Fair Work Act 2009

s.604 - Appeal of decision

Flight Attendants Association of Australia National Division

Permission to appeal sought against decision ( [2018] FWC 2876) of Senior Deputy President Hamberger at Sydney on 6 June 2018 in matter number U2017/13784.

[1] Ms Carolyn Summers (Appellant) has lodged an appeal, for which permission to appeal is required, against a decision of Senior Deputy President Hamberger issued on 6 June 2018 (Decision).[1] In the Decision, the Senior Deputy President found that the Appellant's dismissal was consistent with the Small Business Fair Dismissal Code and dismissed the application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (FW Act).[2]

[2] On 8 August 2018, we heard the parties on the question of extension of time and permission to appeal. Ms C Summers, Appellant, appeared on her own behalf and Mr M Gibian, of Counsel, sought and was granted permission to appear for the Respondent. Given that the appeal seeks to contest the correctness of legal conclusions and factual findings made at first instance, as well as dispute the interpretation of union rules and application of the Small Business Fair Dismissal Code, we considered that permission for legal representation should be granted to the Flight Attendants Association of Australia National Division (Respondent), because it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.[3] We would also note that the Appellant chose to be represented at first instance and made a choice not to be represented for the appeal.

[3] The Appellant commenced employment with the Respondent on 7 June 2004 and held various positions including that of National Industrial Officer. The Appellant resigned in 2011 however on 4 July 2016 the Appellant recommenced employment with the Respondent as Manager, Member Support and Union Development until her dismissal on 7 December 2014.

[4] In the second half of 2017 a dispute arose between the Respondent's National Division Executive and Andrew Staniforth, then Secretary of the Division which resulted in Mr Staniforth being absent from work while an investigation into his conduct occurred.

[5] On 30 August 2017 Mr Scanlon, then the Respondent's National Division President met with staff to advise Mr Staniforth would not be attending the office, and on 31 August 2017 sent an email to all staff. The email included a direction that staff were not to be involved in any discussions around the Secretary's position while he had stood himself aside from the office, that elected officials would not tolerate this being discussed with other elected officials or staff, and any breach may result in disciplinary procedures.

[6] On 7 September 2017 Mr Uren, the Assistant Secretary sent an email to all staff advising he had been required by the Executive to act as Secretary until 27 September 2017, and as such, and to avoid any confusion, should staff receive any request or direction from Andrew Staniforth, they were required to refer him to Mr Uren. The email went on to state that should the direction not be clear, to not hesitate to contact Mr Uren directly.

[7] On 21 September 2017 the Appellant went to Melbourne to meet with Mr Staniforth and Mr Worthy. Mr Worthy was acting as Mr Staniforth's advocate and representative at the time.

[8] Mr Staniforth commenced proceedings in the Federal Court in relation to his dispute with the Respondent and in resolution of those proceedings, the parties agreed that the allegations would be investigated by an independent investigator.

[9] The Appellant assisted Mr Worthy prepare an email that was sent to the Registered Organisations Commission (ROC) on 25 September 2017. The email contained allegations about the way Mr Staniforth had been treated by the Respondents officials.

[10] Mr Worthy and the Appellant communicated using their private email addresses during this time.

[11] The independent investigators report on 2 November 2017 found Mr Staniforth had acted in gross neglect of duty and he was given notice to show cause why he should not be removed from office.

[12] On 21 November 2017 the Appellant sent an email from her personal email address to Mr Staniforth's official FAAA Secretary email address. Mr Uren, as acting Secretary, had access to this email address. The email was also sent to Mr Worthy's private email address. Mr Worthy was acting as Mr Staniforth's advocate and representative during this period. The email was in the form of a draft letter from Mr Worthy, and was addressed to two officials of the ROC. It contained allegations of breaches of the Fair Work Registered Organisations Act 2009 (the RO Act) and contravention of the Respondents Rules.

[13] On 27 November 2017 Mr Uren sent the Appellant an email directing her to provide copies of any emails she had sent to, carbon copied or blind copied to Mr Staniforth on and from 7 September 2017.

