Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [[2022]FWC494 of Deputy President Beaumont at Perth on 08 March 2022 in matter number U2022/409 - permission to appeal refused.

[1] Daniel Hunter (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Deputy President Beaumont (Deputy President) issued on 11 March 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy again Karara Mining Ltd (the Respondent), pursuant to s.394 of the Act.

[2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s.394(2). It was not in dispute that the dismissal took effect on 15 December 2022, accordingly, the period of 21 days ended at midnight on 5 January 2022. The application before the Deputy President was made on 6 January 2022 and therefore filed 1 day outside the 21-day period.

[3] Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made by a person under s.394(1) if the Commission 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;

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

(d) prejudice to the employer (including prejudice caused by the delay);

(f) fairness as between the person and other persons in a similar position.

[4] The Deputy President was not satisfied that there were exceptional circumstances and declined the Appellant's request, issuing the Decision and an Order dismissing his application. The Appellant seeks to appeal the Decision.

[5] The Appellant lodged his Notice of Appeal on 28 March 2022. The primary contention within the Notice was that the Appellant had been treated unfairly in the initial decision because the Deputy President's chief consideration was the jurisdictional question of whether an extension of time should be granted, rather that the merits of his unfair dismissal claim.

[6] The Notice of Appeal also went into some detail of the merits of the Appellant's unfair dismissal claim, stating that the Respondent's requirement that he be vaccinated or dismissed, without a risk analysis of the vaccine he found satisfactory, amounted to bribery, coercion, and intimidation into economic duress.

[7] Following the lodgement of the Appellant's Notice of Appeal, the matter was listed for permission to appeal only with directions set for filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and did not file any materials relating to the principles or merits of appeal.

[8] In response to directions, a written submission was filed by the Appellant on 3 May 2022 outlining the grounds on which appeal was sought. These submissions confirmed the Appellant's objection to the initial ruling as being that it concerned the jurisdictional question of extension of time rather than a consideration of the merits of his unfair dismissal claim. The submissions also further outlined the Appellant's objections to the Respondent's requirement about vaccination arguing he was faced with;

"...discrimination, intimidation, bribery lack of facts to justify the risk vs. benefit of what they were coercing me into (NEVER PRESENTED WITH A RISK ANALYSIS), and the economic duress the company has now placed me in." (emphasis in original)

[9] Regarding whether the appeal could be properly considered in the public interest, the Appellant then provided a survey of a wide range of legal and quasi-legal documents and principles which reference medical procedures, including the Australian Constitution, the "Nuremberg Code", the Biosecurity Act 2015 (Cth), the UNESCO Statement on Bioethics and Human Rights, the "Siracusa Principles", and information published by the Therapeutic Goods Administration. The Appellant also noted a statement by the Prime Minister to the media in July 2021 that "we don't have mandatory vaccinations" in Australia.

[10] The connection between the materials cited and the public interest of the appeal was not drawn out with any particular clarity in the submissions. However, the overall intention of the Appellant appeared to be to convey that issues associated with vaccine directions by employers meant that a consideration of the merits of his dismissal would be a matter of public interest.

[11] The Appellant was dismissed from his employment with the Respondent on 15 December 2021. His initial unfair dismissal application was lodged on 6 January 2022, one day out of time. A matter requiring determination by the Deputy President was the date the Appellant was notified of his dismissal with her finding he had a reasonable opportunity to find out he had been dismissed on 15 December 2021.[2] The Appellant was unable to recall when precisely he became aware of this dismissal, asserting he had checked the email account that had previously been blocked and found that his dismissal letter had been sent to that account. The Appellant's submissions included that his delay in filing was due to a failure by the Respondent to take action to ensure he received timely notification of his dismissal.

[12] Following a significant number of communications to employees regarding the requirement to be vaccinated to remain employed with the Respondent, the Appellant failed to provide the Respondent with proof of vaccination or a medical exemption within the requisite time frame. The steps then taken by the Respondent to notify the Appellant of his dismissal were a telephone call to the Appellant on 15 December 2021, which the Appellant did not pick up, and an email to the email address the Appellant had previously provided to the Respondent.

