Ittyerah v Coles Supermarkets [2021] FCA 412 | Case summary

Ittyerah v Coles Supermarkets [2021] FCA 412 | Case summary | Zoe

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Factual background 5 As noted above, the applicant was employed by the respondent as a store cleaner from September 2015 until he was dismissed on 22 July 2019, which took effect from 23 July 2019. The applicant was dismissed for performance and conduct issues, including failing to follow lawful and reasonable directions to attend meetings with his line manager, failing to attend a medical assessment and for directing foul language towards his manager. The applicant takes issue with those assertions, and the underlying claim to which the extension of time is sought relates to those matters. 6 Although the applicant is unrepresented in these proceedings, as he was in the FWC, he gave evidence in the FWC that he was a qualified legal practitioner in India, and is undertaking the Diploma in Law course administered by the Legal Profession Admission Board to qualify for admission to practice in Australia. 7 On 22 July 2019, after his termination, the applicant wrote an email to his area manager stating that he would "file an appropriate action with the Fair Work Commission within the statutory time frame seeking reinstatement and back pay". 8 On 14 August 2019, the applicant filed an unfair dismissal application pursuant to s 394 of the FW Act, which was one day outside of the prescribed 21 day period. An explanation for that delay was provided in his application to the FWC: I have been delayed by one (1) day in making the application. I have two examinations of the Legal Profession Admission Board Diploma in Law (for the subjects 'Commercial Transactions' and 'Law of Evidence') in the first week of September. I have been significantly delayed in studying for these exams due to disciplinary proceedings commenced by Coles Supermarkets (Australia) Pty Ltd, including delays due to the time spent in responding to the allegations and issuing notices to retain CCTV footage and other evidence. I had to prioritize finishing some part of my studies before I could focus on this unfair dismissal application. If I fail or do not take an exam, it will result in the course fees and time / costs of 6 months being wasted and will delay the completion of the course by 6 months. Further, I am not an expert in employment law. It has been time consuming to go through the relevant employment law aspects relating to this complaint of unfair dismissal and applying the law to a complex set of facts so that I can make a coherent and legally sound application. 9 On 26 August 2019, the respondent filed a response in which it objected to the applicant's application on the ground that it was out of time. 10 Various procedural steps were undertaken. On 18 September 2019, the FWC wrote to the applicant referring to his need to seek an extension of time and invited him to provide a written statement explaining any relevant exceptional circumstances. In response to this request, on 24 September 2019, the applicant filed a written statement. On 13 October 2019, the applicant filed a witness statement which provided further information in support of his application for an extension of time. On 15 October 2019, the applicant filed an outline of submissions in support of his application for an extension of time. On 18 October 2019, the respondent filed an outline of submissions in response. On 25 October 2019, the applicant filed an outline of submissions in reply. On 28 October 2019, the application for an extension of time was heard before Deputy President Dean. On 14 November 2019, the Deputy President dismissed the applicant's application. On 4 December 2019, the applicant filed a notice of appeal. 11 On 9 December 2019, Vice President Hatcher, the presiding member of the Full Bench, issued directions which required the applicant to file an outline of submissions not exceeding three pages addressing the requirement for permission to appeal by 6 January 2020 and directed that oral submissions of any party at the hearing not exceed one half hour in length. On 20 December 2019, the applicant sent an email to the presiding member seeking a variation of those directions to enable him to file an outline of submissions not exceeding 10 pages by 13 January 2020 and to allow any party to make oral submissions not exceeding one hour in length. On 23 December 2019, the applicant's request to vary the directions was rejected on the basis that the matter was listed only for permission to appeal. On 6 January 2020, the applicant filed written submissions, which were seven pages in length. 12 On 13 January 2020, the application for permission to appeal was heard before the Full Bench and on 29 January 2020, the Full Bench refused permission to appeal the Single Member Decision.

[16]

Decision of the Full Bench 20 The Full Bench commenced its reasons by detailing the chronology of events at [1]-[4] and summarising the reasons of the Deputy President at [5]-[12]. The Full Bench identified the grounds of appeal and pithily summarised an overview of the applicant's claims at [13]-[15]. 21 The Full Bench identified its task at [16]-[22]. I note the applicant does not appear to challenge this summary. 22 The Full Bench then addressed the grounds of appeal at [23]-[43]. As to the factor of delay, the Full Bench concluded at [23]: Regarding the reasons for delay, we do not accept, as was put by Mr Ittyerah, that there is any arguable case of appealable error, let alone significant factual error, that the Deputy President misconstrued the applicant's reasons for the delay. Mr Ittyerah's prime reasons for his delay were said to be due to his forthcoming examinations and the complexity of his unfair dismissal application. These reasons were addressed by the Deputy President and were found not to favour a finding of exceptional circumstances. 23 The Full Bench then analysed the reasons at [24]-[27]. The issue of the applicant's awareness of the dismissal is addressed at [28]-[32]. Whether any action had been taken is addressed at [33]-[34]. Prejudice to the employer is addressed at [35]-[38]. The issue of the merits of the application is addressed at [39]-[41]. The issue of a person in a similar position is dealt with at [42]. There was also an allegation of bias against the Deputy President, on which the Full Bench concluded at [43]: Finally, Mr Ittyerah submits that the Deputy President's decision reflects actual or apprehended bias. We consider that the Deputy President properly considered the arguments put by the parties. None of the factors relied upon by Mr Ittyerah exposes anything other than the Deputy President making various findings considered to be warranted by the facts presented and by the application of accepted legal principles to those facts. The fact that the Deputy President's decision was adverse to Mr Ittyerah and he does not agree with it does not demonstrate actual or apprehended bias. 24 Finally, on the issue of public interest, the Full Bench concluded at [44]: Having regard to what Mr Ittyerah has put regarding the public interest of his appeal, we do not consider that permission to appeal in this matter should be granted. This is because the grounds of appeal are not sufficiently arguable. We do not consider that his appeal raises any issue of importance or general application, or that there is any relevant disharmony in first instance decisions that requires resolution at the appellate level. Nor are we persuaded that a substantial injustice may result if permission to appeal is refused.

