Fair Work Act 2009

s.604 - Appeal of decision

Trimatic Management Services Pty Ltd ATF the Trimatic Management Services Unit Trust T/A TSA Group

Appeal against decision [2019] FWC 7729 of Deputy President Young at Melbourne on 11 November 2019 in matter number C2019/5288 - extension of time - permission to appeal refused.

[1] Mr Harjit Singh has applied for permission to appeal and appeals a decision[1] made by Deputy President Young on 11 November 2019 (the Decision) in which the Deputy President declined to grant his application for an extension of time to lodge a general protections application under s.365 of the Fair Work Act 2009 (Cth) (the FW Act). The matter was listed for hearing in respect of permission to appeal only.

[2] Mr Singh was employed by Trimatic Management Services Pty Ltd ATF the Trimatic Management Services Unit Trust T/A TSA Group (the Respondent) as a casual Inbound Service and Sales Consultant from 19 October 2018 until his dismissal on 17 January 2019. Mr Singh filed his general protections dismissal application on 26 August 2019. The Deputy President found that the application was filed 199 days after the 21 day statutory time period under s.366(1) and that it was therefore necessary for Mr Singh to obtain an extension of time under s.366(2). Mr Singh subsequently made an application to extend time.

[3] The extension of time application was heard on 28 October 2019 and the Decision published on 11 November 2019. The Deputy President refused an extension of time, stating "Having regard to all the factors I am required to take into account under section 366(2), I am not satisfied the requisite exceptional circumstances exist."[2]

[4] An appeal under s.604 is 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.

[5] 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.[4] The public interest is not satisfied simply by the identification of error,[5] or a preference for a different result.[6]

[6] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal, include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[7] 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.[8] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[9]

[7] 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 those grounds to consider whether they raise an arguable case of appealable error.

[8] We will say something about s.366 first, before turning to the grounds of appeal articulated by Mr Singh.

[9] Section 366(1) provides that an application under s.365 (a general protections application) must be made:

"(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2)."

[10] The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.[11]

[11] Section 366(2) sets out the circumstances in which the Commission may grant an extension of time as follows:

"(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position."

[12] The meaning of "exceptional circumstances" in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd[12] 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." (emphasis added)

[13] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.[13]

[14] In deciding whether there are exceptional circumstances such as to enliven the discretion to extend time, the Commission must take into account the matters specified in s.366(2)(a)-(e).

[15] In the Decision, the Deputy President gave consideration to each of the matters specified in s.366(2)(a) to (e) that were relevant to the matter before her and, as stated above, concluded that there were no exceptional circumstances such as to warrant an extension of time.

[16] In relation to s.366(2)(a), the reason for the delay, the Deputy President summarised the reasons advanced as including that Mr Singh "was depressed, stressed, anxious and mentally unwell",[14] that he "had no money and was in financial distress",[15] had to move house,[16] "searched and applied for alternate employment, attended interviews and ultimately obtained alternate employment" and performed odd jobs for friends in return for money[17] and was "unaware of his rights as a non-permanent resident or citizen".[18] The Deputy President addressed the reasons for the delay at paragraphs [10] to [15] of the Decision:

"[10] In his materials and in his evidence at the determinative conference Mr Singh says that following his dismissal he was depressed, stressed, anxious and mentally unwell. I accept that Mr Singh was stressed following the termination of his employment. However, this is both a common and understandable reaction. Mr Singh did not file any medical evidence in support of his asserted depression, anxiety or mental illness, nor any evidence that this prevented him from lodging the application in time.

[11] He says he had no money and was in financial distress, including resulting from a car accident (and the costs associated with repairs of a replacement car which he purchased) and because he had a student loan to pay off. However, Mr Singh provided no evidence in support of this financial distress. Further, in my view, although regrettable, financial distress following the termination of one's employment and the consequent loss of income cannot be said to uncommon or special or unusual.

[12] Mr Singh also says in his materials that he had to move house. However, he did not give any evidence about this matter at the determinative conference. Mr Singh also says that he had a heart attack in 2018, has a cardiac stent and takes medication which he is required to pay for. At the determinative conference Mr Singh did not seek to rely upon this as a reason for the delay; rather, as I understand it, this was provided as a further example of the expenses Mr Singh had to meet, the financial stress he was under following his loss of employment and income and the challenges he has faced since the termination of his employment.

