[2020] FWCFB 4859

The attached document replaces the document previously issued with the above code on 15 September 2020.

The medium neutral citation referenced in the catchwords has been corrected to [2020] FWC 3537.

[2020] FWCFB 4859

Fair Work Act 2009

s.604 - Appeal of decisions

Commonwealth of Australia, represented by Services Australia

Appeal against decision [2020] FWC 3537 of Deputy President Kovacic at Canberra on 7 July 2020 in matter number U2019/13921. Section 394 application, extension of time refused to file application. Permission to appeal not granted.

[1] This decision deals with an appeal, for which permission to appeal is required, made by Bazlun Bilkis (the Appellant) under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a Decision[1] and Order[2] of the late Deputy President Kovacic issued on 7 July 2020. The Deputy President declined (under s 394(2) of the Act) to extend time to the Appellant to file an unfair dismissal application (Application) made under s 394 of the Act.

[2] The Appellant filed her Application on 11 December 2019. In the Appellant's Application, she alleged that she was unfairly dismissed from her employment on 29 October 2019 (by removal from the list in the casual employment register). Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days after the dismissal took effect, or within a further period for the application to be made if the Commission is satisfied that exceptional circumstances exist.

[3] The Deputy President noted that the Application was lodged 22 days out of time, pursuant to the statutory time limit stipulated in s 394(2) of the Act. In his Decision, the Deputy President found that, having regard to s 394(3) of the Act, there were no exceptional circumstances warranting the granting of a further period for the Appellant to make her Application.[3] Accordingly, the Deputy President made an Order to dismiss the Appellant's Application.

[4] This matter was subject to a telephone hearing on 3 September 2020. The respondent in this matter is the Commonwealth of Australia represented by Services Australia (the Respondent). The Full Bench heard the parties on permission to appeal only.

Legislative provisions and permission to appeal principles

[5] Section 394(3) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

"(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."

[6] The test of "exceptional circumstances" establishes a "high hurdle" for an application for an extension.[4] A decision as to whether to extend time under s 394(2) involves the exercise of discretion.[5]

[7] The meaning of "exceptional circumstances" in s 366(2) of the Act concerning late lodgment of general protections applications (being provisions which are in relevantly identical terms to the provisions of s 394(3) concerning late lodgment of unfair dismissal applications) was considered by a Full Bench of the then-named Fair Work Australia in Nulty v Blue Star Group Pty Ltd[6] (Nulty) as follows:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance."

[8] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are exercisable only if there is error on the part of the primary decision maker.[7] There is no right to appeal and an appeal may be made only with the permission of the Commission.

[9] This appeal is one to which s 400 of the Act applies. Section 400 provides:

(1) Despite subsection 604(2), FWC must not grant permission to appeal from a decision made by FWC under this Part unless 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."

[10] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 of the Act as "a stringent one".[8] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[9] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[10] In GlaxoSmithKline Australia Pty Ltd v Makin[11] a Full Bench of the Commission identified some of the considerations that may attract the public interest:

"... 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."[12]

[11] 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.[13] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[12] In the Decision, the Deputy President considered each of the matters he was required to take into account under s 394(3) of the Act.

[13] The primary reasons identified in the Decision for the Appellant's late lodgement of the unfair dismissal application were, first, what the Appellant asserted was a lack of awareness of the timeframe for making an unfair dismissal application; and, second (and compendiously-described), mental health and/or stress-related considerations consequent upon the dismissal. In relation to s 394(3)(a) of the Act concerning the reason for the delay, the Deputy President reviewed the material and evidence before him and considered the two primary reasons.

[14] As to the Appellant's (alleged) lack of awareness of/ignorance of the statutory timeframe for making an application, the Decision referred to, among other authorities, Nulty. The consideration in the Decision of the mental health and stress-related matters read:

"[22] As to Ms Bilkis' submission that she was upset and distressed after having her name removed from the Respondent's casual employment register, as stated by Deputy President Gostencnik in Casey:

"[16] ... Indeed, stress and shock resulting from a dismissal is not an uncommon experience of persons who have been dismissed and does not generally provide a basis, without more, for an acceptable explanation for the delay."

[23] While I note [the Appellant's husband's] evidence regarding Ms Bilkis' reaction to her name being removed from the Respondent's casual employment register, Ms Bilkis provided no medical evidence to support her contention that but for her mental condition she would have would have made her application within time "at any cost". Indeed, Ms Bilkis' efforts to dispute her dismissal, e.g. writing to the Commonwealth Ombudsman and the Commission ..., do not point to her being incapacitated by her mental condition to such an extent that she was precluded from filing her unfair dismissal application within time." (References omitted)

[15] On a consideration of the twin matters of ignorance of the statutory timeframe and the mental health-related issues, the Deputy President concluded that the reasons for the delay relied upon by the Appellant did not point to the existence of exceptional circumstances.