[17]

Section 394(3) of the FW Act 25 Relevantly, the provision is as follows: Application for unfair dismissal remedy (1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal. Note 2: For application fees, see section 395. Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part. (2) The 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 (3). (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: (a) the reason for the delay; and (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 (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. 26 The applicant advanced submissions as to the construction of s 394(3) of the FW Act. The submissions were primarily twofold. 27 First, the applicant made submissions directed to the interpretation of "exceptional circumstances". He submitted that the meaning of the term "exceptional circumstances" in s 394(3) is derived solely from the assessment of the factors in s 394(3)(a)-(f) and "does not impose an onus over and above the onus of satisfying an assessment based on the factors". He submitted the phrase "taking into account" supported that construction, as does Item 1573 of the Explanatory Memorandum which states "this discretion must be exercised in accordance with sub-clause 394(3), which provides an exhaustive list of the factors FWC must take into account when determining if there are exceptional circumstances". The applicant submitted "the term 'exceptional circumstances' was used to ensure that the 'reason for the delay' met the standard required for an extension of time under the Administrative Decisions (Judicial Review) Act 1997 (Cth)" (ADJR Act). The applicant submitted the Single Member Decision erred in relying on Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 to conclude the phrase "exceptional circumstances" has its ordinary meaning. The applicant submitted that the Full Bench erred when it stated that s 394(3) requires "exceptional circumstances" to be established. He submitted that exceptional circumstances did not exist under the ADJR Act relying on Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley), and that the conclusion of the FWC implied that the standard under the FW Act is more onerous than the standard under the ADJR Act, when it is not. 28 Second, the applicant also submitted, based on a construction of the provision that certain factors in s 394(3) could only weigh in favour of supporting an extension of time (and therefore could not weigh against the grant of an extension). This submission was primarily made in respect of subsections (b) and (d). It was also submitted that the s 394(3) factors could only weigh either in support or against the extension of time, no factor could be neutral. This submission was made in respect to subsection (f). 29 To illustrate the submission I refer to that advanced in relation to subsection (b). The applicant submitted that the subsection was ambiguous in its meaning as the provision does not say whether the factor can be used for or against the grant of an extension of time. It was said that the ambiguity can be resolved by referring to Item 1574 of the Explanatory Memorandum. The applicant submitted it was apparent from that that the purpose of s 394(3)(b) is to address situations where the person fails to lodge an application within the time limit because they were unaware they had been dismissed until sometime after the dismissal occurred. Therefore subsection (b) was not intended to make awareness of a dismissal a factor militating against a finding of exceptional circumstances. He submitted the structure of the provision supports his conclusion and it is not possible that the intent of the legislature was for the factor to weigh against the grant of an extension. Woolworths Ltd v Lin [2018] FWCFB 1643; 273 IR 380 (Woolworths) which is against that proposition, was said by the applicant to be incorrectly decided. 30 Neither submission can be accepted. 31 The starting point for ascertaining the meaning of a statutory provision is the text of the statute whilst having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ. 32 The language which has actually been employed in the text of legislation is the surest guide to legislative intention: Alcan at [47]. The task of the courts is to interpret the words used by Parliament. The courts do not determine what Parliament intended to say: R v JS [2007] NSWCCA 272; (2007) 230 FLR 276 at [142]; citing Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 (Re Bolton). In Re Bolton the text of the statute prevailed over its apparently intended broader operation as reflected in a second reading speech. Although it is permissible to use this extrinsic material to aid in the interpretation of an Act pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth), the clear text of the law will ultimately be determinative: see Re Bolton at 518, 532 and 547, and see Lodhi v Attorney-General (Cth) [2020] FCA 1383 at [12]-[15]. 33 As to the first submission, the provision expressly requires an applicant establish "exceptional circumstances". That is determined by the Commission considering the factors in s 394(3) and assessing whether an applicant has established exceptional circumstances exist in the particular case. The phrase "exceptional circumstances" is to be given its ordinary and natural meaning. That the factors to which regard must be had in making that assessment are identified in the provision, does not alter that proposition. Those factors say nothing about the meaning of the phrase "exceptional circumstances". All words must prima facie be given some meaning or effect: Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414; Project Blue Sky at [17]. The phrase must have work to do; the interpretation contended for by the applicant renders the phrase meaningless. 34 The applicant's submission is not supported by the text of the provision when considered in context and given its purpose. The express requirement of "exceptional circumstances" is to be contrasted with the position under the ADJR Act, which does not carry such requirement: see Hunter Valley at 348. 35 As to the second submission, the section does not address the issue of what weight can be attached to particular factors, nor what weight can be attached to a factor vis-à-vis any other factor. The appellant's submission, as illustrated by reference to subsection (b), proceeds on the premise that there is an ambiguity with the provision, where there is none. It proceeds on the premise that the provision was required to state what weight could be attached to the factor (being either for or against an extension of time), the absence of which leads to ambiguity, when it does not. It also proceeds on the basis that the Explanatory Memorandum confines the use of the provision to weighing in favour of an extension, which on a proper reading, it does not. The effect of the applicant's submission is, for example, that subsection (b) must be irrelevant to a person who is aware of the deadline to file and chooses not to comply. That cannot be so. The weight to be attached to this, as with any factor, will ultimately depend on the particular facts. 36 There is no basis in the text of the provision, given its purpose and considered in context, to support the applicant's contention that this, or other factors can only be considered in favour of the grant of an extension. Nor is there any basis in the text of the provision to confine the factors to only being in favour of or against the grant of the extension, with a factor being unable to be neutral. If Parliament had intended to confine the use of these factors in the manner contended, it would be expected to be in the text. As noted above, the provision does not address the issue of the weight to be attached to particular factors and, as such, the weight to be given to a particular factor is for the administrative decision maker, the FWC: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 41; Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [197]; Menzies v Fair Work Commission [2020] FCA 36; (2020) 293 IR 301 (Menzies) at [34]. 37 It follows that the premises on which the applicant's submissions are based, are flawed.

