[2012] FWAFB 5933 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT |
SYDNEY, 12 SEPTEMBER 2012 |
Appeal - s.604 Fair Work Act - unfair dismissal - extension of time for making of application - permission to appeal not granted.
[1] This is an appeal by Donna Muir McMeeken (the Appellant) pursuant to s.604 of the Fair Work Act 2009 (the Act), against a decision of Commissioner Williams. 1 In the decision, the Commissioner refused to extend the time for the making of the Appellant’s application for an unfair dismissal remedy.
[2] The background to the appeal may be briefly described as follows. The Appellant was employed by Action Industrial Catering Pty Ltd (the Respondent) from 8 October 2010 until 25 August 2011. During June 2011, the Appellant suffered a workplace injury which resulted in both physical pain and depression. During August 2011, the Appellant requested and was granted leave so that she could visit a close relative/friend who had become gravely ill. On 25 August 2011 the employment of the Appellant was terminated for serious misconduct by reason of her failure to comply with the Respondent’s Journey Management Practice. This failure was alleged to have placed the Appellant’s and her work colleagues’ safety at risk.
[3] The unfair dismissal application was filed with Fair Work Australia (FWA) on 14 October 2011, approximately five weeks outside the standard 14 day period for making such applications. The application was referred to the Commissioner. The Commissioner advised the parties that he would need to consider whether, given that the application was made out of time, FWA should allow a further period for the making of the application. 2 The parties were invited to provide written submissions on this matter and were advised that the Commissioner proposed to determine the matter on the papers and without a hearing. Following the receipt of submissions, the parties were advised by the Commissioner that it seemed that the difference between them did not involve a dispute about the facts and consequently there was no need to conduct a hearing and the matter could be determined on the papers.
[4] In the appeal, it was submitted by the Appellant that the Commissioner had erred in various respects in the consideration of whether an extension of time should be granted. These included the assessment of the evidence as to the Appellant’s medical condition at relevant times and the effect that this had on her capacity to make an unfair dismissal application. It was also said that the Commissioner, in deciding not to conduct a hearing in relation to the matter, had failed to seek the views of the parties as required by s.399 of the Act. It was also submitted that the Commissioner failed in that he did not give adequate reasons for his decision.
Consideration
[5] Subsection 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 14 days after the dismissal took effect or “within such further period as FWA allows.” Although a discretion is given to extend the time for the making of an application, such an extension can be allowed only where FWA is satisfied that there are exceptional circumstances. The factors to be taken into account in determining whether there are exceptional circumstances are set out in s.394(3). The subsection provides:
“(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[6] In his decision, the Commissioner considered the various factors referred to in s.394(3). In particular, the Commissioner considered the reasons given by the Appellant to explain the delay in making the application. The Commissioner referred to the Appellant’s evidence regarding the effect on her health of the death of her de facto parent, the ongoing pain from her injury and the termination of her employment. Reference was also made to the Applicant’s contacts with WorkCover and the Fair Work Ombudsman (FWO) and the advice received from those bodies; the evidence regarding the hospitalisation of the Appellant between 24 and 30 September 2011; and medical evidence as to the mental and physical health of the Appellant during the relevant times.
[7] The Commissioner took the view that, in considering the explanation for the late lodgement of the application, the most critical period is the 14 days following the termination. In relation to this period the Commissioner found as follows:
“[29] The evidence is that during the two weeks after her dismissal the Applicant was quite capable of making enquiries about her rights and did so through WorkCover. The Applicant was quite capable of following that advice and did so by making further enquiries through the FWO in all probability shortly after 29 August 2011. During this period the Applicant was also capable of interacting with her employer by email and raising queries with them. Her doctor’s assessment of her health problems at this time was these were limited to shoulder, neck and back pain only.
[30] Considering this evidence and the evidence that the Applicant’s health and well-being later declined to the point on 24 September 2011 where she was admitted to hospital for six days it is my conclusion that during the first 14 days after her dismissal the Applicant was not prevented by ill-health or other reasons from making an application to Fair Work Australia.”
[8] The Commissioner accepted that the Appellant’s ill health and hospitalisation did prevent her from making the application in the period 24-30 September, but noted that after she left hospital she continued her efforts in relation to her workers compensation claim and in seeking advice regarding her termination of employment. Overall, the Commissioner was satisfied that there was an acceptable explanation for only approximately two weeks of the five week delay in making the unfair dismissal application.
[9] The Commissioner took into account the other factors referred to in s.394(3). In this regard, the actions taken by the Appellant to dispute the dismissal were noted (s.394(3)(c)). There was no suggestion as to any particular prejudice to the employer if a further period to make the unfair dismissal application was allowed (s.394(3)(d)). In regard to the merits of the application, the Commissioner noted the arguments by both the Appellant and the Respondent regarding the circumstances of the dismissal and found that the factor was neutral for the question of whether an extension of time should be granted (s.394(3)(e)). The Commissioner found that fairness as between the Appellant and other persons in a similar position was not relevant to the matter (s.394(3)(f)). It is noted that the Appellant was aware of the dismissal at the time that it took effect (s.394(3)(b)).
[10] The Commissioner concluded as follows:
“[45] The onus is on the Applicant to persuade Fair Work Australia that a further period should be allowed for her to make this application beyond the statutory time limit of 14 days.
