Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2020] FWC 1660 of Deputy President Boyce at Sydney on 3 April 2020 in matter number C2020/476.

[1] Mr Alexander Mirow has applied for permission to appeal a decision of Deputy President Boyce issued on 3 April 2020[1] (decision). In that decision, the Deputy President refused to grant Mr Mirow an extension of time pursuant to s 366(2) of the Fair Work Act 2009 (FW Act) to file an application for the Commission to deal with a general protections dispute involving dismissal under s 365 of the FW Act. Mr Mirow contends in his notice of appeal and submissions that the Deputy President erred in determining that the delay in filing the application was not due to representative error and by failing to take into account that Mr Mirow suffered impaired cognitive ability resulting from a medical condition.

[2] On the basis of our consideration that Mr Mirow's application for permission to appeal could adequately be determined without oral submissions, and with the consent of the parties, the appeal has been conducted without holding a hearing and will be determined on the papers pursuant to s 607(1) of the FW Act.

[3] The factual background to this matter is as follows. Mr Mirow was formerly employed by Suez Pty Ltd (Suez) as a truck driver. On 14 November 2019, the Transport Workers' Union (TWU) filed on Mr Mirow's behalf an application for an unfair dismissal remedy pursuant to s 394 of the FW Act (UD application). The UD application contended that Mr Mirow had commenced employment with Suez[2] in November 2017, but had been dismissed effective from 24 October 2019 (with Mr Mirow being notified by mail of this on 29 October 2019). The reason for the dismissal was that Mr Mirow had failed to comply with a direction to attend a meeting arranged for 24 October 2019, and had failed to notify any inability to attend the meeting. This had apparently followed a number of earlier occasions when the same thing had occurred. The UD application alleged that the dismissal was unfair because Mr Mirow had suffered a workplace injury in April 2019, a workers' compensation claim in respect of the injury had been accepted, that in September 2019 a dispute arose concerning this claim, and that Mr Mirow had supplied worker's compensation certificates over this period. The remedies of reinstatement and compensation were sought in the UD application.

[4] On the same day (14 November 2019) at 1.26pm, Mr Mirow sent an email to the TWU asking whether he could "apply for any of the General protections or unlawful actions as well with the unfair Dismissal?" Mr Mirow alleged before the Deputy President that he received no response to this email from the TWU.

[5] The Commission's file for the matter discloses that on 28 November 2019, Mr Mirow wrote to the Commission stating "Hi there, Is it possible that I have the right application lodged as I believe the TWU have lodged the wrong application on my behalf please see attached". Attached were a number of documents relating to Mr Mirow's dismissal. The file notes that Mr Mirow was advised in response by telephone that he should contact the TWU to discuss this. On the same day, Mr Mirow (not the TWU) filed an unlawful termination application pursuant to s 773 of the FW Act (UT application). The file for the UT application discloses that when Mr Mirow lodged this application online on 28 November 2019, he made the following comment:

"I believe the TWU who was to make my application has made the wrong application for unfair dismissal when this should have been unlawful termination, I asked them to do this when they were about to make the unfair dismissal application, however they have not responded to me and I since realised this and I am trying to rectify this matter."

[6] Suez filed its response to the UD application on 10 December 2019. Relevantly, its response stated that it had no jurisdictional objections to the UD application. On 13 December 2019 Mr Mirow was advised by Commission staff by telephone that he could not pursue both the UD application and the UT application, and he would need to decide which application ne wished to proceed with. Mr Mirow advised that he wished to proceed with the UD application and would discontinue the UT application. Accordingly the Commission treated the UT application as having been discontinued.

[7] A telephone conciliation in relation to the UD application occurred on 16 December 2019. The file notes that that matter was placed on hold until 18 December 2019 to allow Mr Suez to obtain legal advice. On 19 December 2019, Mr Mirow sent an email to the TWU in which he wholly rejected a settlement offer made at the conciliation conference, expressed his concern as to why the TWU had filed the UD claim and not a general protections dismissal claim on his behalf as well as raising a number of other matters, and sought a referral to a law firm. He apparently received an out-of-office automatic reply from the TWU which advised that the TWU offices had closed for the Christmas/New Year period and would re-open on 6 January 2020. However it appears that at some stage around this time the TWU verbally advised Mr Mirow that it would not be representing him further and that he would have to arrange his own representation.

