Industrial Relations Commission of New South Wales CITATION: Bing Lee Pty Limited and Miguel Reyes [2005] NSWIRComm 391 Appellant: Bing Lee Pty Limited PARTIES: Respondent: Miguel Reyes FILE NUMBER(S): IRC4701 of 2005 CORAM: Kavanagh J CATCHWORDS: Application for grant of Stay - finding of fact challenged on appeal - arguable case - Order for reinstatement - employer offers to pay wages but provide no work - Stay and proposed term of stay not fair to both parties - balance of convenience Stay favours employer - wages quid pro quo (consideration) for employee's service - wages are for work - Stay refused Industrial Relations Act 1996 s187 LEGISLATION CITED: s188 Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 R v Post Master General (1876) 1 QBD 658 Transport Industry - Waste Collection and Recycling (State) Award [2000] NSWIRComm 236 CASES CITED: Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 HEARING DATES: 10/19/2005 EXTEMPORE JUDGMENT DATE: 10/19/2005 Appellant: Ms E.S. Brus of counsel Solicitors: Ms A. Harvey Coleman & Greig LEGAL REPRESENTATIVES: Respondent: Mr A.P. Joseph of counsel Solicitors: National Union of Workers, NSW Branch JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Kavanagh J Wed 19 October 2005 Matter No IRC4701 of 2005 BING LEE PTY LIMITED AND MIGUEL REYES Application by Bing Lee Pty Limited for leave to appeal and appeal from of decision and orders of Commissioner McKenna given on 26 August 2005 in Matters No IRC131 and 3129 of 2005 EX TEMPORE JUDGMENT (Stay application) [2005] NSWIRComm 391 1 HER HONOUR: This is an application brought by Bing Lee Pty Limited for a Stay of Orders of McKenna C. The appellant appeals under ss187 and 188 of the Industrial Relations Act 1996 a Decision of McKenna C in National Union of Workers, NSW Branch (on behalf of Miguel Reyes) and Bing Lee Pty Ltd [2005] NSWIRComm 1139 (published 26 August 2005) where she determined the dismissal of Miguel Reyes by Bing Lee Pty Limited was harsh, unreasonable and unjust under s84 of the Industrial Relations Act 1996. The learned Commissioner ordered the reinstatement of Mr Reyes and an amount of money to be paid to Mr Reyes as a partial back payment for time lost following his termination. 2 Mr Reyes was working in a full time capacity for the appellant as a storeperson in its warehouse. He had worked there for some four years with an unblemished record until, within a short time span, he was given three warnings and dismissed. The learned Commissioner in her Decision stated: 38 On balance, but not without hesitation when Mr Lee's evidence is taken into account, I have been satisfied the union has established a case that Mr Reyes should be reinstated to his former position, with continuity of service. Generally, there would be no real cause for a storeperson and the chief executive officer of a large organisation to have much, if any, interaction at the workplace and Mr Lee's own evidence indicated he would not ordinarily have interaction with classes of employees such as Mr Reyes. Thus, the issue of impracticability diminishes in a real and practical sense given the ordinary working environment, notwithstanding the evidence of Mr Lee concerning his attitude to Mr Reyes. 39 As to the return to work, Mr Reyes did not dump any catalogues after his warning and that does not remain an outstanding issue requiring any further action. Obviously, Mr Reyes should be properly instructed in the new stock control procedures that have been introduced since his dismissal and be advised of the consequences of a failure to adhere to them. I do not consider there is any cause to disturb the warning in relation to reporting accidents and incidents. Mr Reyes should ensure he adheres to the mandatory reporting requirements upon his return to work. 3 The considerations to be addressed by a court in determining a Stay Application were considered by the Court of Appeal in Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Those considerations have since been adopted by the Industrial Relations Commission of New South Wales and are conveniently recited in Transport Industry - Waste Collection and Recycling (State) Award [2000] NSWIRComm 236. In that case, the learned President, Wright J summarised at [19] the considerations to be derived from the discussion in Cambridge Credit : . . . (1) The mere filing of an appeal will not of itself provide a reason or demonstrate an appropriate case nor will it discharge the onus which the applicant bears. (2) A court has an appropriate discretion whether or not to grant the stay and as to the terms that would be fair if a stay be granted. (3) The onus is upon the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all the parties. (4) In the exercise of its discretion all consideration including the balance of convenience and the competing rights of the parties need to be considered and weighed. (5) Where there is a risk that the appeal will prove abortive or nugatory if the stay is not granted then the normal exercise of discretion will result in the grant of a stay. (6) Although, generally speaking, it is inappropriate in relation to an application for a stay to speculate as to the appellant's prospects of success, this does not prevent a court, in the context of considering the specific terms of the stay that will appropriately and fairly adjust the interests of the parties, from making a preliminary assessment as to whether the appellant has an arguable case. Submissions 4 Ms E.S. Brus, of counsel, for the appellant, directs the Commission's attention to the decision of the learned Commissioner at [39] and submitted the Commissioner made a determination on a question of fact as to the level of activity on the warehouse site of Mr Kenneth Lee, the company's Chief Executive Officer. This finding of fact is challenged. The appellant asserts Mr Lee is very active on the warehouse floor. 