[13] As a consequence, the Deputy President found that the Respondent gave the Appellant sufficient notice of dismissal on the date of termination. Accordingly, and with regard to the other factors which are necessary to consider in determining an extension of time, the Deputy President found that she was unpersuaded the Appellant's circumstances were exceptional, notwithstanding that the delay was one day.

The Appellant's Communications with the Commission Regarding the Present Matter

[14] The Commission received numerous communications from the Appellant about his matter and responded as necessary. These communications are summarised as follows:

• 13 April 2022 - following the Appellant's lodgement of his Notice of Appeal;

  • The Appellant contacted the Commission's helpline to request advice on his Appeal. He was referred to the Commission's Workplace Advice Service and a referral link was sent to him via text.

  • The Appellant also left a message with the Chambers of Vice President Catanzariti, and a call back was made to him by the Vice President's Associate. The Appellant expressed confusion about the preparation of his submissions and the appeal book for his matter. The Associate to the Vice President advised she would prepare his appeal book, due to his unrepresented status, and again referred him to the Workplace Advice Service.

• 28 April 2022;

  • Email correspondence was sent to the Appellant from the Vice President's Chambers advising him that his submissions, which had been due on 21 April 2022, were seven days overdue and should accordingly be filed as soon as possible.

  • On the same day, the Appellant responded by email to the Vice President's Chambers stating he had "submitted enough evidence" and querying whether there was "any point in me going anything further with this?"

  • The Chambers of the Vice President responded to this correspondence on the same day stating that the Commission was unable to advise as to whether the appeal should be continued, and that based on his communications to the Commission the Vice President would assume he wished to discontinue the appeal. The correspondence further advised that should the Appellant not wish to discontinue he would need to inform the Vice President of this by 5PM on 5 May 2022.

  • On the same day at 9:26PM the Appellant responded to Chambers as follows, "Look, that's fine, I'll get around to it thank you. I am also taking legal proceedings through other avenues." This was understood to be a confirmation of the discontinuance of the appeal by the Appellant. Accordingly, on 29 April 2022 the listing for the appeal was cancelled and an email was sent to the parties to the matter confirming the discontinuance and attaching the notice of the cancellation.

  • Following this correspondence, the Appellant replied to Chambers advising as follows, "I stated that "I'll get around to it" that means I will pursue this case further! So that does not mean that you can cancel my appeal." The Appellant followed this correspondence with a telephone call to the Chambers of the Vice President stating that the assumption the matter had been discontinued was in error. The Associate to the Vice President advised that she had noted his wish to continue with the appeal and would send an email confirming this to the Appellant shortly.

• 2 May 2022 - the above exchange was sent from Chambers to the parties to the matter together with a notice of listing for the re-listed hearing and a direction that should the Appellant's submissions not be filed by 5:00PM on 3 May 2022 the appeal was likely to be dismissed.

• 3 May 2022 - the Appellant's submissions were received.

• 9 May 2022;

  • The Appellant called the Chambers of the Vice President and advised his Associate that he was trying to go down another legal avenue and wished to know whether he could pursue both this avenue and the appeal, otherwise he might discontinue the appeal. The Associate requested the Appellant put his query in writing and advice would be provided in reply to the extent it was appropriate for the Commission to do so.

  • Following this on the evening of 9 May 2022 the Appellant sent email correspondence to the Chambers of the Vice President stating that attached was "a copy of my discontinuance of my unfair dismissal claim" and that he would call early the following morning to explain further. Attached to the email was a Form F50 Notice of Discontinuance (the Notice). The Notice cited the matter number for the Appellant's initial matter before Deputy President Beaumont, U2022/409, rather than the matter number of the appeal currently in question.

• 10 May 2022;

  • At 8:59AM the Chambers of Vice President Catanzariti confirmed to the Appellant that correspondence discontinuing the appeal had been received in Chambers. The correspondence further advised the listing for that day at 11:00AM had been vacated and the file would be closed.