[14] On 28 November 2017 Mr Uren sent the Appellant a further email about the 21 November 2017 email, requiring the Appellant to explain her involvement in the email and how it was not a contravention of his email to all staff on 7 September 2017.

[15] The Appellant responded on 28 November 2017 and provided an explanation of her reasons.

[16] On 30 November 2017 Mr Uren replied to the Appellant advising that she had failed to properly address his questions or explain her conduct and directed her to attend a meeting with himself and Mr Scanlon on 7 December 2017.

[17] Following the meeting on 7 December 2017 the Appellant was terminated with immediate effect for serious and wilful misconduct.

[18] On 23 December 2017 Ms Summers applied for an unfair dismissal remedy in relation to the termination of her employment by the Respondent.

[19] Rule 56(2) of the Fair Work Commission Rules 2013 provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision that is the subject of the appeal or within such further time allowed by the Commission on application by the Appellant. The Appellant's notice of appeal was lodged on 28 June 2018, one day after the expiry of the prescribed 21 day time period. Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged. Time limits of the kind in Rule 56 should not be extended as a matter of course. Time should only be extended where there are good reasons for doing so.

[20] Authorities[4] indicate matters relevant to exercise of the Commission's discretion under Rule 56(2)(c) include whether there is a satisfactory reason for the delay; the length of the delay; the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time were extended; and any prejudice to the Respondent if time were extended.

[21] The Appellant said from 7 June 2017, the day after the Decision was handed down, she sought cost estimates for legal representation and all quotes received by 19 June 2017 were unaffordable. The Appellant said she was involved in a matter before the New South Wales Administrative Appeals Tribunal (AAT) on 21 June 2017 as a co-Respondent. The Appellant said she began preparation for the appeal application on 22 June 2018 when she uncharacteristically miscalculated the 21 day time period when counting the days on the calendar and misread part 5 of the Form 7, not realising the application was lodged outside the time period by one day. The Appellant submitted that she experienced moderate to severe stress, nightmares and sleep deprivation while re-reading the decision in depth as well as the transcripts of evidence about the events of 2017 and this stress caused her to erroneously calculate the day of the week that the 21 days ended by counting the 21 days from a day later, and believed she had filed within the time limit. The Appellant also provided a letter addressed to the Commission from Heidi Tschannen whose correspondence indicates Ms Tschammen holds an Advanced Diploma in Ayurveda, Pranic Healing and Psychotherapy. Ms Tschammen said in her correspondence that her observations of the Appellant over several months were consistent with the Appellant experiencing moderate to severe stress.

[22] The Appellant submitted she had a satisfactory reason for the delay and submitted that she relied on a similar combination of circumstances to the Full Bench decision in Tokoda v Westpac Banking Corporation[5] on the following grounds:

• (1) The delay was very short, being one (1) day;

• (2) The Appellant was required to prepare for and attend a hearing in another tribunal and prepare material for her workers' compensation review examination during the 21 day notice period;

• (3) The delay was genuinely caused by the Appellant's lack of legal expertise, limited resources and an impaired state of stress associated with the events leading up to and since her dismissal;

• (4) There is no prejudice to the Respondent whose Divisional Council was informed of the likelihood of an appeal at its annual general meeting held on 21-22 June 2018 by one of its National Councillors who was in phone attendance with the Appellant when the Decision was received by email and an appeal foreshadowed;

• (5) Further, there is no prejudice to the Respondent which, in its own right, is an industrial association registered with the Fair Work Commission, represented by solicitors and a barrister compared to the Appellant who is self-represented; and

• (6) There is a likelihood that one or more of the grounds of appeal may be upheld if time is extended.

[23] The Respondent opposed an extension of time on the following grounds;

• (1) The only reason proffered in the Appellant's submissions is an alleged miscalculation of the time limit in circumstances in which the Appellant and had legal representation at first instance and consulted lawyers in relation to an appeal within the time limit.

• (2) There is no evidence to support the assertion that the capacity of the Appellant to bring the appeal was impeded at all by a hearing on 21 June 2018 in an unrelated matter or any alleged "state of stress" claimed to have been experienced by the Appellant.

