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[2024] FWCFB 272
General information, not legal advice.
Fair Work Commission (Full Bench)
2024-05-30
Original judgment source is linked above.
s.604 - Appeal of decision
Granny Smith Gold Mining Company Pty Ltd T/A Gsm Mining Company Pty Ltd
Appeal against decision [2024] FWC 759 of Deputy President Beaumont at Perth on 22 March 2024 in matter number U2024/1471 - permission to appeal refused.
[1] Mr Andrew Graham has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] of Deputy President Beaumont (Decision) delivered on 22 March 2024. In the Decision, the Deputy President declined to grant Mr Graham an extension of time to file his unfair dismissal application against Granny Smith Gold Mining Company Pty Ltd T/A GSM Mining Company Pty Ltd (Respondent). The Deputy President ordered that Mr Graham's application be dismissed.
[2] This matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
[3] The Decision records that Mr Graham's employment with the Respondent ended on 4 January 2022. Mr Graham contends that he was forced to resign. Mr Graham's application for an unfair dismissal remedy was filed on 12 February 2024, some 748 days out of time.
[4] Section 394(2) of the Act requires an application for an unfair dismissal remedy to be filed within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). Section 394(3) provides:
"(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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
(f) fairness as between the person and other persons in a similar position."
[5] The Decision considers whether there are exceptional circumstances justifying an extension of time under s 394(3). The Deputy President set out the relevant legal principles applying to a consideration of exceptional circumstances at paragraphs [20] to [21] of the Decision and the relevant test for exceptional circumstances in Nulty v Blue Star Group Pty Ltd.[2]
[6] The Deputy President then addressed each of the matters in s 394(3) of the Act that she was required to take into account. In relation to s 394(3)(a), the reason for delay, the Deputy President was not satisfied that the reasons advanced by Mr Graham to explain the delay in filing his application amounted to exceptional circumstances. In coming to this conclusion the Deputy President considered, at length, Mr Graham's primary submission that his mental health issues were the reason for the delay. This included a detailed consideration of the psychological progress report Mr Graham submitted as evidence relating to his mental health (PeopleSense Report). Having regard to the evidence before her and with reference to a number of relevant legal authorities, the Deputy President was not satisfied Mr Graham's mental condition adequately explained the delay.
[7] The Deputy President further found that other factors - such as non-work related stress factors, or Mr Graham's expectation of a response from the Respondent in relation to his bullying and harassment complaint - also did not justify the delay in filing the application.
[8] As to s 394(3)(b), (c) and (f), the Deputy President concluded that these matters were neutral considerations in relation to whether exceptional circumstances existed. In relation to s 394(3)(d), the Deputy President accepted the Respondent's submissions in relation to prejudice, including submissions that staff turnover since termination would impact on the ability of the Respondent to call witnesses, and that the extended period of time since termination may have impaired the recollection of other witnesses. The Deputy President also rejected Mr Graham' submissions that the Respondent would not suffer prejudice from the delay. Despite this, paragraph [57] of the Decision states "I am satisfied that the factor of 'prejudice' in this matter weighs towards a finding of exceptional circumstances..."
[9] With respect to the merits of the application under s 394(3)(e), after reviewing the key contentions of the parties, the Deputy President concluded that the application was not without merit and found that the merits of the application was a neutral consideration.
[10] Having considered all the factors in s 394(3) individually, at [69] the Deputy President concluded that she was not persuaded that exceptional circumstances existed, nor was she satisfied that it was fair and equitable to grant an extension of time.
[11] Mr Graham seeks permission to appeal the Decision under s 604 of the Act. There is no automatic right to appeal a decision, and an appeal may only be made with the permission of the Commission.
[12] A hearing to determine whether to grant 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.[3] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
[13] Not all errors are appealable errors. An appealable error in relation to a discretionary decision (such as the Decision before us) is an error in the decision-making process.[4] This will require the identification of error of the type described in House v The King,[5] that is, it must be shown that the decision maker:
acted on a wrong principle; or
has mistaken the facts; or
has taken into account irrelevant matters; or
has failed to take account of a material consideration.
Section 400 - public interest and significant error of fact
[14] In addition to an appeal establishing an arguable case of appealable error, this appeal is one to which s 400 of the Act applies. Section 400 provides:
"(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact."
"... the public interest might be attracted where a matter raises issues 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."
[16] Distilling the above statutory and legal principles, in considering whether to grant permission to appeal in this matter, the Full Bench must consider:
whether Mr Graham's grounds of appeal have established an arguable case of appealable error (noting that an appeal on a question of fact must involve a significant error of fact); and
whether granting permission to appeal is in the public interest.