[8] On 20 December 2019 Mr Mirow sent the TWU an email stating: "I am waiting for TWU to respond to my previous email and if I do not receive any response I will be forced to have this matter taken further." The same day Mr Mirow requested to Commission staff that his UD application be referred to arbitration. Accordingly, the matter was recorded as not having been settled in conciliation, and was referred to a member of the Commission for arbitration. On 6 January 2019, Mr Mirow (not the TWU) filed a notice of discontinuance for the UD application on the basis that he wished to pursue an alternate application. On 28 January 2020, Mr Mirow filed the general protections dismissal application the subject of the decision under appeal.

[9] Section 366(1) of the FW Act provides that an application made under s 365 must be filed within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). Section 366(2) provides:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position.

[10] At the hearing before the Deputy President concerning whether an extension of time should be granted, Mr Mirow relied on a number of matters as reasons for the delay, including representative error on the part of the TWU and a medical condition causing impairment of his cognitive capacity. In the latter respect, he referred to "overwhelming anxiousness and panic attacks" as preventing him from lodging his general protections dismissal application prior to 28 January 2020. He also relied on an extract from a medical report from a psychiatrist dated 17 July 2019 which referred to him being in a depressed mood due to various workplace difficulties, but said "His insight and judgment are fair".

[11] In the decision, the Deputy President gave separate consideration to each of the matters required to be taken into account under s 366(2). In relation to the s 366(2)(a) consideration, the Deputy President initially noted that it was not disputed that Mr Mirow's date of dismissal was 24 October 2019, and accordingly that the 21 days to file a general protections dismissal claim expired on 14 November 2019.[3] The Deputy President then recounted the factual chronology of the matter, including Mr Mirow's email of 14 November 2019, and said in relation to Mr Mirow's discontinuance of his UD application:

"[20] On 7 January 2020, on his own initiative, the Applicant discontinued his UD Claim. When I questioned the Applicant during the hearing as to why he discontinued his UD Claim, he was unable to provide any reason/s for same, and stated that he had not sought any advice (legal or otherwise) in discontinuing his UD Claim. The inference I draw from the documentary evidence tendered by the Applicant at the hearing, namely two unanswered emails from him to the TWU (on 19 December 2019 and 7 January 2020), is that the Applicant had become disgruntled with the TWU's representation of him, and was otherwise determined to pursue a general protections dismissal claim (as he considered that such an application was the correct or 'better' claim to pursue)."

[12] The Deputy President went on to reject Mr Mirow's contention that the delay in filing his s 365 application was the result of "representative error" on the part of the TWU:

"[26] The pursuit of multiple claims in respect of the Applicant's dismissal was a decision made by the Applicant alone.

[27] The TWU lodged the UD Claim on the Applicant's behalf within the statutory time limit. There were no jurisdictional issues in respect of that claim. The Applicant himself chose to discontinue his UD Claim (i.e. the TWU did not advise him to do so).

[28] The Act prevents applicants conducting multiple claims in respect of a dismissal. Even if the Applicant did or had instructed the TWU to lodge multiple claims in respect of his dismissal, there was no correct legal basis for the TWU to do so.

[29] It is apparent that the Applicant's unlawful termination claim had no jurisdictional foundation to support it at the time it was lodged. It was a claim lodged by the Applicant alone. The Applicant obtained no advice from the TWU in respect of his unlawful termination claim. He obtained no advice from the TWU to discontinue his unlawful termination claim.

[30] The decision by the Applicant to lodge his GP Application was a decision made by him alone. He obtained no advice from the TWU in respect of the GP Application. He has obtained no advice from the TWU to continue his GP Application. He has obtained no advice from the TWU in respect of his request for an extension of time to file his GP Application.