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Preliminary matters 38 Before considering the grounds of review is it appropriate to first refer to four matters, as they provide context to the arguments raised. 39 First, a person who is aggrieved by a decision of a Commissioner may appeal the decision to a Full Bench of the FWC, but only with the permission of the Commission: s 604(1) of the FW Act read with s 613(1). In appeals in relation to unfair dismissal matters, the Full Bench must not grant permission to appeal unless it considers that it is in the public interest to do so: s 400(1). To the extent that the appeal is on a question of fact, it may only do so where the decision involves "a significant error of fact": s 400(2). The determination of whether it is in the public interest to grant permission to appeal involves a broad value judgment: Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [44]; Menzies at [26]; Mwango v Fair Work Commission [2019] FCA 1274 (Mwango) at [17]. 40 As noted above, the Full Bench concluded at [44], which is recited above at [24], that it was not in the public interest to grant permission to appeal. The respondent submitted that the applicant has not challenged that conclusion, relying on Merhi v Commonwealth of Australia [2021] FCA 181 (Merhi) at [46]. That submission is correct. That said, the applicant has challenged matters which would fall within that part of the conclusion that the grounds are not sufficiently arguable. However, he has not challenged [44] itself, the ultimate conclusion or any of the other bases for the conclusion which are evident in [44]. Given the extent of the challenges to the decision, the absence of a challenge to this finding is notable. 41 It is also important to recall that this was an application before the Full Bench for permission to appeal, it is not a de facto or preliminary hearing of the appeal. In that context it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. It was therefore, not necessary for the Full Bench to refer to every piece of evidence and every contention made by an applicant: Menzies at [37] citing Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]. Similarly, the Single Member Decision related to an application for an extension of time, and the content of reasons must be considered in that context. 42 It is also appropriate to note in this context, that the decision of an administrative decision maker, should be read fairly, in context and as a whole, and not be read "minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2. It is not necessary for those making a decision to refer to "every piece of evidence and every contention" made by a party: Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157; (2013) 240 IR 178 (Linfox) at [47] citing WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) FCR 593 at [46], 75 ALD 630 at 641. Much depends upon the importance of the submission to the claims being made: Linfox at [47]. 43 Second, the jurisdiction of the Court is a limited one. Jurisdiction is conferred by s 562 of the FW Act, to be read with s 563, and also by s 39B of the Judiciary Act. This is not a merits review: Menzies at [27]. The Court may only grant relief for jurisdictional error. The applicant identifies what he says is a number of bases thereof. In so far as the applicant contends that the Full Bench made an error of law on the face of the record, certiorari is not available, since the record does not include the reasons of the Full Bench: see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; (2015) 235 FCR 305 at [88]-[97]; Menzies at [27]. I note also that the applicant alleges a denial of procedural fairness by the Full Bench. 44 As to the limited nature of the jurisdiction, Katzmann J recently summarised the position in this context in Menzies at [28]: A failure to accord procedural fairness will vitiate an administrative decision: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. Thus, a decision may be quashed for actual or apprehended bias: see, for example, Minister for Immigration v Jia Legeng (2001) 205 CLR 507. Jurisdictional error will also arise if the Full Bench misunderstood the nature of its jurisdiction, misconceived its duty, failed to apply itself to the question it was required to answer, or misunderstood the nature of the opinion it was to form: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ). A mistake of law, however, even as to the proper construction of a statute, does not necessarily give rise to jurisdictional error: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; 64 WN (NSW) 107 (Jordan CJ); Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees' Union (2015) 234 FCR 405 at [58]-[69]. Thus, as Buchanan J put it in Coal & Allied Mining Services Pty Ltd v Lawler at [43]: Provided the Full Bench did not misunderstand its powers and functions in some [relevant] respect …, the evaluation of the matters relevant to whether permission to appeal should be given was an issue committed to the Full Bench by the Act. It is not a matter for this Court, whose role in a case such as the present is limited to examining whether jurisdictional error was committed. 45 And later at [39]-[40]: [39] Fifthly, even if the Full Bench were wrong to conclude that the Commissioner did not fall into error or that there was no significant error of fact or that the Commissioner's approach was not flawed or that there was "a diversity" of first instance decisions calling for appellate review, it would not have fallen into jurisdictional error. Rather, it would have committed an error within jurisdiction which is not amenable to review. As Hayne J explained in Aala at [163]: There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.). The former kind of error concerns departures from limits upon the exercise of power. The latter does not. [40] In Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 McHugh J made the same point with respect to the Full Bench of the Australian Industrial Relations Commission (AIRC), the predecessor of the Fair Work Commission. In dismissing an application for an extension of time to apply for constitutional writs directed to the AIRC, his Honour observed at [23] that the role of the Full Bench was to ascertain whether a commissioner had made an error in dismissing an application for relief arising out of the termination of the applicant's employment. At [24] his Honour said: In my view, there can be no doubt that the Full Bench understood that its function was to ascertain whether or not Jones C had made a relevant error. The Full Bench considered the applicant's grounds of appeal, and concluded that, in respect of each of them, Jones C did not relevantly err. If the Full Bench was wrong to reach this conclusion, then that was an error within jurisdiction … And see Mwango at [41]-[45]. 46 It follows that it is not for this Court to assess whether the applicant should be granted an extension, and therefore the primary relief sought by the applicant, that the matter be remitted to the Full Bench to hear his appeal is not open. 47 Three, the applicant has challenged both the Single Member Decision and that of the Full Bench. As the applicant has exhausted his appeal rights under the FW Act, there will often be compelling reasons for this Court not to entertain an application for judicial review of the primary decision in addition to an application for judicial review of the Full Bench's decision relating to the Single Member Decision: Mwango at [36]. 48 The applicant's submission is that this Court should deal with both as the FWC has adopted a "distorted" position on the interpretation of s 394(3), and this distorted position is reflected in both decisions. The substantive decision by the Deputy President and the Full Bench merely refused permission to appeal since it did not find an appealable error. The applicant's submission is that if the matter is remitted to the Full Bench to reconsider, it may make the same error and refuse permission to appeal. I will return to this matter later in the judgment. Suffice to say, there is no proper basis to assert that if the matter were to be returned to the Full Bench, it would do other than consider the matter according to law. 49 Finally, the applicant identified a number of errors which he submitted exist in the Single Member Decision and that of the Full Bench, with his submission being concentrated on the Single Member Decision. These are not drafted as grounds of review would ordinarily be drafted. These errors are identified by reference to the factors in s 394(3) of the FW Act and I take them to be the grounds of review. The applicant claims jurisdictional errors were made in respect to each factor. The applicant submitted that, contrary to the respondent's submissions, the errors he has identified in relation to the factors do not go to the question of weight but are based on the construction of the statute as to "weightage". For the reasons given above, the applicant's statutory construction arguments as to the weight to be given to factors is not correct. In any event, as illustrated below, in reality some of the applicant's submissions are directed to the merits, however the applicant wishes to characterise the claimed errors. In respect to number of matters argued, even if accepted, it is difficult to understand how they could found jurisdictional error. 50 The Court Book for this matter filed by the applicant is extensive, with the respondent taking objection to some parts of its contents. Nonetheless, I have taken into account the content of the material in so far as it reflects the conduct of the proceedings in the FWC, including the material before the Deputy President and the Full Bench.