[17] However, if the public interest is not enlivened, permission to appeal will not be granted even if there is an arguable case of appealable error.
Grounds of appeal and contentions regarding public interest
[18] Mr Graham has raised four grounds of appeal, which are summarised below.
[19] Mr Graham argues that the Deputy President erred in fact and in law in finding that the reasons given were "insufficient to explain" the delay in filing. The primary contention[9] made by ground one is that the Deputy President failed to consider or alternatively, failed to give sufficient weight to, medical evidence in the PeopleSense Report regarding the impact of stress on brain functioning. Rather, it is contended that the Deputy President gave excessive weight to other components of the PeopleSense Report which described Mr Graham as "congruent" and with "no disordered thought or content."[10]
[20] Mr Graham also raises the following contentions:
• The Deputy President erred by finding "at [37] that the appellant had made a decision not to lodge an application despite engaging in other activities."[11]
• The Deputy President misinterpreted the expert evidence in finding "at [38] that it was confined to the 21-day period when in fact a proper reading having regard to the question asked would result in a finding that it covered the whole period."[12]
• The Deputy President mistook the facts regarding Mr Graham's mental condition after November 2023, inferring that Mr Graham had recovered from his mental illness.[13]
• The Deputy President erred in finding at [40] that the PeopleSense Report was not required to complete the Form F2 application, as she failed to take into account that a paid agent has a professional obligation to obtain credible evidence prior to launching legal proceedings, particularly after such a long delay.[14]
[21] Mr Graham contends the Deputy President erred in fact and in law when considering s 394(3)(d) and finding that prejudice was a neutral factor. Relevantly, Mr Graham highlights an apparent inconsistency between the Deputy President's statement at [57] that "this matter weighs towards a finding of exceptional circumstances" and the Deputy President's acceptance of the Respondent's submissions on prejudice at [58] and rejection of Mr Graham's submissions on prejudice.[15] Further, Mr Graham submits that the Respondent did not lead evidence to establish its contention of prejudice caused by the delay.[16]
[22] Mr Graham contends that the Deputy President erred in fact and in law when she found the merits of the application were neutral. By his written and verbal submissions, Mr Graham contends that once the Deputy President found that his case was "not without merit" the matter of merit should not have been found a neutral consideration, but should have been weighed in Mr Graham's favour. Mr Graham argues that in this regard the Deputy President misapplied Telstra Network Technology Group v Kornicki (Kornicki).[17] It is further contended that Mr Graham demonstrated a substantive case of merit and that the Deputy President erred in "downplaying" evidence concerning Mr Graham's resignation.[18]
[23] Mr Graham contends that the Deputy President erred in law when she found at [68] that the test of exceptional circumstances is a "stringent one."
[24] Mr Graham argues that the appeal grounds trigger the public interest test because:
• "the question of mental illness impacting upon workers' rights raises issues of importance and general application."[19] In particular Mr Graham refers to a range of recent legislation relating to "psychosocial hazards" at work.
• It is unjust in all circumstances for Mr Graham to be denied the progression of his unfair dismissal case, particularly noting Mr Graham is a mature age worker with a mental illness.[20] The Appellant was not afforded a "fair go all round."
[25] Mr Graham contends that the Deputy President erred by failing to consider, or failing to give sufficient weight to, a section of the PeopleSense Report relating to the impact of stress on brain functioning. The relevant paragraph from the Report is quoted below, with the section Mr Graham contends the Deputy President did not properly consider underlined:
"If he was to take action in the Fair Work Commission Andrew should have done that within 21 days. It is now beyond that period. Is there a medical reason or support for this delay in wanting to take action?
Based on the information obtained from Mr Graham, it is possible that the stress experienced in relation to reported stressors in his work and personal life may have impacted Mr Graham's ability to make decisions and take action in the form of contacting the Fair Work Commission within 21 days of resigning from Gold Fields. Stress has been found to impact on one's ability to make decisions, including the brain resorting to making habitual decisions rather than making new decisions as it exerts less demands on cognitive resources. In addition, stress can affect the brain's ability to access the information it needs to make logical decisions, and everyday decision-making can become more challenging".
[26] There is no arguable basis for concluding that the Deputy President did not have regard to the entire PeopleSense Report. To the contrary, the Decision contains a comprehensive analysis of Mr Graham's reason for delay and in doing so, refers to the PeopleSense Report multiple times. The specific contention that the Deputy President did not consider the underlined matters does not appear to be sustainable. At [38] of the Decision, the Deputy President refers specifically to this section of the Report and records that "The PeopleSense Report only states that the Applicant's stress may have impacted his ability to file an application 'within 21 days of resigning.'"