[31] In view of the foregoing, no issue of representative error arises for determination in this matter. There is no evidence that the TWU acted or represented the Applicant poorly or wrongly. There is no evidence that the TWU misled the Applicant, and there is no evidence that the TWU made any misrepresentation/s to the Applicant in respect of any claim concerning his dismissal. To be clear, I reject the Applicant's assertion that his GP Application was visited upon by any representative error, or that any representative error contributed (in any way) to the lodgement (by the Applicant on 28 January 2020) of his GP Application out-of-time."

[13] The Deputy President also noted Mr Mirow's contention that he suffered from an anxiety and depressive disorder following the dismissal which contributed to the delay, and said:

"[34] The Applicant conceded during the hearing that he has not provided evidence to support a proper finding on either the existence, or the severity, of his alleged disorder. The Applicant says that he was unable to obtain a medical report to substantiate his assertions because he could not afford to obtain one. Even if that may be true, I cannot make a finding on the absence of evidence (regardless of the cause of that absence).

[35] Based upon the (lack of) evidence before me, I reject the Applicant's assertion that his 75 day delay in filing his GP Application was due (in part or in whole) to a medical condition."

[14] The Deputy President also rejected other matters raised by Mr Mirow as contributing to the delay, and determined that considered collectively the reasons for the delay advanced by Mr Mirow did not weigh in favour of any finding as to exceptional circumstances.[4] As to the remaining considerations in s 366(2), the Deputy President found that they were neutral or weighed against a finding of exceptional circumstances. The Deputy President concluded that there were no exceptional circumstances to warrant the grant of an extension of time.

[15] Mr Mirow contended that the Deputy President "erred in law and fact in determining that the Transport Workers' Union did not commit representative errors" when it represented him, and in this respect submitted that:

• the Deputy President acknowledged that the TWU ignored Mr Mirow's email of 14 November 2019, and therefore did not afford Mr Mirow a reasonable opportunity to secure advice regarding the prospects of a general protections claim;

• the Deputy President failed to consider the email of 19 December 2019 issued to the TWU requesting advice regarding why he never received a response to his email of 14 November 2019;

• but for the incompetence of the TWU in failing to appropriately provide advice to Mr Mirow, he would have been able to lodge a general protections application within the statutory timeframe;

• the TWU purports to be an employee representative body with the ability to provide their members with legal advice, and it was clear that the TWU had not completed its duties to the best of its abilities to represent the interests of Mr Mirow; and

• the Deputy President erred in finding that there had been no representative error by the TWU.

[16] Mr Mirow further contended that the Deputy President erred in law and fact in determining that his medical history did not impact upon the delay in the lodgement of his general protections dismissal application, and submitted that:

• Mr Mirow was unable to provide sufficient evidence of his medical condition due to a lack of funds to afford a report to support his contention;

• the Deputy President erred in failing to exercise his discretion "to recognise that the Appellant because of his injury and the termination would likely suffer from a medical condition";

• the Deputy President should have treated Mr Mirow as an employee likely to be suffering from an impaired cognitive ability or in any even allocated some weight to his submissions that he was suffering from an impaired cognitive state; and

• the Deputy President erred in finding that the cognitive impairment Mr Mirow was suffering from did not have any impact upon his ability to lodge the general protections application within statutory time.

[17] It was submitted that permission to appeal should be granted because of errors made by the Deputy President in relation to the facts and because a substantial injustice might result if leave was refused. Further, the decision was disharmonious when compared to that in Cannon v Quad Services,[5] where an employee suffered from a cognitive impairment and representative error which resulted in him lodging an unfair dismissal application out of time.

[18] Mr Mirow attached to his notice of appeal "further Medical reports as evidence in my appeal" which had not been provided to the Deputy President. These consisted of:

(1) A certificate of capacity/fitness issued by a medical practitioner on 27 September 2019. This certified that Mr Mirow had no current capacity for work from 27 September until 25 October 2019 due to "adjustment disorder with anxiety".

(2) A medical certificate dated 24 June 2019 diagnosing Mr Mirow with "generalised anxiety".