• (3) The Respondent is a small organisation and being required to respond to an appeal places considerable strain on the organisation's resources.

[24] We do not consider that the reasons put forward by the Appellant for the delay in lodging her appeal are compelling. The Appellant was fully aware of the 21 day time limit but had misunderstood, miscalculated, and misread the 21 day time limit stated in the Notice of Appeal (F7). As distinct from a situation where an Appellant was not at all aware, the Appellant's conduct in this regard is a relevant factor which weighs against a finding that exceptional circumstances exist in this case. Moreover, we do not consider that seeking a cost estimate of legal fees, attending to and preparing for an unrelated proceeding in the AAT, and stress from reading the Decision and associated materials from the matter below support a finding that the circumstances of this case, when viewed together, can reasonably be seen as exceptional. Accordingly, the reasons for delay weigh against an extension of time being granted.

[25] The length of delay was very short at one day. This factor weighs in favour of granting an extension of time within which to institute the appeal.

[26] The Respondent was made aware of the likelihood of an appeal and given the delay was a period of one day this weighs in favour of granting an extension of time.

The nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended

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

[28] Section 400 of the FW Act applies to this appeal. It 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.

[29] 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 FW Act as "a stringent one".[7] The task of assessing whether the public interest is met is a discretionary one involving a broad value judgement.[8] In GlaxoSmithKline Australia Pty Ltd v Makin[9] 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".[10]

[30] The Appellant 's grounds of appeal were as follows:

• (a) The Decision was biased towards the Respondent on the basis that the Senior Deputy President condoned the Respondent filing a second, significantly changed outline of submissions after the Appellant had filed her material in reply, thereby prejudicing the Appellant.

• (b) The Decision contained significant errors of fact including;

  1. Regarding the finding that the Respondent was a small business employer the Senior Deputy President acted on a wrong principle, was guided by irrelevant factors, mistaken the facts and/or failed to taken into account some material consideration.

  2. Regarding the conduct of the Appellant, the Senior Deputy President formed a conclusion about the Appellant's conduct upon a wrong principle, been guided by irrelevant factors, mistaken the facts and/or failed to take some material consideration.

[31] It is apparent from the nature of the grounds of appeal that the Appellant seeks to persuade us that the Senior Deputy President should have considered and dealt with the evidence that was before him in a different way, and that he should have reached a different conclusion on the facts. It is noteworthy to mention that an appeal is not the place to re-agitate the matters have been considered at first instance. It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[11] The fact that a Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[12]

[32] Having considered the Appellant's submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. It is clear that the basis on which the Senior Deputy President reached his Decision discloses an orthodox approach to the determination of the Appellant's unfair dismissal application. The Senior Deputy President applied the correct legal principles, considered and dealt with the evidence that were before him, and made findings of fact based on the evidence before him. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purpose of s.400(1) 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 Senior Deputy President were disharmonious when compared with other decisions dealing with similar matters.

[33] Our finding weighs heavily against the grant of an extension of time.

[34] In our view there is no public interest in the present matter such as to support a grant of permission to appeal and we are not persuaded that an arguable case has been made out that the Senior Deputy President made any significant errors of fact. Having regard to all of the relevant considerations we are not persuaded that it is in the interests of justice to extend time to file the appeal. Accordingly, we dismiss the Appellant's application to extend time to file the appeal.

[1] [2018] FWC 2876.

[4] Jobs Australia v Eland [2014] FWCFB 4822 at [5]- [6]; Farnhill v Australian Business Academy Pty Ltd [2016] FWCFB 3410 at [2]- [5]; Logan City Electrical Services Division Pty Ltd v Antonarakis [2018] FWCFB 3815 at [2]- [4].

[5] Tokoda v Westpac Banking Corporation [2012] FWAFB 3995.

[6] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[7] Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 78, 207 IR 177 at [43].

[8] O'Sullivan v Farrer [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) 192 78, 207 IR 177 at [44] - [46]

[9] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.

[10] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27].

[11] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[12] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2001) 197 IR 266 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; (2014) 241 IR 177 at [28].

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