[19]

Submissions 51 The applicant contended that the Deputy President made a finding that he made a conscious decision to file the unfair dismissal application one day outside the prescribed period, of which there is no evidence. The applicant submitted that the Deputy President misstated his submission about a medical condition, by stating that he was delayed in filing the application due to that medical condition. By wrongly restating his submissions, the Deputy President failed to consider his submissions, identified the wrong issue, asked itself the wrong question and took into account an irrelevant consideration. He submitted that to the limited extent the Deputy President took into account his factual submissions as to the 'reason for the delay' each factual submission was separately considered to find that he did not provide an acceptable explanation for the delay. He submitted that the Deputy President: ignored his primary submission addressing the reason for the delay which was his state of mind; failed to consider the factual reasons for the delay as a cumulative set of circumstances affecting the same person; and failed to consider his state of mind. He submitted that the Full Bench merely confirmed the Single Member Decision by extracting specific parts of the material before it which would support that decision while ignoring substantial parts of the material that he referred to establish the errors. The applicant submitted that the Full Bench committed a "jurisdictional error" and a "constructive failure to exercise jurisdiction". 52 The respondent submitted that the Deputy President and the Full Bench gave proper consideration to each of the relevant matters that were raised by the applicant. The respondent directed attention in particular to [4], [9], [10]-[18], [19] and [20]-[22] of the Single Member Decision, and [20], [23]-[26] of the Full Bench's decision. 53 The respondent also submitted as follows. First, the absence of evidence to support a finding by an administrative decision maker will only constitute jurisdictional error if the finding is, at least, a critical step in its ultimate conclusion. The reference to "a conscious decision to file on 14 August 2019, being one day outside the prescribed period" is not a "critical finding" which would found a jurisdictional error if made without evidence. In any event, on a fair reading it was referring to the applicant's concession that he had made a conscious decision to prioritise his studies. There was no obligation on the Full Bench to expressly refer to every contention raised by the applicant. 54 Second, as to the alleged failure to consider submissions regarding the applicant's state of mind, the material filed by the applicant in the FWC was that his primary reasons for delay comprised his prioritisation of his legal examinations and the complexity of the matter. The submissions regarding his "state of mind", were principally related to his need to prioritise his legal examinations. The submissions were in no way "significant" or "centrally relevant". A failure to consider those matters would not lead to jurisdictional error. In any event, the FWC expressly referred to these submissions at [12], and referred to the "extensive details of his personal circumstances which he claimed made it critical that he prioritise his examinations". The applicant's submissions on this topic were taken into account. Further, given the finding at [19] and [39] it is clear that the FWC considered the reasons cumulatively. The Full Bench's finding at [26] demonstrates that all relevant matters were taken into account. 55 Third, as to the alleged irrelevant consideration in respect of a medical condition, the applicant's submissions relating to his "state of mind" could reasonably be regarded as a submission that the reasons for delay involved a medical condition, particularly having regard to the applicant's various claims that he suffered from symptoms of a "psychiatric injury". In any event, the Deputy President rejected this submission at [21] and therefore the alleged error is of no consequence. This submission was clearly addressed and rejected by the Full Bench.

[20]

Consideration 56 The applicant's submissions cannot be accepted. 57 First, it is reasonably apparent that the statement by the Deputy President at [20], that "a conscious decision to file on 14 August 2019, being one day outside the prescribed period", when read in context of the reasons and material before her, is referring to the fact that the applicant made a conscious decision to prioritise other matters (namely his studies), knowing that the deadline for filing existed. The Deputy President had summarised the applicant's submissions in this regard in the passages immediately above at [9]-[14], with reference at [11] to the applicant's submission that he needed to prioritise has examinations. There was plainly evidence in respect to that position. This was one of a number of alleged factual errors addressed in the applicant's written submission before the