  • At 9:07AM the Appellant responded to the Chambers of the Vice President stating that the Notice had pertained to the "the underlying dismissal claim U2022/409 only. Not the appeal claim C022/2001."

  • At 9:53AM the Chambers of the Vice President responded to the Appellant stating that the Full Bench was confused by his correspondence and as a result proposed to deal with the matter at the original hearing time of 11:00AM that day, as well as advising that the matter had been relisted for that time.

  • At 10:04 AM, in response to the above the Appellant sent through correspondence to the Chambers of the Vice President stating that he had been advised to;

""Use the reference number for the unfair dismissal claim, not the Full Bench appeal. If you discontinue the appeal, then the dismissal of the claim will stand." therefore "If you discontinue the underlying unfair dismissal claim, then you may be able to argue that the dismissal did not take effect."

Therefore this will discontinue the previous unfair dismissal claim U2022/409 and will prevent the appeal from ever taking place."

• At 10.33 AM the Appellant called and spoke to the Associate to Vice President Catanzariti who advised the Appellant that the Vice President had seen his recent correspondence and the hearing would be proceeding at the original time that morning. The file note for this call then records that the Appellant advised the Vice President's Associate that "there is no point in going to hearing" and that he "doesn't see there is any point going".

[15] Following the Associate's request for this to be put in writing and her advice that the Appellant's concerns could be discussed with the Full Bench at the 11:00AM listing, the file note records that the Appellant advised that "he is not going, it is a waste of time and he is not going to waste time going to hearing." When the Associate asked for this to be put in writing, the file note then records that the Appellant stated "he doesn't know how he can be any clearer as he has already sent us emails. He repeated what he has told us in emails; that it should bar the hearing from ever going ahead." The Associate advised she would pass this information from the Appellant on to the Vice President.

[16] Following this conversation, at 10:43AM and 10:46AM the Appellant sent through email correspondence to the Chambers of the Vice President with a screenshot of the record of his preceding call to the Commission and the statement that the notification he had given the Commission in this call entailed that there was "no need to waste my time on an appeal."

[17] The Full Bench then reserved their decision.

[18] Following a query from the Appellant received on the Commission helpline regarding the status of his case at 6:02PM on 10 May 2022, the Chambers of the Vice President sent correspondence to the Appellant on the morning of 11 May 2022 advising that the Full Bench had received his correspondence and a decision would be issued in due course.

[19] At 11:44AM on 11 May 2022 the Appellant responded to the Chambers of the Vice President, "Decision for what exactly? I've discontinued and withdrawn from partaking in this system. It's been a complete and utter waste of my time, I'm very disappointed."

[20] 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.[3] There is no right to appeal, and an appeal may only be made with the permission of the Commission.

[21] The Decision subject to appeal was made under Part 3-2 - Unfair Dismissal of the FW Act. Section 400(1) of the FW Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a "significant error of fact."[4] Section 400(2) of the FW Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.

[22] 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.[5] The public interest is not satisfied simply by the identification of error,[6] or a preference for a different result.[7] In GlaxoSmithKline Australia Pty Ltd v Makin 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 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..."[8]

[23] 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.[9] However, an error at first instance is not necessarily a sufficient basis for the grant of permission to appeal.

[24] 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.[10] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

[25] Mr Hunter's Notice of Appeal set out three grounds for appeal as follows;

1. "my prior dismissal is only trialed based on the 21 day rule"

2. "the dismissal did not raise the fairness of my original terms of dismissal from the company"; and

3. "my dismissal was completely unfair and should be pursued further".

[26] The first of these grounds may be regarded as an argument that factors other than the criteria within s.394(3) should have been taken into account by the Deputy President in making her decision. The second and third grounds may be taken as an argument the Deputy President failed to consider the unfairness of the Appellant's dismissal.