[27] We further note that this section of the PeopleSense Report comprises of a general statement that "Stress has been found to impact one's ability..." The relevant question before the Deputy President was not whether stress in general may impact on one's brain capacity, but whether the evidence established that Mr Graham's brain capacity was impacted to the extent he was prevented or significantly impeded from filing an unfair dismissal claim within time. The Deputy President's conclusion, after considering all the evidence including the entire PeopleSense Report and Mr Graham's witness evidence, was that the evidence did not establish Mr Graham's medical condition contributed to the delay. This finding was reasonably open and no arguable appealable error is disclosed in relation to Particulars 1.1 to 1.3.
[28] To the extent that Mr Graham is contesting the weight the Deputy President attributed to different aspects of the PeopleSense Report, this is not an error in the decision-making process and therefore not an appealable error.
[29] Nor are we persuaded that the matters raised by Particulars 1.4 and 1.5 disclose an arguable case of appealable error. As to Particular 1.4, the Deputy President determined at [37] of the Decision that the evidence before her was "suggestive" that Mr Graham was able to "engage in activities other than attending to the filing of his application and that he was not so medically incapacitated that he could not work or pursue his activities of daily living." This conclusion appears to be supported by the evidence summarised at [35] of the Decision that Mr Graham had been performing work for his brother-in-law and "spending time on his boat, fishing, travelling, swimming and connecting with friends and family" during the delay period. Mr Graham's witness evidence also confirmed he had worked during this period.
[30] There is no arguable basis for concluding that the Deputy President misinterpreted the expert evidence in the manner contended by Particular 1.5. The PeopleSense Report, as quoted at [26] above, specifically focuses on Mr Graham's ability to file within 21 days. In any event, the Decision demonstrates that the Deputy President considered Mr Graham's capacity to file an application for an unfair dismissal remedy over the entire period of the delay, with close regard to matters covered in the PeopleSense Report.
[31] Nor are we persuaded that the matters that are the subject of Particulars 1.6 and 1.7 disclose any arguable appealable error. As to Particular 1.6, it was open to the Deputy President to find there was no satisfactory evidence of a medical condition that would impact Mr Graham's ability to file the application from 6 November 2023 onwards, noting that Mr Graham's most recent psychologist session was held on that date. With respect to Particular 1.7, we note the strict time limits that apply to the exercise of a person's right to bring an application under s 394 of the Act, and the fact that the application was already significantly out of time. We agree with the Deputy President's finding at [40] that the appropriate course of action would have been for the application to have been made "as soon as [Mr Graham] saw his representative for the first time and gave his instructions." We discern no arguable appealable error in relation to this finding.
[32] At the heart of ground two is Mr Graham's contention that the Deputy President erred by accepting the Respondent's submissions on prejudice, rejecting Mr Graham's submissions on prejudice, and then finding at [57] "I am satisfied that the factor of 'prejudice' in this matter weighs towards a finding of exceptional circumstances..."
[33] We are satisfied, having regard to the Decision as a whole, that the Deputy President's finding at [57] inadvertently omits the word "not" before the word "satisfied." It is apparent that the Deputy President was not satisfied that the issue of prejudice weighed in favour of a finding of exceptional circumstances having regard to [58] of the Decision where the Deputy President accepts the submissions of the Respondent, and the overall conclusion in [69] which records that all other matters besides reasons for delay are "neutral... or do not weigh toward a finding of exceptional circumstances."
[34] A clear typographical error is not the type of error of the kind contemplated by House v The King and falls well short of demonstrating a significant factual error as required by s 400(2) of the Act_._ Accordingly, Particulars 2.2 to 2.4 cannot be sustained.
[35] Mr Graham's contentions in Particulars 2.5 and 2.6, which are focussed upon the content of the Respondent's submissions, do not disclose any error in the Decision. In any event, it is well established that a lengthy delay gives rise to a general presumption of prejudice.[21] We discern no arguable case for granting permission in relation to these Particulars.
[36] We do not, with respect, agree with Mr Graham's argument that the Deputy President misapplied Kornicki. A finding that an applicant has an arguable substantive case, or that it is "not without merit" will not automatically weigh in favour of exceptional circumstances.
[37] An extension of time determination does not require a detailed analysis of the substantive merits. In the absence of hearing the evidence, it will not typically be possible for the Commission to make any firm or detailed assessment of the substantive merits beyond a finding that the applicant has an apparent case, to which the respondent has an apparent defence. As the Full Bench observed in Synder v Helena College Council, Inc t/as Helena College, upon considering Kornicki:[22]
"The consideration in s 394(3)(e) does not invite a binary assessment; rather, the merit of the substantive application will fall somewhere on a continuum from no merit to substantial or overwhelming merit.