[13] Mr Singh gave evidence that following the termination of his employment he searched and applied for alternate employment, attended interviews and ultimately obtained alternate employment in early March 2019. Unfortunately, Mr Singh says his employment in this new role was terminated after two weeks (Second Termination). Since that time, Mr Singh's evidence was that he has continued to search for alternate employment and has applied for, and attended interviews for, a number of roles. Further, Mr Singh also gave evidence that since the termination of his employment he has done odd jobs for friends for money. If Mr Singh had sufficient capacity to search, apply for, obtain and attend work, and undertake odd jobs for friends for money, it is difficult to see how he did not have sufficient capacity to lodge the application in time.

[14] Finally, Mr Singh also says that he was unaware of his rights as a non-permanent resident or citizen to challenge his dismissal. It is well established that ignorance of one's rights is not an acceptable explanation for late lodgement. Further, Mr Singh gave evidence that sometime in March 2019, following the Second Termination, he accessed the Fair Work Commission website to obtain information as to his rights to challenge that dismissal. Accordingly, even if it is accepted that Mr Singh was not aware of his rights to challenge his dismissal after his employment ended on 17 January 2019, it is difficult to see how it can be said that after he accessed the Commission websitpe in March 2019 he remained unaware of his rights to challenge his dismissal after that time.

[15] Accordingly, in my opinion, Mr Singh has failed to provide an acceptable or reasonable explanation for the delay in lodgement. This weighs against the granting of an extension of time." (references omitted)

[17] The Deputy President dealt with the remaining matters specified in s.366(2)(b)-(d) at paragraphs [16] to [22] of the Decision as follows:

• Mr Singh did not dispute his dismissal at the time of his termination of employment or at any time thereafter prior to the lodgement of his application[19] (s.366(3)(b));

• the Deputy President was not persuaded that any particular prejudice would accrue to the Respondent if the extension of time was granted, such that it was a neutral factor[20] (s.366(2)(c));

• On the basis of the material before her, the Deputy President concluded that the merits of Mr Singh's application appeared to be weak[21] (s.366(3)(d));

• As the parties did not draw attention to any persons or cases that would be relevant in relation to the question of fairness as between Mr Singh and other persons in a similar position, the Deputy President considered this to be a neutral consideration[22] (s.366(2)(e)).

[18] Having considered the factors in s.366(2), insofar as they were relevant, the Deputy President concluded that she was not satisfied that there were the requisite exceptional circumstances that would give rise to the need for the Commission to consider exercising its discretion to grant an extension of time. On that basis, Mr Singh's application was dismissed.

[19] The grounds of appeal listed in Mr Singh's notice of appeal are:

• Losing opportunity costs and time;
• Financial support; and
• Future in stake (sic)"

[20] These stated grounds of appeal do not point to error on the part of the Deputy President but rather, consequences flowing from the termination of Mr Singh's employment.

[21] However, in his written outline of submissions, Mr Singh asserts the Deputy President erred in failing to consider the impact the termination had on him. In particular, Mr Singh referred to mental illness for which he could not obtain medical treatment, the impact the termination has had on his ability to obtain new employment and his financial commitments. Mr Singh also submitted there was a lack of merit attached to the reason he was given when terminated by the Respondent.

[22] While there were no public interest grounds outlined in the notice of appeal, Mr Singh submits there are the following public interest grounds in his written outline of submissions:

"1.Fair work Unfair Dismissal Application criteria made me disheartened to apply for it leading to prove to grant for Extension of time

2. Employer not providing Sufficient Documentation when asked which was useful for my job and Unclear with its Terms and Conditions of doing work

3. Lack of Financial & Mental help/Aid Available for Probationary Terminated People especially Non-Australian Citizens/ Temporary Visa Holders

4. Lower Chances to secure employment Post Probationary Termination

5. Odd Jobs Experience isn't always helpful to secure Professional Job

6. No Experience means no opportunities available anywhere and lacking in competition and waste of time"

[23] Mr Singh's oral submissions at the hearing of his application for permission to appeal focussed firstly on the merits of his general protections dismissal application and he then re-agitated matters which he argued before the Deputy President. When asked to address error in the Decision, Mr Singh turned to the Deputy President's conclusions regarding the reasons he gave for the delay and in particular, her observations that he submitted no supporting evidence regarding the impact of the termination on either his health and well-being or his financial distress. In addition to saying it was not possible for him to obtain medical evidence because he could not access medical treatment, Mr Singh said he did not know he should have put evidence of this nature before the Deputy President.

