Fair Work Act 2009

s.604 - Appeal of decisions

The Trustee for The Trimatic Management Services Unit Trust

Appeal from decision [2024] FWC 1901 of Commissioner Perica at Melbourne on 19 July 2024 in matter number U2024/6834

[1] Cheryl D'Rozario has lodged an appeal, for which permission is required, against a decision of Commissioner Perica to dismiss her unfair dismissal application ( [2024] FWC 1901, U2024/6834). The application was lodged seventeen days outside of the 21-day period prescribed by 394(2) of the Fair Work Act 2009 (Act). Section 394(3) allows the Commission to allow a further period within which to make an application, but only if it is satisfied that there are exceptional circumstances, having regard to the matters in ss 394(3)(a) to (f).

[2] In his decision, the Commissioner stated that there were good reasons for part of the delay (s 394(3)(a)), but that ultimately the reasons for the delay did not weigh in favour of granting an extension (at [36]). He determined that Ms D'Rozario had taken action to dispute her dismissal (s 394(3)(c)), and that this factor counted in favour of an extension of time (at [36]). He considered that none of the other mandatory considerations in s 394(3) favoured the granting of an extension. The Commissioner stated that on balance he was not satisfied that there were exceptional circumstances to justify an extension of time (at [39]).

[3] An appeal cannot succeed in the absence of appealable error (see Wan v AIRC [2001] FCA 1803; 116 FCR 481 at [30]). In her notice of appeal, Ms D'Rozario does not identify or allege any error on the part of the Commissioner. Rather, she seeks a 'reconsideration' of her case. This is not a proper use of the appellate function of the Commission. Appeals exist for the correction of error, not to afford an unsuccessful party a second opportunity to run their case. As Ms D'Rozario is unrepresented, we have gone beyond the notice of appeal to consider for ourselves whether there is any arguable error in the Commissioner's decision. We find that there is not. The Commissioner dealt with the matter before him in the manner required by the Act. He considered and weighed the mandatory considerations. He reached a reasoned conclusion. There is no indication of any legal, factual or discretionary error.

[4] During the appeal hearing Ms D'Rozario suggested that the matter had been "rushed". There is no merit in this contention. Directions and a notice of listing were issued by the Commissioner three weeks prior to the extension of time hearing. Ms D'Rozario filed materials twelve days later. She was served the respondent's response and written submissions. Upon hearing the matter, a decision was reserved and delivered eight days later. We are well satisfied that these processes were orthodox, efficient and fair.

[5] Moreover, this is an appeal to which s 400(1) applies. This provision directs that the Commission must not grant permission to appeal from a decision made under Part 3-2 of the Act (that is, a decision concerning an unfair dismissal application), unless it considers that it is in the public interest to do so. We do not consider that it would be in the public interest to grant permission. There is nothing about this appeal that engages the public interest.

[6] Permission to appeal is refused.

C. D'Rozario for herself, assisted by K. D'Rozario

F. Carao for the trustee for the Trimatic Management Services Unit Trust with D. Rayson

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