Full Bench, although not the focus of his oral submissions before that Bench. It was unnecessary for the Full Bench to expressly refer to the applicant's argument about this statement, particularly given its meaning as explained above. The Full Bench at [23] did state, inter alia, that the applicant's "prime reasons for delay were said to be due to his forthcoming examinations and the complexity" of his application, with a reference to the transcript of the hearing before the Deputy President. That passage accurately reflects the transcript, where the applicant submitted that "the primary reasons for delay that [he] has submitted is that he had to prioritise his examinations. He made a conscious decision to prioritise his examinations…because the application was complex he was delayed by one day" in filing it. 58 Second, and aligned with that, the Deputy President did not ignore the applicant's primary submission for delay being "his 'state of mind' caused by a cumulative set of circumstances". As is apparent from the passage of transcript referred to by the Full Bench, the submission is inconsistent with that advanced before the Deputy President and, at best, is a re-characterisation by him of what occurred below. In any event, as [12]-[13] of the reasons reflect, the Deputy President did consider the applicant's submission as to his state of mind. 59 Third, again, properly read, the Deputy President did not misconstrue the applicant's submission by referring to a medical condition at [21]. Nor did she fail to consider the applicant's submission as a result. Again, it is plain from the recitation by the Deputy President of the applicant's submission at [12]-[13], that the applicant relied on inter alia, a psychiatric injury. The statements at [21]-[22] are referring to those submissions. That can reasonably be described as a medical condition. In any event, the reasons immediately after the impugned passage reflect that the applicant's submission made in this regard were lengthy and involved a number of aspects. The Deputy President recognised as much. It was unnecessary to recite all the details of the submission or evidence, as contended by the applicant. The Deputy President observed that the applicant had filed lengthy written submissions and supporting documents in support of his application. The summary as to this factor in the reasons at [9]-[14], albeit brief, accurately reflects the material. Given the reasons of the Deputy President, there is no reason to suggest that her statement immediately following that observation at [4] that she had "given careful consideration to all the material he filed" reflects other than her approach to the application. That the applicant chose to file lengthy material does not necessarily require the reasons to recite all the details contained in that material. The Full Bench addressed the applicant's submission on both the misstatement and failure to consider his submission, rejecting both contentions at [24]-[25]. No jurisdictional error is established with that conclusion. There is no basis to contend that there has been a constructive failure to exercise jurisdiction. 60 Fourth, contrary to the applicant's contention, the Deputy President considered the matters relied on in accumulation, concluding at [39]: Having considered all the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an extension of time to Mr Ittyerah. Mr Ittyerah's circumstances were not out of [the] ordinary, unusual or uncommon (individually or when considered together), and therefore are not exceptional. 61 The Deputy President was not obliged to accept the underlying factual premises of his submission. It does not follow that because the Deputy President assessed the matters relied on by the applicant in respect to delay, that his submissions, in so far as they had been established, were not considered in combination. For example, the applicant complains that part of the circumstances relied on was the complexity of the matter. However, the Deputy President found at [22] that the application filed by him was not in any way complex. That must necessarily affect the assessment of the circumstances relied on. The Full Bench also concluded at [27] that the material does not identify issues of complexity. Similarly, it is apparent from [20]-[21] that the Deputy President, in considering the applicant's explanation for the delay being his studies, considered the extensive details as to his personal circumstances and medical symptoms (which is plainly a reference to the submissions summarised at [12]-[13] of the reasons). The Full Bench concluded at [26] that it considered the matters relied on by the applicant in respect to delay were properly addressed and considered by the Deputy President. No jurisdictional error has been established in that conclusion. 62 Finally, and in any event, it is difficult to understand how, even if the purported errors were established, they would be jurisdictional errors, and not errors within jurisdiction. 63 This ground is not established.