(3) A partial copy of a report prepared by a consultant psychiatrist, which diagnoses him as suffering from "an Adjustment Disorder with depressed and anxious mood" arising from various workplace difficulties long pre-dating his dismissal, which condition would likely continue for at least the next six to twelve months. The date of this report is not apparent, since the first three pages are not included, but it makes reference to his dismissal.

[19] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[6] There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:

• (1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made under the Registered Organisations Act by:

(i) the General Manager (including a delegate of the General Manager); or

(ii) the Registered Organisations Commissioner (including a delegate of the Commissioner);

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC.

[20] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[8] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters..."[9]

[21] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[10] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[11] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[12]

[22] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[13] A decision as to whether to extend time under s 366(2) involves the exercise of a discretion.[14] Usually such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly.[15]

[23] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[16]

[24] An important consideration in assessing whether permission to appeal should be granted either in the public interest or on a discretionary basis is whether the grounds of the appeal are reasonably arguable. In relation to Mr Mirow's appeal, there is a degree of discordance between the contentions of error contained in the notice of appeal and those explicated in Mr Mirow's submissions in respect of his application for permission to appeal, but we will proceed on the basis that the submissions are intended to perfect the contentions of error which Mr Mirow would propose to advance if permission to appeal were granted.

[25] We are not satisfied that Mr Mirow's contention that the Deputy President erred in finding that "representative error" was not a reason for the delay in the filing of Mr Mirow's general protections dismissal application nor a matter which pointed to the existence of exceptional circumstances is reasonably arguable. The Deputy President's consideration as to this issue involved the making of an evaluative judgment, and Mr Mirow does not point to any error of principle or significant error of fact in the Deputy President's consideration which is capable of giving rise to an arguable contention of appealable error. Mr Mirow relies in particular on his emails to the TWU of 14 November and 19 December 2019, but the Deputy President took these matters into account in reaching his conclusion that there was no representative error on the part of the TWU. Mr Mirow seeks in substance for the issue of representative error to be determined afresh if permission to appeal is granted rather than raising any genuine contention of appealable error.

[26] In any event, we are wholly satisfied that the Deputy President was correct in finding that there was no substance to the contention of representative error on the part of the TWU. We will proceed on the assumption that in filing the UD application on Mr Mirow's behalf, the TWU was acting as an organisation of employees of which Mr Mirow was a financial member. However it should be noted that the actual position in this respect is unclear, since Mr Mirow attached to his notice of appeal a series of email communications he sent to the TWU prior to his dismissal in which he complained about the TWU's representation of him in respect to various matters. In the last of these emails, dated 16 July 2019, Mr Mirow resigned from TWU membership and requested a full refund of his membership fees for the year.

[27] An industrial organisation does not act for its members on the same basis as a legal practitioner does for a client, and consequently any contention of "representative error" directed at an industrial organisation must be considered in a different context. The rules of an industrial organisation constitute a contract between the organisation and its members, but they rarely prescribe any particular action which the organisation is required to take in response to a member's grievance concerning their employment. What action, if any, a union decides to take on behalf of an individual member will usually involve a discretionary judgment by its officers having regards to the union's objects. Having determined to pursue a particular course of action on behalf of a member however, a union can be expected to act competently and diligently.

[28] In this case, as earlier noted, the TWU filed the UD application on Mr Mirow's behalf on 14 November 2019. Mr Mirow has repeatedly asserted at first instance and in respect of his application for permission to appeal that the UD application was not the "right application", but no basis for this assertion has ever been disclosed. The UD application was filed within the 21-day statutory timeframe for such applications, was jurisdictionally competent and, if successful, would have led to the remedies of reinstatement and compensation becoming available. It therefore appears to us that there is no reason to consider it not to be the "right application". We presume that this application was preceded by some form of communication passing between the TWU and Mr Mirow as to the basis upon which it intended to act on his behalf, but Mr Mirow gave no evidence about this before the Deputy President and accordingly the context in which the UD application was filed is not ascertainable.