[24] Mr Singh seeks to tender a number of documents for the purposes of the appeal. These include:

• A document establishing Mr Singh has an education loan;

• A summary of Mr Singh's monthly living expenses;

• A document confirming that Mr Singh's visa required him to maintain health insurance;

• A discharge summary relating to Mr Singh's hospital admission in 2018 for an anterolateral myocardial infarction; and

• Information regarding Mr Singh's Medibank health cover.

[25] Section 607 of the FW Act provides this Full Bench with discretion to admit new evidence on appeal. The principles governing the exercise of that discretion are well established. In Akins v National Australia Bank[23] the Court noted that while it is not possible to formulate a test which should be applied in every case, in general three principles should be applied:

• it must be shown that the evidence could not have been obtained with reasonable diligence for use at the proceedings at first instance;

• the evidence must be such that there must be a high degree of probability that there would be a different decision; and

• the evidence must be credible.

[26] In subsequent decisions of the Commission, these principles have been applied as a useful guide to the exercise of discretion under s.607(2),[24] and we likewise do so.

[27] Applying these principles, we have decided not to admit the evidence. Firstly, we are not satisfied this evidence could not have been obtained with reasonable diligence for use at the proceeding before the Deputy President. Secondly, we consider there is no high degree of probability that there would be a different decision were the evidence found to be credible and admitted. In relation to Mr Singh's health following the termination, the evidence before the Deputy President was that during the period of the not insignificant delay, Mr Singh was capable of applying for and did apply for and obtain new employment, move house and perform odd jobs for friends for money . Mr Singh would need to explain how his unfitness arising from his health condition and distress did not apply to these activities, but did apply to a Commission claim. In relation to Mr Singh's financial distress, we are not persuaded the evidence he seeks to tender is of such a nature that there is a high degree of probability that there would be a different decision.

[28] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[25] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[26] Therefore it is necessary, in an application for permission to appeal against a decision made under s 366(2), to demonstrate that there is an arguable case and that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King[27] - that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust.

[29] In reaching our decision in this matter we have taken into account the written material filed by Mr Singh, both on appeal and at first instance, the transcript of the hearing held on 28 October 2019 and Mr Singh's oral submissions in support of his appeal. Independent of Mr Singh's notice of appeal and submissions, we have carefully reviewed the Decision.

[30] We are satisfied the Deputy President considered and attributed weight to each of the matters she was required by the FW Act to take into account and concluded that when they were considered together, there were not the requisite exceptional circumstances warranting the granting of a further period to make an application, pursuant to s.366 of the FW Act. We do not identify any error either in the Deputy President's approach to the considerations in s.366(2) of the FW Act or in her conclusion that in this case, there was an absence of exceptional circumstances warranting an extension of the period in which the general protections dismissal application was made. No basis for an arguable contention of appealable error is ascertainable. Furthermore, we wholly agree with the Decision. The Decision does not raise any question of law or general principle worthy of consideration at the appellate level.

[31] As we are not persuaded that Mr Singh has established any appealable error in the Deputy President's decision, or that there are any other considerations that warrant the grant of permission to appeal, permission to appeal is refused and the appeal is accordingly dismissed.

[1] [2019] FWC 7729.

[3] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[4] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44]- [46].

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

[6] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [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 at [28].

[7] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200 at 220; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [26].

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

[9] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, 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, 241 IR 177 at [28].

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

[11] See s.36 of the Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009, see s.40A of the FW Act; Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.

[12] [2011] FWAFB 975.

[13] (Also see Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 (No 2) [2007] FCA 388 at [23]- [26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J)).

[14] [2019] FWC 7729 at [10].

[23] [1994] 34 NSWLR 155 at 160.

[24] J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963; Abigroup Contractors Pty Ltd v Mr John Crema, Mr Paul Edwards, Ms Christine Comley and Mr Ray Allan [2012] FWAFB 8453.

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

[26] Halls v McCardle and Ors [2014] FWCFB 9020.

[27] [1936] HCA 40, 55 CLR 499.

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