Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2021] FWC 1365 of Deputy President Dean at Sydney on 16 March 2021 in matter number U2021/302.

[1] Mr Ivan Cowen has lodged an appeal, for which permission to appeal is required, against a decision[1] made by Deputy President Dean on 16 March 2021 by which the Deputy President refused to extend time for Mr Cowen to lodge an application for an unfair dismissal remedy against Renascent Regional Pty Ltd (Renascent) on the basis that the requisite exceptional circumstances did not exist. Mr Cowen was employed by Renascent from about November 2015 until he was terminated on 3 December 2020 for alleged serious misconduct. Under s 394(2) of the Fair Work Act 2009 (FW Act), unfair dismissal applications must be filed within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 394(3). Mr Cowen filed his application on 11 January 2021, 39 days after his dismissal took effect. The application should have been lodged no later than 24 December 2020. Therefore, the application was made 18 days outside of the statutory time period.[2] Accordingly, it was necessary for Mr Cowen to obtain an extension of time to make his application pursuant to s 394(3), which provides as follows:

(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:

(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

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

[2] The background circumstances of the dismissal of Mr Cowen were as follows. Mr Close, Regional Branch Manager for Renascent, gave evidence that:

• performance and conduct issues were raised with Mr Cowen prior to 3 December 2020;

• a meeting was arranged with Mr Cowen on 3 December 2020, which Mr Archer and Mr Close attended;

• Mr Cowen was informed at the commencement of the meeting that there were concerns in relation to his performance;

• a number of performance and conduct issues were put to Mr Cowen for a response;

• at 4:30 pm the meeting concluded, and Mr Cowen was advised that he could go away and think about the matters raised and any responses;

• at approximately 5:00 - 5:30 pm, the meeting reconvened and Mr Cowen said words to the effect of, "I tend to disagree with the matters but I don't have anything further to add"; and

• Mr Cowen's employment was then terminated.

[3] Mr Cowen denies that the alleged problems with his performance were put to him prior to 3 December 2020. Mr Cowen agrees that he denied the allegations that were put to him at the meeting. However, Mr Cowen submits that not all of the allegations that were in the termination letter were put to him and that he was sent out of the room for 10 minutes to consider and prepare a response.

[4] The application for unfair dismissal remedy was lodged on 11 January 2021. Mr Cowen's application for an extension of time was listed for hearing on 15 March 2021. The parties filed submissions and witness statements in accordance with the directions set by the Deputy President. Mr Evans was given permission to appear for Mr Cowen, and Ms Lynch appeared with permission for Renascent.

Evidence before the Deputy President concerning the delay

[5] At the hearing on 15 March 2021, a witness statement of Mr Cowen dated 24 February 2021 was admitted into evidence without objection. The evidence of Mr Cowen given in that statement was, relevantly, that on 21 December 2020 (18 days after his dismissal took effect), he had a conference with his solicitor, Mr Evans, regarding making an unfair dismissal application. Mr Cowen's evidence is that during that conference, he recalls Mr Evans saying words to the effect of "I will lodge the application today as our offices are closing on 23 December and we re-open on 11 January". Mr Cowen stated that he provided his phone number and email address to Mr Evans and that he left the conference with the understanding that the application would be filed prior to his solicitor's office closing for the year. Mr Cowen went on to say that the following day (22 December 2020) he went to stay at a property that did not have mobile phone reception, and he did not receive any notification of missed calls or voicemail messages. He said that on 11 January 2021 he sent an email to Mr Evans, a copy of which was attached to his statement. The email relevantly stated: "Just wanting to confirm the application as discussed at the end of last year was submitted".

[6] Mr Cowen also provided a supplementary witness statement dated 10 March 2021 in which he stated that he recalled that he tried to call Mr Evans after 5:00 pm on 23 December 2020 but that the solicitor's office was closed, and the phone call went to an answering machine instead.

[7] Mr Cowen was not cross-examined at all on that aspect of his first witness statement describing his conference with Mr Evans on 21 December 2020. The extent of the cross-examination of Mr Cowen related to the extent of mobile phone coverage and connectivity at the property that he stayed at from 22 December to 24 December 2020.