[29] Mr Mirow, as earlier stated, relies upon his email of 14 November 2019 and the lack of a response thereto to found his contention of representative error. However the email only inquired, as we read it, as to whether a general protections dismissal application or an unlawful termination application could be filed in addition to the UD application. If the email had been responded to, the answer would have been "No", since multiple actions in respect of a single dismissal are not permitted under Pt 6-1, Div 3, Subdiv B of the FW Act. Therefore there is no foundation for the assertion that a response by the TWU to this email would have led to Mr Mirow filing a general protections dismissal application forthwith (which, in any event, would already have been out of time).

[30] Further, the chronology of the matter which we have outlined above discloses that the TWU's non-response to the email of 14 November 2019 could not possibly have constituted the reason for Mr Mirow's delay in filing his application because:

• Mr Mirow was able to file the UT application on 28 November 2019 (which he apparently prepared himself), which begs the question as to why he could not have filed his general protections dismissal application at the same time;

• Mr Mirow knew no later than 13 December 2019 that he could not file multiple applications in respect of his dismissal, and elected to proceed with the UD application;

• the email of 19 December 2019 from Mr Mirow to the TWU makes it clear that he had already formed the view at that time that the TWU should have filed a general protections dismissal application rather than the UD application, but the following day Mr Mirow requested that his UD application proceed to arbitration; and

• on 6 January 2020 Mr Mirow filed a notice of discontinuance in respect of his UD application on the basis that he wished to pursue an alternate application, but he did not file his general protections dismissal application until 28 January 2020, over three weeks' later.

[31] In respect of Mr Mirow's medical circumstances, it cannot be gainsaid that the Deputy President was correct in concluding that there was a lack of evidence to support his contention that a medical condition was a cause of the delay in filing the application. The only medical evidence before the Deputy President, as earlier stated, was an extract of a medical report dated 17 July 2019, a number of months before the dismissal, which stated that Mr Mirow had a depressed mood but with no significant effect on his insight and judgment. The contention that the Deputy President erred in finding that "the cognitive impairment Mr Mirow was suffering from" did not affect his ability to lodge his application within time is misconceived. The Deputy President made no such finding; he found rather that there was no evidence of such an impairment. The proposition that, notwithstanding this lack of evidence, the Deputy President should have found it "likely" that Mr Mirow was suffering from such an impairment and given this some weight is utterly without merit.

[32] We have given careful consideration as to whether permission to appeal should be granted on the basis of the additional medical evidence attached to Mr Mirow's notice of appeal, notwithstanding that no reason has been disclosed as to why this material could not have been placed before the Deputy President. The extract from the undateable psychiatrist's report suggests that Mr Mirow may have been suffering from an adjustment disorder with depressed and anxious mood during the period from his dismissal until he filed his general protections application. However, we do not consider that this evidence, if admitted on appeal, is demonstrative of an incapacity on Mr Mirow's part to file his general protections dismissal application much earlier than he did. The fact that he was able to file the UT application on 28 November 2019 demonstrates the opposite to be the case.

[33] The grounds of appeal and the appeal submission do not raise any issue of novelty, general application or wider importance. There is no basis for the proposition of disharmony between the decision under appeal and that in Cannon v Quad Services.[17] The Cannon decision turned on its own facts: in that case, the employee filed his application three days late and suffered from a congenital brain tumour which was found to affect his cognition.

[34] For the reasons given, we do not consider that the grant of permission would be in the public interest, nor do we consider that we should exercise our discretion in favour of the grant of permission to appeal. Permission to appeal is refused.

[1] [2020] FWC 1660

[2] The application described Suez as "Suez Recycling & recovery".

[3] [2020] FWC 1660 at [14]

[5] [2019] FWCFB 2097

[6] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[7] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]- [46]

[8] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

[9] [2010] FWAFB 5343, 197 IR 266 at [27]

[10] Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200, 84 IR 314 at 220; and Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [26]

[11] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

[12] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

[13] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

[14] Halls v McCardle and Ors [2014] FCCA 316

[15] House v The King [1936] HCA 40, 55 CLR 499 at [504]- [505] per Dixon, Evatt and McTiernan JJ

[16] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

[17] [2019] FWCFB 2097

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