[16] The Deputy President then took into account s 394(3)(b) concerning whether the Appellant first became aware of the dismissal after it had taken effect. The Deputy President noted it was not disputed that the Appellant was aware as of 29 October 2019 that her name had been removed from the Respondent's casual employment register and, as such, this consideration did not point to the existence of exceptional circumstances.

[17] In respect of the other matters specified in s 394(3)(c)-(f) of the Act, the Deputy President dealt with them as follows:

• the Appellant contacted several persons/agencies within the 21-day statutory timeframe following her dismissal. The Deputy President was satisfied that the Appellant took steps to dispute her dismissal prior to lodging her Application, and accordingly considered this factor to be a neutral consideration (s 394(3)(c))[14];

• the Deputy President noted the Appellant's submission that there was no prejudice to the Respondent as a result of the late filing of her Application, and that the Respondent conceded the late filing had not caused it any substantial prejudice. The Deputy President considered the issue of prejudice to be a neutral consideration (s 394(3)(d))[15];

• having regard to the fact that the Appellant was aware of her reporting obligations regarding certain social security-type payments (resulting, due to non-reporting and/or under-reporting by the Appellant, in an overpayment to the Appellant of more than $20,000) and considering the steps taken by the Respondent before terminating the Appellant's employment from a procedural fairness perspective, the Deputy President considered that the merits of the Appellant's Application did not appear strong. Accordingly, the Deputy President considered this factor as weighing against an extension of time being granted (s 394(3)(e))[16]; and

• the Deputy President considered that the Appellant's submission made in relation to duty of care was not relevant to the issue of fairness as between the Appellant and other people in a similar situation and considered this factor to be a neutral consideration (s 394(3)(f))[17].

[18] Following a sympathetically-written overview of certain matters concerning the Appellant's personal circumstances, the Deputy President ultimately concluded:

"[44] ... Nevertheless, as can be seen from the above consideration of the factors set out in s.394(3) of the Act, none of those factors point to the existence of exceptional circumstances in this case, though two of those factors are neutral considerations. Further, those factors, when considered together, do not point to the existence of exceptional circumstances.

[45] As such, having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I find that there are no exceptional circumstances warranting the granting of further period for Ms Bilkis to make her unfair dismissal application. Accordingly, Ms Bilkis' application cannot proceed and will be dismissed. An order to that effect will be issued with this decision."[18]

[19] We have considered all the matters raised by the Appellant but, having regard to privacy implications, we do not refer to some of those matters in any detail. In broad summary, we understand the Appellant's appeal grounds to be as follows:

• the Deputy President failed to consider the Appellant's mental health condition which constituted an exceptional and severe situation. The Appellant's health impacted upon her ability to lodge her Application, albeit, for reasons outlined in the appeal papers, she did not adduce medical evidence in such respects in the proceedings at first instance;

• the Appellant seeks that her name be removed from the Administrative Functions Disposal Authority register so she can apply in the future for jobs in the Australian Public Service (with such removal being a matter which is, we note, beyond the jurisdictional remit of the Commission). This will, among other matters, give the Appellant peace of mind; and

• the Appellant was self-represented and was unaware of the legal considerations relevant to this appeal, but seeks a reconsideration for the Application to be accepted out-of-time due to what the Appellant described as a severe, exceptional medical condition.

[20] We have carefully considered the Appellant's Form F7 - Notice of Appeal and her written submissions filed on 27 August 2020 in support of her appeal. Many aspects of the Appellant's written submissions were written in (highly) emotive terms and, otherwise, are not relevant to the matters we need to consider in deciding whether to grant permission to appeal. However, we broadly distil the Appellant's submissions as follows:

• the dismissal of an employee should be conducted with respect and maintain the dignity of the employee and that an employer should have a duty of care to their employees; and

• the Respondent did not give the Appellant proper notice and a second chance to submit her case.