5 Further, Ms Brus submitted if the Commission does not grant the Stay, there is a risk the appeal will prove nugatory – as she succinctly phrased it, if Mr Reyes is re-instated: "it would be difficult to unscramble the egg". 6 In making the application for a Stay, Ms Brus submitted the appellant has respected the Order of the Commission and reveals the appellant has been, since the determination of the Commissioner, paying the full wages to Mr Reyes and the appellant will continue to pay the wages although the Order for a back payment of wages has not been met. Mr Reyes has also not been provided with any work by the appellant. Ms Brus submitted it is relevant to the consideration of the Commission that Mr Reyes has another part time position. 7 Mr A.P. Joseph, of counsel, appearing for the National Union of Workers, NSW Branch on behalf of Mr Reyes submitted this is not an appropriate matter to grant the Stay application. He submitted the criteria to be addressed by the Commission in the use of its discretion is that enunciated in Cambridge Credit. He further asserts Mr Reyes requires his reinstatement in full compliance with the Commissioner's orders. Consideration 8 The filing of an appeal does not of itself provide a reason or demonstrate that this is an appropriate case for a Stay of the Commission's Orders. This Commission has discretion whether or not to grant the Stay and the terms that would be fair if a Stay is granted. 9 In the exercise of my discretion, I consider all the issues raised on appeal including weighing up the balance of convenience and the competing rights of the parties. I also consider whether there is a risk the appeal will prove aborted or nugatory if the Stay application is not granted. 10 In the normal exercise of the discretion, while it is generally inappropriate to consider the prospects of success, I find however it is appropriate for me to consider whether the appellant has a prospect of success. 11 I consider the appellant has an arguable case in relation to the appeal. The appeal rests on overturning a finding of fact made by the learned Commissioner who heard the evidence related to the level of Mr Lee's activity at the warehouse. The Commissioner clearly weighed up the relevant evidence but preferred that of the respondent to the appeal (see [39] of Decision). The issue as identified will require a reassessment of oral evidence and a determination the finding of fact was "clearly", compellingly", "palpably" or "plainly" an error (Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 at [94], [97] - [98] per Kirby J). It cannot be said the appeal is futile. On the other hand, I must also observe the appellant's case is not without some degree of difficulty. 12 I have considered the respect given to the decision by the appellant and that this employee has been paid and continues to be paid. However, it is not for the performance of any work. No work has been offered to him. 13 A further issue before me is whether the payment of wages, without work, would be a fair term if the Stay is granted and whether such a term would be fair to both parties concerned, pending the appeal. 14 I reject the proposition advanced by the appellant that if the Stay application is not granted on its terms, the appeal would be rendered nugatory. The practical effect of the appellant being successful on appeal is that the decision of McKenna C as to reinstatement will be overturned. Notwithstanding I hold the view that there is an arguable case, I am also of the view if the Commissioner's decision is overturned on appeal, Mr Reyes can be terminated. 15 There was no evidence this employee was not a competent warehouse employee. There was no evidence that alternative duties have been offered pending the appeal. The proposition is Mr Reyes cannot return to work with Mr Lee present on the warehouse floor and Mr Reyes was justly terminated because Mr Lee holds full knowledge of the warehouse activities. 16 Ms Brus submitted the terms offered would support the grant of a Stay. In my consideration of the competing interest of Bing Lee, the employer, and Mr Reyes, the warehouse employee, I take into account the fairness to both parties and the willingness of the employee to work is also relevant. I do not believe a Stay would be fair to both parties. Further, I do not accept the offer of the appellant for the payment of wages without work until the appeal is decided is fair in the circumstances, particularly when it is revealed the appeal has not been finally prepared nor listed for hearing. I do not find the fact Mr Reyes is working part-time somewhere else persuasive. 17 At the heart of the Commissioner's decision was the reinstatement of the employee to his position, not the payment of wages. Wages as a matter of principle are paid for work done. There is no balance in the employer's proposition that the employee be paid for no work. Such a proposition only conveniences, in the circumstances outlined, the employer. It is old law, but relevant that wages are the quid pro quo – the consideration - for an employee's work, his service (R v Post Master General (1876) 1 QBD 658 at 663-4). 18 On the balance of convenience, given the evidence placed before me, I decline the Stay application. 19 The application made by the appellant for a Stay of the Orders made by McKenna C on 26 August 2005 is refused. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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