[27]

Consideration 73 The contention put by the applicant is that a lack of prejudice to the employer must always favour the grant of an extension. As explained above at [35]-[36], there is no basis in the text of the provision, or authority which supports that. 74 The Full Bench considered and rejected the submission at [35]-[38]: [35] Mr Ittyerah submits that a finding under s.394(3)(d) that there is no prejudice to the employer must always weigh in favour of the applicant for an extension of time and need not be considered a neutral factor as the Deputy President found. [36] This issue was considered by the Full Bench in Gail Miller v DPV Health Ltd (Hume) (DVP Health) where the Full Bench made the following observations at [21]: "[21] … However, bearing in mind that the relevant task is to consider whether the requisite exceptional circumstances exist, whether a lack of prejudice to the employer weighs in favour of such a conclusion or not will vary depending on the circumstances of the case. There is no necessary single conclusion which will apply in that respect. Where the delay involved is very short, as here, it will usually be entirely unsurprising that there is a lack of prejudice to the employer, and thus this will likely not weigh in favour of a finding of exceptional circumstances. As was stated by the Full Bench in Ozsoy v Monstamac Industries Pty Ltd, a case likewise involving a delay of one day: "[38] Ground 9 was an assertion that the absence of prejudice should have been found to be a positive consideration and not a neutral one. It identifies no error. The absence of a prejudice to the employer is usual in extension of time matters and does not provide a positive basis for finding exceptional circumstances warranting an extension of time for lodgement." [22] However in other circumstances, such as where the delay is a long one and the case will require multiple witnesses to be called to resolve contested factual issues, a conclusion that the delay would not cause prejudice to the employer might well weigh in favour of a finding of exceptional circumstances. It will all depend on the facts of the case. That different conclusions on this score have been reached in different decisions is not demonstrative of any disharmony on a question of principle. No arguable case of error in respect of the Deputy President's conclusion as to s 394(3)(d) is discernible." [37] Nothing put by Mr Ittyerah supports any arguable case that the Deputy President's conclusion concerning this statutory criterion involved an error of law. To the contrary, it is consistent with the Full Bench authority in DVP Health and that of the Full Bench in Ozsoy v Monstamac Industries Pty Ltd as set out above, and we see no reason why this Full Bench would take a contrary view. [38] Further, the guiding principles set out in Hunter Valley relied upon by Mr Ittyerah are not authority for the proposition that no prejudice to the employer must weigh in favour of an applicant for an unfair dismissal remedy. 75 As is plain, the authorities reflect that it is a matter of weight, which is fact specific to the particular case. The applicant's repeated claims that authorities which are against his submission are incorrect, does not necessarily make them so. The discussion in Miller and Ozsoy accords with the ordinary and uncontroversial principle, that the weight to be given to any factor depends on the particular facts of each case: see [36] above. 76 This ground is not established.

[29]