[21] The Appellant attached to her permission to appeal submissions a letter from a general medical practitioner, dated 20 July 2020; and seeks to rely on it in these proceedings before the Full Bench. It is apposite to note the doctor's letter advised the Appellant first presented at the relevant medical practice on 5 February 2020. The letter outlined certain other matters, including text concerning a background history of a medical condition (which first presumptively pre-dated the Appellant's presentation at that medical practice and so was only reported to that particular doctor rather than comprising part of his own medical records concerning the Appellant) and matters including more recent referral and/or treatment. We particularly note that the Appellant's first attendance at the medical practice was on 5 February 2020. At the time the Application was before the Deputy President, there was no medical evidence that the Appellant had a medical condition that would have or may have impaired her capacity to lodge her unfair dismissal application within time. The letter from a doctor whom the Appellant first consulted in February 2020, and upon which she now seeks to rely, indicates she had a history of a medical condition. Even if the letter from the doctor were to be accepted now before the Full Bench, it would not, it seems to us, advance medical-related matters as the Appellant's dismissal occurred on 29 October 2019 and she did not first consult the doctor until February 2020.

[22] In response, the Respondent advanced the following submissions:

• whilst acknowledging the distress that may have resulted from the dismissal, the Respondent submits that the Appellant's assertion that the dismissal of an employee should be effected with respect and dignity is not one that satisfies the public interest test;

• the Appellant was given an opportunity to respond to allegations of misconduct and provide reasons as to why she should not have been removed from the Respondent's casual employment register, having regard to what transpired on 2 September 2019 and 24 October 2019; and

• in relation to the Appellant's post-dismissal mental state and the impact this may have had on the Appellant's ability to file her Application within time, there was no medical evidence made available to the Deputy President about the extent of any mental health condition on the Appellant's capacity. Furthermore, the Appellant's fitness to travel to Saudi Arabia and then Bangladesh is not indicative of significant incapacity.

[23] For the reasons above, the Respondent submits that there is no basis for the Commission to be satisfied it is in the public for permission to be granted and, therefore, that permission must be refused.

[24] First, in respect of the Appellant's broad proposition regarding the manner in which dismissals should be conducted, this submission does not purport to identify any error in the Deputy President's approach. At best, the submission is one that addresses the merits of the appeal and therefore is rejected on the basis that we are tasked only with resolving the question of permission to appeal. In any event, the Deputy President at [22]-[23] and [44] in the Decision had particular regard to the distress experienced by the Appellant following her dismissal, and noted that, on the evidence before him, this did not point to the existence of exceptional circumstances. We are satisfied that it was reasonably open for the Deputy President to arrive at this conclusion.

[25] Second, we are not persuaded that the public interest is enlivened based on the Appellant's submission that the Respondent failed to provide proper notice and give the Appellant a second chance to submit her case. This submission is also one that seeks to address the merits of the matter before us. In any event, we would note that the Deputy President considered the procedural steps taken by the Respondent before removing the Appellant's name from the casual employment register at [38]-[39], including the Appellant being interviewed by the Respondent on 2 September 2019 as part of the Respondent's internal investigation and on 24 October 2019, being invited to comment on the proposal to remove the Appellant's name from that register. It was reasonably open for the Deputy President to conclude that, "[a]gainst this background, the merits of [the Appellant's] application do not appear strong"[19].

[26] Finally, to the extent that the Appellant contends that the public interest is enlivened by the Deputy President's failure to take into account relevant considerations or that he made a significant error of fact, we do not accept this proposition. The Deputy President had regard to all of the relevant evidence before him in considering whether exceptional circumstances existed, including the Appellant's medical condition[20] and the fact that, on the basis of that material, her actions did not point towards her having been incapacitated by her medical condition.[21]

[27] Having considered the matters raised by the Appellant with respect to permission to appeal, we are not persuaded that the public interest is enlivened. More specifically, we are not satisfied that:

• there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

• the appeal raises issues of importance and/or general application;

• the decision at first instance manifests an injustice, or the result is counter intuitive; or

• the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.

[28] For the reasons set out above, we are not satisfied that the Appellant has established that there is an arguable case of error in relation to any aspect of the Decision or that the conclusion reached by the Deputy President was attended with sufficient doubt to warrant its reconsideration.

[29] Accordingly, permission to appeal is refused.

Appellant's written submissions dated 27 August 2020.

Respondent's written submissions dated 1 September 2020.

[1] Bazlun Bilkis v Commonwealth of Australia represented by Services Australia (formerly Department of Human Services) [2020] FWC 3537 (the Decision).

[2] PR720771.

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

[5] Halls v McCardle and Ors [2014] FCCA 316.

[6] [2011] FWAFB 975.

[7] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[8] [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 177 at [43].

[9] O'Sullivan v Farrer and another [1989] HCA 61; (1989) 168 CLR 210 at [216]- [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 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; (2011) 192 FCR 78; (2011) 207 IR 177 at [44]- [46].

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

[11] [2010] FWAFB 5343.

[13] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[20] Decision [17], [18] and [23].

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