In many instances the Commission will be unable to make any assessment of the merits of the substantive application as it is unable to make finding on contested matters without hearing evidence. In such circumstances the merits will be a neutral consideration."
[38] The Decision contains a considered analysis of the parties' respective submissions on merit at [62]-[64]. The Deputy President concluded at [65] that, noting the merits were not fully explored at the extension of time determination stage, "it was not the case that ... the application has no merit." Therefore, the merits were found to be a neutral factor; a conclusion with which we agree. It follows that the contention raised by Particulars 3.1 and 3.2 that the merits should have weighed in favour of a finding of exceptional circumstances because Mr Graham had demonstrated a "substantive case" cannot be sustained. No arguable appealable error is apparent.
[39] It is contended that the Deputy President erred in law when she found at [68] that the test of exceptional circumstances is a "stringent one." The Commission has variously described the exceptional circumstances test as challenging for applicants, including describing the test as a "stringent test"[23] or a "high hurdle."[24]
[40] The test applied by the Deputy President was correctly outlined at [19]-[21] of the Decision and applied accordingly. This ground does not give rise to any arguable case of appealable error.
[41] For the reasons given, we do not consider that an arguable case has been advanced that the Decision was attended by appealable error. Even if we had found that one of the grounds of appeal established an arguable appealable error, we are not persuaded that the public interest is enlivened.
[42] We acknowledge Mr Graham's personal struggle with mental health. However, Mr Graham's application for an extension of time was determined on the basis of its own facts, with particular regard to the specific medical evidence provided by Mr Graham. We are not satisfied that the appeal raises any issue of importance or general application to enliven the public interest. Nor do we agree with Mr Graham's submissions that the authorities relied on by the Deputy President in relation to stress and mental health - in particular Shaw v Australia and New Zealand Banking Group Ltd[25] and Underwood v Terra Firma Pty Ltd[26] are no longer helpful. These authorities continue to be relevant, noting as the Deputy President did, "the circumstances of each case must be considered in their own unique context."[27]
[43] We do not consider it to be arguable that the Decision manifests an injustice, or that the result is counterintuitive or unjust. Further, for reasons given above, we are not satisfied that the appeal has identified that the Deputy President applied legal principles in a way that was disharmonious when compared to other cases concerning s 394(3) of the Act.
[44] As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the Act.
Mr P Mullally of Workclaims Australia for the appellant.
Ms O Klimczak of Herbert Smith Freehills for the respondent.
[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB975 at [13]
[3] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[4] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; 203 CLR 194; 99 IR 309 at [21]
[5] House v The King as quoted in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; 203 CLR 194; 99 IR 309 at [21]
[6] Coal & Allied Mining Services Pty Ltd v Lawler and Others [2011] FCAFC 54; (2011) 192 FCR 78 at [43]
[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; 85 ALJR 398 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] [2010] FWAFB 5343 at [24]- [27]
[9] Notice of Appeal 2.1 at Particulars 1.1-1.3 and at paragraph 35-36 of the Appellant's submissions
[10] Notice of Appeal 2.1 at Particulars 1.1-1.3
[11] Notice of Appeal 2.1 at Particular 1.4
[12] Notice of Appeal 2.1 at Particular 1.5
[13] Notice of Appeal 2.1 at Particular 1.6
[14] Notice of Appeal 2.1 at Particular 1.7
[15] Notice of Appeal 2.1 at Particulars 2.2-2.4
[16] Notice of Appeal 2.1 at Particulars 2.5-2.6
[18] Notice of Appeal 2.1 at Particulars 3.1 and 3.2
[19] Outline of Appellant's Submissions at [31]
[20] Outline of Appellant's Submissions at [38]
[21] GHD Pty Ltd v Black [2023] FWCFB 38 at [51]
[22] Snyder v Helena College Council, Inc. t/as Helena College [2019] FWCFB 815 at [38]- [39]
[23] Benjamin Close v Woolworths Limited t/a Woolworths Wodonga [2016] FWCFB 7189 at [21]
[24] Bilkis v Commonwealth of Australia, represented by Services Australia [2020] FWCFB 4859 at [6]
[27] Decision at [32], which refers to Underwood v Terra Firma Pty Ltd [2015] FWCFB 3435 at [15]
Printed by authority of the Commonwealth Government Printer
Andrew Graham
Granny Smith Gold Mining Company Pty Ltd T/A Gsm Mining Company Pty Ltd [2024] FWCFB 272
(2011) 192 FCR 78
(2015) 246 IR 362
(1997) 140 IR 1