[46] I have considered the information provided and the submissions by both parties on the relevant factors. Whilst I agree there is an acceptable explanation for some of the delay in making this application there is no such acceptable explanation for the majority of the period of delay. Significantly there is no acceptable explanation as to why the Applicant did not make this application within 14 days of her dismissal. The serious personal difficulties the Applicant experienced for a period of some weeks did prevent her from making the application but these largely developed after this 14 day time period had lapsed.
[47] The Applicant has not satisfied me that the circumstances she found herself in either individually or collectively amounted to exceptional circumstances that would warrant the Tribunal allowing an extension of time for her to make this application.”
Appeal Principles
[11] An appeal under s.604 of the Act involves an appeal by way of rehearing, with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. 3 The majority of the High Court in that case explained in the following passage how error may be identified where a discretionary decision is involved:
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process (See Norbis v Norbis (1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
‘If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so’ (55 CLR 499 at 505).”
[12] An appeal under s.604 of the Act may only be pursued with the permission of FWA. This would normally require an appellant to demonstrate an arguable case of appealable error and to refer to other considerations which would justify the granting of permission to appeal. Although s.604(2) requires FWA to grant permission to appeal if it is satisfied that it is in the public interest to do so, there is a note following the subsection to the effect that this does not apply in relation to an application to appeal from an unfair dismissal decision (see s.400). The effect of s.400 of the Act is that the general approach to dealing with appeals is varied in two significant ways in relation to appeals from unfair dismissal decisions. Firstly, in regard to the granting of permission to appeal, this may only be granted where FWA considers it is in the public interest to do so (s.400(1)). Secondly, where an appeal is based on error of fact, the appeal can only be made on the ground that the decision involved a significant error of fact (s.400(2)).
[13] We have considered the submissions presented in the appeal and the evidence and submissions before the Commissioner. However we are not satisfied that the Appellant has demonstrated that there is any arguable case of appealable error in the decision of the Commissioner.
[14] The Commissioner considered whether in all the circumstances of the matter it was appropriate to extend the period to allow the application to proceed. In so considering, the Commissioner had regard to the statutory provisions and the considerations in s.394(3). It has not been shown that the Commissioner made any significant errors in relation to the essential facts of the matter or that he failed to take into account matters of material relevance to the exercise of the discretion.
[15] Although it was submitted in the appeal that the Commissioner did not give sufficient weight to various aspects of the evidence, we consider that the determination of the appropriate weight to be given to the evidence was part of the overall assessment required to be made by the Commissioner in reaching his conclusion. The Commissioner had to be satisfied that there were exceptional circumstances such as to extend the period for the making of the application. The conclusion reached was within the bounds of the discretionary judgment that the Commissioner was required to make in relation to the matters before him. The principles from House v The King should be applied in such circumstances:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion...” 4
[16] It was also submitted in the appeal that the Commissioner erred in not seeking the views of the parties as to whether a hearing should be conducted. In this regard, we note that s.399 provides that a hearing shall not be conducted unless FWA considers it appropriate to do so, taking into account the views of the parties to the matter and whether a hearing would be the most effective and efficient way to resolve the matter.
[17] The Commissioner indicated in the directions given to the parties that it was proposed that the question as to the extension of time was to be determined on the papers. Having received the submissions of the parties, the Commissioner advised them that he considered that there was no real contest as to the facts and therefore that the matter could be determined on the papers and without the need for a hearing. The parties were aware of the approach that the Commissioner was going to adopt to the determination of the matter and raised no objection to that approach. In these circumstances, it cannot be maintained that the Commissioner failed to deal with the matter consistent with s.399 of the Act.
[18] It was also submitted in the appeal that the Commissioner did not give adequate reasons for his decision. We do not agree with this submission. The duty to give adequate reasons was discussed by the Full Bench in Barach v University of New South Wales 5 as follows:
“The duty to give adequate reasons for decision has been considered on many occasions. 6 Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.”
[19] The present matter involved the consideration of a preliminary jurisdictional issue regarding an application for relief in respect of termination of employment. In his decision, the Commissioner sets out the relevant principles to be applied in determining whether there were exceptional circumstances such as would justify the exercise of FWA’s discretion to extend the period of time for lodgement of the application. The Commissioner identified the key considerations relevant to the factors set out in s.394(3) and the conclusions that he drew from the evidence. In our view the Commissioner in his decision succinctly and sufficiently exposed the essential grounds as to why he decided that there were no exceptional circumstances as would warrant granting an extension of time.
[20] For all the above reasons, we have decided not to grant permission to appeal in this matter.
SENIOR DEPUTY PRESIDENT
Appearances:
K Trainer for the Appellant.
S Heathcote for the Respondent.
Hearing details:
2012.
Perth:
July 12.
2 See s.394(2)(b).
3 (2000) 203 CLR 194 at 205.
4 (1936) 55 CLR 499 at 504-5.
5 [2010] FWAFB 3307 at para 16.
6 See generally Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247, at 269-271, 280; Re Astec Pty Ltd (1992) 45 IR 261; Edwards v Giudice (1999) 169 ALR 89 at paras 10-11, 44-48; Alchin v Daley [2009] NSWCA 418 at para 35. Citations in original.
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