Submissions 77 The applicant submitted that in making a finding in relation to s 394(3)(e) of the FW Act, the onus is on each party to file evidence as to the merits of the matter. The applicant filed evidence upon which he was cross-examined, but the respondent did not. The applicant submitted that he should not be disadvantaged because the respondent failed to file any evidence. The applicant also submitted that, in the absence of any evidence of the respondent, there was 'no evidence' to find: that there were contested points of evidence; that the respondent had a prima facie defence; that the respondent had a meritorious case; or, that there was an absence of tested evidence. He submitted that the Deputy President failed to take into account relevant material, since it did not take into account his evidence and cross-examination. He submitted that the Full Bench stated that "this Commission has consistently held that evidence on the merits is rarely considered, let alone tested, in applications of this kind", which, when there is evidence available, is an error of law as it would be "a failure to take into account a relevant consideration". 78 The applicant submitted that the Deputy President's findings were based on evidence of records of disciplinary proceedings adduced by the applicant, and such finding is procedurally unfair. The applicant submitted that subsection (e) required the applicant to indicate the reasons why his application was meritorious, and it was necessary for the applicant to adduce records of disciplinary proceedings created by the respondent. Relying on such records to find there were contested points of evidence and that the respondent had a prima facie defence or a meritorious case, was procedurally unfair since the respondent did not adduce evidence from its staff who created those records, and because the applicant was denied an opportunity to examine such staff as to those records. The applicant also submitted that the Deputy President committed a "constructive failure to exercise jurisdiction" as she failed to apply herself to a question which the law prescribes, for example when assessing the merits of the application. 79 The respondent submitted that it is clear the merits of the application were taken into account by the Deputy President and the Full Bench. The FWC is not required to undertake a detailed examination of the substantial case in considering an extension of time application. The Deputy President referred to the stated reasons for dismissal and the applicant's denials in respect of the alleged performance issues and that some of the issues were trivial. There were clearly contested matters of fact which could only be resolved by a conference or hearing. The respondent's prima facie defence was summarised by the Deputy President at [35] and was based on evidence which had been adduced by the applicant, including the records of disciplinary meetings with the applicant which demonstrated a fair disciplinary process. In those circumstances, the Deputy President was entitled to consider the merits to be a neutral consideration. The Full Bench considered that conclusion and referred to the evidence before the Deputy President regarding the contested facts and the applicant's concession in cross-examination that he directed offensive language at the store manager. The Full Bench's comments at [41] do not disclose that it did not take into account the merits of the matter. Rather, the Full Bench was simply endorsing the approach of the Deputy President not to undertake a detailed examination of the substantial case in considering the extension of time application. No error arises from either the Deputy President's approach or that of the Full Bench. To the extent that the applicant seeks to challenge the weight afforded by the Commission and, specifically, that the factor was a neutral consideration, as above, such matters do not give rise to jurisdictional errors. 80 The respondent submitted that there was no denial of procedural fairness. Given the nature of the statutory task, the Deputy President was not obliged to require the attendance of any witnesses, let alone those who had not made statements in the matter. This is particularly so where the applicant did not seek orders compelling the attendance of those witnesses. In any event, the Deputy President did not make any findings based on the disciplinary records and explicitly stated, at [36], that she was "unable to make an assessment of the merits in the absence of tested evidence". Further, the applicant has not identified any practical injustice. Even if the applicant examined the creators of the disciplinary records, given the other factual matters relevant to the merits identified at [34]-[35] of the decision and the other criteria in s 394, it is highly unlikely the Deputy President would have arrived at a different conclusion. 81 The Deputy President assessed the merits of the application at [32]-[36] of the decision. In drawing a comparison with Miller v DPV Health Ltd [2019] FWC 3979, in which the applicant in that case had "at least an arguable case", the Deputy President was clearly expressing that the applicant had, on her preliminary review, at least an arguable case. The Deputy President therefore addressed the applicant's submissions, which are summarised at [34] of the decision. There was, therefore, no constructive failure to exercise jurisdiction.

[30]

Consideration 82 The applicant has not established any jurisdictional error. 83 The applicant's submission entirely ignores the nature of the application before the Deputy President. Although he purports to accept that "the Commission is not required to undertake a detailed examination of the substantial case in considering an extension of time application the merits of the matter were a relevant consideration under s 394(3)(e)", he nonetheless submitted that "a hearing was conducted so that matters involving contested facts could be resolved, including by providing sworn evidence and granting each party the opportunity to examine and cross-examine witnesses". That he chose to file extensive evidence does not alter the nature of the application for determination before the FWC. It did not oblige the respondent to produce evidence. Nor does it oblige the FWC to make findings on contested factual matters which relate to the substance of the claims. 84 Contrary to the applicant's submission, the respondent was not required to file evidence on the substantive issues and could rely on the material filed by him to submit that it had a meritorious case. It is a matter for a respondent what material they file in opposing the application. The reasoning of the Deputy President was plainly open and orthodox given the material before it, and the Full Bench concluded there was no error in the approach. The applicant has not established there is any jurisdictional error in the approach. There is no procedural unfairness in the Deputy President considering all the material before her. The Full Bench's reference at [41] that the "Commission has consistently held that evidence on the merits is rarely considered, let alone tested in applications of this kind", read in context, is not an error. Indeed, immediately following was "[t]here are sound reasons why the Commission should not embark on a detailed examination of the substantial case in considering an extension of time application". That is plainly correct. It does not reflect that this factor was not considered, as the Deputy President's reasons demonstrate; a finding was made that there were contested points. In reaching that conclusion, the Deputy President at [32]-[33] referred to Miller, citing and adopting a passage therefrom as applicable to this case. That passage includes that the applicant has at least an arguable case. That was held not to be an error. The applicant's submission that there was a constructive failure to exercise jurisdiction because the Deputy President did not make any further findings is plainly untenable. 85 This ground is not established.

[34]