[8] Mr Cowen's lawyer, Mr Evans, made a statement dated 24 February 2021 which was also admitted into evidence without objection. He was not cross-examined on that statement. The statement included the following evidence:

• he had a conference with Mr Cowen on 22 December 2020;

• at the conference, he recorded Mr Cowen's email address, which was "trxer@hotmail.com";

• he recalled saying to Mr Cowen at the conference words to the effect of "our offices close after 23 December for Christmas and we re-open on 11 January";

• Mr Cowen's secretary wrongly recorded Mr Cowen's email address on the file and the practice management system as "tvxer@hotmail.com";

• later on 22 December he sent an email to Mr Cowen at the address "tvxer@hotmail.com" but did not receive a reply or a "bounce back";

• he tried later on the same day to telephone Mr Cowen at least twice, without success; and

• on 23 December, he tried to call Mr Cowen again without success, and sent a further email to the address "tvxer@hotmail.com" and again did not receive a reply or "bounce back".

[9] The emails are attached to the statement of Mr Evans. The text of the 22 December email is as follows:

Please see attached our draft application. Can you please have a read through and make sure you are happy with it and add any requested details.

If you have any questions please don't hesitate to let me know.

[10] The text of the 23 December email is as follows:

I refer to the below email and I've also called you a couple of times and left messages.

This needs to be filed tomorrow to be filed on time. I am not in the office but should be able to get it done if you can confirm your instructions by email. If you've decided not to go ahead that's fine too, just let me know.

[11] On 11 January 2021, the day that the solicitor's office reopened after the Christmas break, Mr Evans received the email from Mr Cowen referred to in Mr Cowen's first statement. It was at that stage that Mr Evans said that he realised there was a typographical error in the email address he had been sending correspondence to. As earlier stated, the unfair dismissal application was lodged (by Mr Evans) the same day.

[12] There was also a statement made by Mr Bryan, the Chief Executive Officer of the Renascent Group of Companies, accepted into evidence. Mr Bryan's evidence was to the effect that the property in Errowanbang that Mr Cowen was at from 22 to 24 December 2020 has access to 3G mobile phone coverage.

[13] In the decision under appeal, the Deputy President dealt with each of the matters required to be taken into account under s 394(3). In respect of s 394(3)(a), the reason for the delay, the Deputy President set out the submissions and factual assertions of the parties and then made the following determination:

"[21] I do not consider the factual circumstances in this case are what might be described as representative error. While the Applicant's email address had been incorrectly transcribed by Mr Evans' secretary, I am not satisfied that this is a case where clear instructions for the lodging of the application had been given to Mr Evans and he failed to do so. It seems clear Mr Evans was under the impression that that Applicant needed to confirm his instructions by way of approving the draft application before it was to be filed. He followed up with the Applicant by phone and email, albeit to the incorrect email address.

[22] Having considered the material before me, I am not satisfied, on balance, that the reasons provided by the Applicant constitute an acceptable reason for the delay. It is not in dispute that the Applicant knew he would be out of mobile phone range from the day after he met with Mr Evans. I accept that Mr Evans told the Applicant that his office would be closed after 23 December until 11 January 2021. The Applicant ought to have either advised Mr Evans he would be uncontactable after their meeting, knowing that was the case, or have ensured he was contactable.

[23] I consider this factor to be finely balanced and does not weigh in favour of or against a conclusion that there are exceptional circumstances."

[14] In relation to s 394(3)(b), the Deputy President found that Mr Cowen was notified of his dismissal on 3 December 2020, and therefore had the full period of 21 days to lodge the application and this weighed against a finding of exceptional circumstances.

[15] In relation to s 394(3)(c), the Deputy President found that there was no action to dispute the dismissal other than the making of the application for an unfair dismissal remedy.

[16] In relation to s 394(3)(d), prejudice to the employer, the Deputy President did not accept that there was any prejudice that would accrue to the Respondent if an extension of time was granted, but that this was not a factor that weighed in favour of a grant of extension of time.

[17] In relation to s 394(3)(e), the merits of the application, the Deputy President noted that the merits of the application turned on contested facts and it was not possible to make a firm or detailed assessment in the absence of tested evidence. In the circumstances, the Deputy President found the merits to be a neutral consideration.

[18] As to s 394(3)(f), fairness as between the person and other persons in a similar position, the Deputy President found this to be a neutral consideration.