[27] Mr Hunter says about the public interest in his Notice of Appeal that he was intimidated by the Respondent into economic duress, that it used acts of bribery and coercion against him and provided him with no alternative forms of employment. He also contends in relation to the public interest that the Respondent failed to provide him with a satisfactory risk analysis of the COVID-19 vaccination and that they failed to provide him with any form of compensation if he were to become unwell or died a result of the vaccination. He also set out that he had suffered psychological distress from being placed in the position in which he found himself.

[28] It is first appropriate to consider the status of the Notice of Discontinuance filed by Mr Hunter. Section 588 the Act provides that a person who has applied to the Commission may discontinue the application:

(a) in accordance with the procedural rules (if any); and

[29] There are no applicable procedural rules and Mr Hunter's matter had not been settled at the time he lodged his Notice of Discontinuance.

[30] The Notice of Discontinuance form, the Form F50, commences with the statement "This is a notice of discontinuance of an application with the Fair Work Commission in accordance with section 588 of the Fair Work Act 2009" and then seeks certain information to be provided, including the matter number, the names of the Applicant and Respondent as well as the signature of the Applicant or a person acting for them. It also seeks the person completing the form mark the applicable alternative from a choice of three;

[ ] Wholly discontinues this matter as part of a settlement agreement

[ ] Wholly discontinues this matter to pursue an alternate application"

[31] Mr Hunter did not make an election from these choices, however included the other details as well as signing the form. The matter number he used was U2022/409, being the matter number for his original - and late filed - unfair dismissal application.

[32] Whatever Mr Hunter's motives for doing so, he unambiguously discontinued his originating application. Once filed a Notice of Discontinuance is self-executing and it brings the application to an end.[11] It has been observed by another Full Bench, and we concur, that the setting aside of a Notice of Discontinuance such as for reason of mistake or duress such application would have to be made to a court.[12]

[33] Even so, the filing of a Notice of Discontinuance in relation to matter number U2022/409 is likely moot since the application had been in any event dismissed by the Deputy President at the same time as she issued her decision[13] and it is that decision and Order the Appellant now endeavours to appeal.

[34] We now give consideration to the Grounds of Appeal set out in the Appellant's Notice of Appeal.

[35] Consideration of the first ground of appeal that the Deputy President restricted her decision to matters within s.394(3) does not fall in favour of the Appellant.

[36] Plainly the Deputy President's obligation, pursuant to s.394(3) was to consider whether she was satisfied there were exceptional circumstances for an extension of time to Mr Hunter's application, taking into account the 6 criteria set out within the section.

[37] The Deputy President's decision plainly undertook the task as the Act required.

[38] In relation to the reasons for the delay in making Mr Hunter's application, pertinent to s.398(3)(a), the Deputy President characterised it as being an enquiry by her into whether there was an acceptable or reasonable explanation for the delay.[14]

[39] She identified, correctly in our view that the reason given for the delay did not appear to be the Appellant's ignorance about the time limit but rather his expressed a lack of knowledge about the date of his dismissal. She expressed sympathy to the Appellant's circumstances, given it was a delay of one day and appreciating the circumstances which led to it and then found that the Appellant had not provided a credible explanation for the delay, which weighed against a finding of exceptional circumstances.[15]

[40] Such analysis and finding on the part of the Deputy President is of course both unremarkable as well as consistent with the analysis that would be expected in proceedings of these type.

[41] In relation to the criterion within s.394(3)(b), the Deputy President considered at length whether she should make a finding that the Appellant found out about his dismissal after the date it took effect and for the reasons expressed within her decision chose not to except his evidence on the subject. In this regard the Deputy President took into account that the Appellant had earlier been on notice by his employer that his employment would be terminated if evidence of vaccination was not provided by the date required of him and that he would be called by the Respondent's Senior HR Business Partner if that was the case. The Senior HR Business Partner gave evidence that she endeavoured to call the Appellant without success on 15 December 2021 with the Deputy President relying upon that evidence. Further the Deputy President's findings, critical to the issue of when the Appellant learned he had been dismissed, include the following;

"[35] The Applicant was provided with a letter of termination sent to the contact details he had provided to his employer, the Respondent. In circumstances where those contact details were incorrect, it was the Applicant's responsibility to update his contact details. It was not the case that the Applicant was unaware that the continuation of his employment was at risk. The Respondent had engaged in a campaign of communicating the requirement regarding the COVID-19 vaccination over a two-month period. The Applicant had himself, evidently contemplated resigning on 30 November 2021, prior to the 1 December 2021 deadline for the provision of evidence of first dose COVID-19 vaccination.