Submissions 90 The applicant made submissions directed to the presiding member of the Full Bench denying his request to vary the orders to enable him to file longer written submissions and to provide an extended time limit to present oral argument at the hearing. He submitted that due to the extent of errors in the Single Member Decision and his limited experience in making oral submissions his request was reasonable. He submitted that the respondent was not directed to file submissions, although he recognised that he did not object to this. The respondent was allowed to be represented at the hearing, hand up case law and make oral submissions. The applicant contended that he did not have any prior notice of the submissions and could not adequately respond to the submissions. 91 The respondent submitted that despite the applicant's request to the FWC prior to the hearing, no request was made to extend the hearing by a week. On 23 December 2019, the presiding member rejected the request to vary the directions on the basis that the matter was listed for permission to appeal only. Despite the rejection, the applicant was provided an opportunity to adequately prepare and present his case. The applicant had already filed extensive material before the FWC regarding the application for an extension of time, including a detailed note attached to the application which was 14 pages in length, a written statement to the Deputy President with 23 attachments, totalling 91 pages, a further witness statement with 57 attachments, totalling 255 pages, an outline of written submissions 10 pages in length, and an outline of submissions in reply totalling 17 pages. Each of these documents were included in the Court Book before the Full Bench. The applicant filed written submissions in respect of the appeal, of 7 pages, and according to the transcript, the duration of the hearing was 1 hour and 39 minutes with the majority of that time being the applicant's submissions in chief and reply. The applicant's oral submissions spanned 32 of the total 38 pages of transcript. The respondent noted that the FWC's obligation is to conduct its proceedings in a manner which is not only fair and just, but is quick, informal and avoids unnecessary technicalities. The respondent submitted that applicant was on notice that the respondent would not be required to file a written outline of submissions and would be permitted to make oral submissions on the day of the hearing. The applicant did not request that written submissions be filed. The applicant has not identified any matter raised by the respondent in oral submissions to which he did not have a reasonable opportunity to respond. The requirement of procedural fairness is directed to avoiding practical injustice. The applicant does not, in his grounds of review or his submissions, identify any practical injustice resulting from the alleged denial of procedural fairness. 92 In reply the applicant submitted that the practical injustice caused can be ascertained by comparing the submissions made by the applicant to the Full Bench and the submissions made to this Court. If the applicant had been allowed the requested amendments to the directions, he would have been able to present a much better case to the Full Bench.

[35]

Consideration 93 As observed in NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [51]: Ordinarily a self-represented litigant must be given a reasonable opportunity to present evidence and make submissions in support of his or her case: Chetcuti v Minister for Immigration and Border Protection (2019) 270 FCR 335, 356 [106]. As observed by Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 86 [99], "[t]he basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her". See also Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 [51]-[57]. 94 In Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 147 ACSR 227 (Flightdeck) it was observed at [58]-[59]: [58] A denial of procedural fairness must work a practical injustice on the appellant in order for the Court to exercise its discretion to grant relief: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 14 [38] per Gleeson CJ. An appellant alleging a denial of procedural fairness need only demonstrate that they were deprived of the possibility of a successful outcome; to negate that possibility it is necessary to find that a properly conducted trial could not possibly have produced a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141, 147. To put it another way, as framed by the Full Court in King v Delta Metallics Pty Ltd [2013] FCAFC 93 [59], "[i]f the denial of procedural fairness would have made no difference to the outcome of the proceeding, relief will not be granted": see also Nobarani, 248 [39]; Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530, 544 [49]. [59] Depending on the circumstances of the case, the onus may be on the appellant to demonstrate what they would have done, or what evidence they would have led, so as to establish they were in fact denied procedural fairness. 95 The extent of the Court's obligation to assist an unrepresented litigant is factually idiosyncratic and significantly, depends upon "the litigant, the nature of the case, and the litigant's intelligence and understanding of the case": Flightdeck at [57]. 96 The applicant has not established that he was denied procedural fairness. It is plain from the material, as described above by the respondent, that the applicant had ample opportunity to present his argument to the Full Bench. I note also the applicant's written submission filed before the Full Court was not limited to 3 pages, and that the transcript of the hearing reflects the applicant was not limited by time. This is also in a context where the detailed material relied on by him before the Deputy President, was before the Full Bench. 97 The transcript of the hearing also reflects that the applicant did not object to the respondent being represented. The applicant did not submit, or in any way suggest to the Full Bench that he was prejudiced by that course. The applicant made submissions in reply to those of the respondent. He did not suggest he was not in a position to do so, and nor did he suggest he needed additional time or opportunity to address the matters raised by the respondent. 98 The applicant has not identified any matter which he did not put that he wanted to or, in relation to the respondent's submission, did not respond to. Indeed, the applicant has not identified any practical injustice. 99 The only submission the applicant advanced in that regard is in his written submission in reply when he suggested that a comparison between the submissions to the Full Bench and this Court shows such injustice. The submission is entirely misplaced. The issues for consideration in each hearing were different. The applicant's written submission in this Court dealt extensively with issues of judicial review. Importantly, the submissions filed in this Court by the applicant were in breach of the orders made as to the length of the submission. He filed the extended submissions without seeking leave to do so given the breach, but rather unilaterally considered that he required the document to be longer than permitted. Leaving aside that is not an acceptable basis to do so, what the applicant considers is necessary to advance his case does not necessarily equate with what is actually necessary or appropriate. The nature of this matter did not require submissions of that length. It follows the comparison between the submissions is inapt. 100 As the Full Bench observed at [27] in relation to complexity of this matter, which underpins this submission: [27] In regard to the alleged complexity of the application, the Deputy President did not find the application as filed was in any way complex. Mr Ittyerah points to the detailed materials placed before the Commission and his 13-page summary of facts. The volume of material filed is not a substitute for complexity of a matter and this appeal ground does not identify any issues of complexity, other than he needed to navigate through numerous documents.

Ittyerah v Coles Supermarkets

At a glance

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Judgment (36 paragraphs)

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Legislation Cited (4)

Cases Cited (53)

Cited By (3)