the appeal was - so the decision was on 22 June, the order, and the notice of appeal was lodged on 13 July. So it was - it s slightly out of time, but only by a few days, yes. Is that out of time?

PN60

MS MUNCKTON: Yes. Because the decision for unfair dismissal was made on 30 April.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, but there hadn t been a decision on remedy.

PN62

MS MUNCKTON: Yes. Then in regard to that he did it on, I believe, the very last day. So if he wanted to appeal it he should have done it from the very start, if he didn t agree with that.

PN63

THE SENIOR DEPUTY PRESIDENT: Do you - - -

PN64

MS MUNCKTON: In regards to the - - -

PN65

THE SENIOR DEPUTY PRESIDENT: Sorry.

PN66

MS MUNCKTON: Sorry.

PN67

THE SENIOR DEPUTY PRESIDENT: Do you understand - - -

PN68

MS MUNCKTON: In regards to - - -

PN69

THE SENIOR DEPUTY PRESIDENT: Can I just butt in for a sec? Sorry. If you - if the appeal proceeds - if I don t grant a stay that means that the respondent has to pay you the money forthwith. But you understand that if the respondent is ultimately successful with their appeal, then you ll have to pay the money back.

PN70

MS MUNCKTON: Yes.

PN71

THE SENIOR DEPUTY PRESIDENT: How can I be - - -

PN72

MS MUNCKTON: So in regards - - -

PN73

THE SENIOR DEPUTY PRESIDENT: Yes?

PN74

MS MUNCKTON: - - - to the stay order, I request that it s paid into an interest bearing account that neither one of us can touch until the hearing is completed.

PN75

THE SENIOR DEPUTY PRESIDENT: Okay.

PN76

MS MUNCKTON: The appeal decision and everything is finalised.

PN77

THE SENIOR DEPUTY PRESIDENT: Okay. Do you - well, perhaps I could ask Mr Stinean. Do you have an accountant who would have a trust account? Because normally what happens with - sorry? Normally what happens is precisely what Ms Munckton has just suggested, happens with this. If a stay is granted, usually what happens is the appellant is not required to pay the money to the applicant until the appeal - until the whole matter is determined in the appeal but the money is put into an interest bearing account that s held independently. Now, the Commission doesn t have any such accounts but normally the - well, can I - well, Ms Munckton, do you have a lawyer or some other person who could act as a trustee for the money? Because obviously the risk would be, with all due respect, if you get the money and then you go off and spend it and then you lose the appeal you will have to pay it back and the worry of the Commission would be that you wouldn t be able to pay it back.

PN78

MS MUNCKTON: Yes.

PN79

THE SENIOR DEPUTY PRESIDENT: But your suggestion of it being paid into an independent account, interest bearing account, is a good one, but do you have anyone who could do that? Who has such an account?

PN80

MS MUNCKTON: I do not. I don t know how it works, but I know that that s a possibility of it being paid into an account and like I obviously don t want to have to pay the money back. I wouldn t plan on spending it anyway, but if - I wouldn t want to have to pay it back at the end and I just wanted it to be put into an account so that once it s all finished it can just be paid and finished and be done with.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes. This is a practical issue of who has such an account. I mean, Mr Stinean, you must have an accountant, do you? The business would have

PN82

- - -

PN83

MR STINEAN: Yes. I m in the process of finding one. I had some issues with my old accountant and I wouldn t like to appeal to his kindness.

PN84

THE SENIOR DEPUTY PRESIDENT: Okay. Well, Ms Munckton, sorry, I don t know if I let you finish, did you have anything more you want to say?

PN85

MS MUNCKTON: Well, no, but with this, if, like, I am happy to have it paid into an account that doesn t get touched, on my behalf, I don t have an accountant or a lawyer or anything like that, but I do have an account that I don t touch.

PN86

THE SENIOR DEPUTY PRESIDENT: So if the money was paid to you until the appeal was finalised, you could put it in that account and you will give an undertaking to the Commission not to touch the money until the appeal is determined and if you re - obviously, if the appeal is dismissed then it s your money. If the appeal is successful then you would have to pay the money back. So can you do that?

PN87

MS MUNCKTON: Yes.

PN88

THE SENIOR DEPUTY PRESIDENT: You could put it in such an account?

PN89

MS MUNCKTON: Yes, 100 per cent.

PN90

THE SENIOR DEPUTY PRESIDENT: Okay. Mr Stinean, did you want to say anything in response?

PN91

MR STINEAN: Yes, look, I don t believe - if it s not a trust account I don t believe if the appeal is successful I m going to get the money back, so it s just a matter of -

PN92

THE SENIOR DEPUTY PRESIDENT: Okay. Right. So I ll give you my decision on this now. The person aggrieved by a decision made by a single member of the Fair Work Commission may only appeal a decision with the permission of the Commission. Unlike appeals against decisions made under other provisions of the Act, 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. If an error of fact is said to have been made by the first instance decision maker, in this case that s Bissett C, in an unfair dismissal remedy related decision, an appeal will only be available if that error of fact is a significant error of fact.

PN93

More generally, other errors said to have been made by a first instance decision maker must be of a kind identified in the case of House v The King, so it s got to be - they re discretionary decisions and the Commissioner, in this case, has a fair degree of discretion as to what decision she made. You have to show that her discretion is miscarried. The principles that are to be applied in considering whether to grant a stay order should be applied in the context of the statutory constraints, on appeals of this kind.

PN94

So, as I said before, it s well established that in deciding whether to exercise a discretion to grant a stay order, the Commission must first be satisfied 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.

PN95

Now, I ve obviously had regard to the notice of appeal and I ve heard what Mr Stinean and what Ms Monckton have said today and on that basis I am not satisfied that the appeal - that there is an arguable base - there is a reasonable prospect of the appeal being successful, especially given that you have to get permission to appeal and that that requires that the appeal is - the granting permission is in the public interest, I m not persuaded that there s an arguable case.

PN96

In those circumstances I don t need to consider the issue of balance of convenience because I believe that I can t grant the stay on that basis. However, - well, on that basis I m not granting the stay and the order, therefore, is enlivened and that means, Mr Stinean, you need to pay the applicant the money that you were ordered to by Bissett C.

PN97

Now, as a matter of practicality, you are still entitled to pursue your appeal. While I ve indicated that I don t think you ve got a case to win the appeal you might, when it comes to it - it s, I suppose, theoretically possible that you might still be successful. If you are - if the appellant is successful, Ms Monckton, you need to be aware that you will have to pay the money back, or you would have to pay the money back, in that eventuality. As I ve said, I don t consider that a likely prospect, but it is a theoretical prospect.

PN98

So, Ms Munckton, your suggestion previously that you d put it in a separate account, which you won t touch until after the appeal is a good one, but I m not granting an order to that effect. So has anyone got any questions? Do you understand what I ve said? Okay. Thanks very much. Thank you. We ll adjourn.

ADJOURNED INDEFINITELY [4.26 PM]


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