[36] I am unconvinced by the Applicant's assertion that he was confused as to whether he was to be dismissed. In such circumstances, I hold the view that the Applicant had a reasonable opportunity to find out that he had been dismissed. A letter was provided to the email address he had provided to the Respondent. It is accepted that in a situation where an employee is informed by email that she or he has been dismissed, the employee can usually be regarded as knowing, or having had a reasonable opportunity to know, of the dismissal when the email is received in the inbox of the employee's usual email address." (footnote omitted)

[42] As a result of these matters the Deputy President concluded the matter of whether Mr Hunter first became aware of his dismissal after it had taken effect was a neutral factor in her consideration.

[43] In relation to her consideration of the other criteria within s.394(3);

• The Deputy President found that there is no suggestion that Mr Hunter challenged or disputed his dismissal and that such weighed against a finding of exceptional circumstances. (s394(3)(c))

• She found factor of prejudice to the employer was a neutral consideration in all the circumstances. (s394(3)(d))

• In relation to the matter of merit the Deputy President noted that evidence on the merits is rarely called at an extension of time hearing and the merits of the application more generally would need to be scrutinised, again finding consideration of this factor to be neutral. (s394(3)(e))

• As to the matter of fairness between Mr Hunter and other persons in a similar position she was not satisfied that the criteria weighed strongly in favour of either party based on the submissions filed and that it was accordingly neutral consideration. (s394(3)(f))

[44] The Deputy President's consideration of the criteria within s.394(3) is on the basis of the material seen by the Full Bench consistent with the material and evidence before her. Our finding in relation to the Appellant's appeal Ground 2 is that we find no error of principle or law arises and that there is no significant error of fact.

[45] In relation to the Appellant's Grounds 2 and 3 dealing with the merits of his unfair dismissal application the Full Bench discerns that the Deputy President gave the correct consideration to the matter of merit. Although there is no doubt the Appellant considers his case to be meritorious, as no doubt does the Respondent of its case, those matters do not require detailed agitation in extension of time applications. The material and evidence before the Deputy President plainly only demonstrated the parties' respective cases were not without merit.

[46] Consideration of appeal Grounds 2 and 3 does not show decision-making by the Deputy President other than in a manner consistent with the material and evidence before her. No error of principle or law arises and there is no significant error of fact.

[47] Having considered the material within the Appellant's Notice of Appeal and his written submissions, we are not satisfied that there is an arguable case of error. The basis on which the Deputy President reached her Decision was an orthodox approach to the determination of whether the Appellant should be granted a further period to make the application, applying the correct legal principles. The Deputy President considered, and dealt with the evidence that was before her, and made findings of fact based on the evidence.

[48] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.604(2) that:

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

• 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 Commissioner were disharmonious when compared with other decisions dealing with similar matters.

[1] Daniel James Hunter v Karara Mining Ltd [2022] FWC 494.

[2] [2022] FWC 494, [28], noting that the date in the referenced paragraph is erroneously stated to be 15 December 2022.

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

[4] Fair Work Act 2009 (Cth) s.400(2).

[5] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216-217 (Mason CJ, Brennan, Dawson and Gaudron JJ): applied in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, [69] (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, [44] - [46].

[6] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266, [24]-[27].

[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266, [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177, [28].

[8] [2010] FWAFB 5343, 197 IR 266, [24] - [27].

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

[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140, [82].

[11] Chandra Gupta Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530, [6].

[12] AB v Tabcorp Holdings Ltd [2015] FWCFB 523, [11].

[13] See [2022] FWC 494, [56] and Print No. PR739055.

[14] [2022] FWC 494, [41].

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