Appeal by Virgin Australia International Airlines Pty Ltd [2013] FWC 624 (25 January 2013) [2013] FWC 624 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.604 —Appeal of decision Virgin Australia International Airlines Pty Ltd T/A Virgin Australia v David Taleski (C2013/2810) DEPUTY PRESIDENT SMITH MELBOURNE, 25 JANUARY 2013 Appeal against decision [ [2013] FWC 93 ] of Commissioner Cribb at Melbourne on 11 January 2013 in matter number U2011/12885 - stay order. [1] The following decision (now edited) was given on transcript on 24 January 2013. [2] On 23 January 2013, Virgin Australia International Airlines Pty Ltd (“Virgin International”) lodged an appeal against a decision of Commissioner Cribb in which she reinstated Mr. D. Taleski in his employment with the company. In its appeal Virgin International seek a stay of the Commissioner’s decision, given that Mr. Taleski was to resume duties tomorrow. Section 606(1) of the Fair Work Act 2009 provides: “If, under section 604 and 605 , FWC hears an appeal from, or conducts a review of, a decision, FWC may (except as provided in subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that FWC considers appropriate, until a decision in relation to the appeal or review is made or FWC makes a further order.” [3] Before a stay order is granted the Commission is required to be satisfied that an arguable case exists with some prospect of success and that the balance of convenience favours the granting of a stay. [4] The conventional test for granting a stay order was considered by Vice President Ross (as he then was) in Kellow-Faulkner Motors Pty Ltd v Edge Hill . 1 That approach was subsequently confirmed by a full bench. 2 [5] To begin, Ms. Moody for Virgin International, argued that there were significant errors of fact in the Commissioner’s findings on the evidence. These matters went to findings in relation to the medical certificate and Mr. Taleski’s intention to comply with the company’s Look Book. [6] In addition, it was argued that the Commissioner was in error in concluding that a decision had been made to terminate the employment of Mr. Taleski at a meeting on 18 October which is said to have been relevant to his opportunity to be heard prior to the termination of his employment. [7] Virgin International argued that the Commissioner also had made errors of law in the approach to valid reason. It is argued that the Commissioner failed to give sufficient weight to the evidence of Virgin International. Virgin International puts into contention the conclusion of the Commissioner that the company had not properly applied its policy in a consistent manner. Finally, Virgin International challenged the reinstatement of Mr. Taleski as an appropriate remedy. [8] As to the issue of permission to appeal, Virgin International raised a number of issues which it argued are in the public interest, including the right of an employer to require its employees to provide medical evidence of a particular type and quality to support exemption from compliance with the employer’s policy. [9] For Mr. Taleski, Mr. Addison argued that the appeal was a rehash of the hearing below and did not constitute grounds of appeal. Rather, it was simply challenging a conclusion it didn’t like. It was submitted that the appeal had no reasonable prospect of success, either for permission to appeal or on the substantive merits. [10] In relation to the balance of convenience, Mr. Addison accepts the submission put by Ms Moody in relation to any moneys owed being put into an interest-bearing account. [11] Essentially, Virgin International wish to have tested the conclusions of the Commissioner in four areas: the contents of a medical certificate and its relationship to the work to be performed; the intention or otherwise to comply with policies of the company; the acceptance or otherwise of the business processes of the company in relation to grievances; and the consistent implementation of company policies. [12] I am satisfied that an arguable case exists and that there is a reasonable prospect of success for permission to appeal to be granted. As to the balance of convenience, this is accepted by Mr. Addison and no issue is taken with the conclusions of the full bench in Coal and Allied Operations Pty Limited v Crawford and Ors . 3 [13] An order 4 will issue staying the decision of Commissioner Cribb on the basis that the appellant pay into an interest-bearing account the lost remuneration ordered to be paid to the respondent estimated to be in the vicinity of $26,000. DEPUTY PRESIDENT Appearances : Ms S Moody of counsel for Virgin Australia International Airlines Pty Ltd Mr M Addison for Mr D. Taleski Hearing details: 2012. Melbourne and Brisbane (via Video Link) January, 24 1 Print S2639 2 Print S4216 3 [2001] AIRC 801 4 PR533538 Printed by authority of the Commonwealth Government Printer <Price code A, PR533567>