[19] The Deputy President's overall conclusion was as follows:

"[31] I have had regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant. On balance, I am not persuaded that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. Accordingly, the application for an unfair dismissal remedy is dismissed."

[20] Mr Cowen's appeal grounds and submissions advance in summary the following propositions:

• the Deputy President erred in failing to take into account that Mr Cowen understood that his representative would file the application in time;

• this fact, along with the draft application being sent to the wrong email address, Mr Cowen being out of mobile range, and the solicitor's offices being closed until 11 January 2021 combined together resulted in an exceptional circumstance of the type contemplated in s 394(3);

• this was the "thrust" of his argument, but the Deputy President did not in her reasons deal with that submission;

• the Deputy President erred in limiting her consideration to whether the delay could be attributed to representative error, when this was not the case advanced by Mr Cowen;

• the Deputy President failed to take into account material considerations in that Mr Cowen understood his application would be filed in time by his representative, and Mr Cowen and his solicitor had differing perceptions as to whether Mr Cowen's application was to be filed prior to the solicitor's office closing for the Christmas break;

• further, the failure to consider Mr Cowen's substantial argument meant that Mr Cowen was denied procedural fairness constituting jurisdictional error;

• the Deputy President erroneously applied s 394(3)(c) of the FW Act by finding that no action had been taken by Mr Cowen to contest the dismissal;

• in finding that no such action had been taken, the Deputy President fell into error of the kind identified in House v The King[3] by failing to take into account that Mr Cowen had sought legal advice about the dismissal and instructed a solicitor to prepare an application for unfair dismissal remedy;

• the Deputy President erred in construing and applying s 394(3)(e) by failing to assess the merits of the application or otherwise deal with Mr Cowen's submissions that the application was arguable; and

• Mr Cowen submitted that his evidence was to the effect that he denied the performance allegations and that he was not afforded procedural fairness, which demonstrated that he had an arguable case, and this should have been taken into account as a matter supporting a finding of exceptional circumstances, not a neutral consideration.

[21] Renascent submitted that:

• in respect to the first appeal ground, this cannot be sustained as the Deputy President went to great lengths to explain her understanding of both the factual circumstances and the submissions made by Mr Cowen in respect of the multitude of factors that ultimately led to the "exceptional circumstance".

• having considered these facts, the Deputy President concluded that there was not an acceptable reason for the delay;

• at its highest it could be said that the Deputy President took into account an argument not advanced by Mr Cowen at first instance;

• even if this is the case, such a consideration was only a small part of a much wider set of considerations and was not so significant to give rise to an error of the type in House v The King;[4]

• in respect to the second appeal ground, the approach taken by the Deputy President was orthodox and uncontroversial, and was consistent with the decision in Brodie-Hanns v MTV Publishing Ltd[5] where it was found the relevant consideration was in respect of any action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, that might favour granting an extension of time; and

• in respect to the third appeal ground, the Deputy President was not obliged to consider this factor weighed in favour of an extension of time being granted, and her approach was consistent with the observations of the Full Bench in Kyvelos v Champion Socks Pty Ltd.[6]

[22] 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.[7] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[23] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[24] The test of "exceptional circumstances", in relation to extensions of time to lodge applications under s 394(3), establishes a "high hurdle" for an application for an extension, and a decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion.[8] Therefore it will be necessary, in an application for permission to appeal against a decision made under s 394(3), 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[9] - 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. Additionally, where an error of fact is alleged, s 400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s 400(1) remains.

[25] In this case, we are satisfied that the Deputy President's decision was attended by significant errors of fact and/or a failure to take into account relevant matters in two respects.

[26] First, in relation to s 394(3)(a), the reason for the delay, the Deputy President found that she was not satisfied there were clear instructions given to Mr Evans, Mr Cowen's solicitor, to lodge the application and that he failed to do so. The evidence before the Deputy President does not support this finding. The unchallenged evidence of Mr Cowen was that he met with his solicitor and was told that the application would be lodged on the day of the meeting. The evidence is that the meeting was either on 21 or 22 December 2020, both dates preceding 24 December 2020, the latest date the application could be filed to meet the statutory deadline.

[27] The Deputy President's finding that there were no clear instructions for lodgement given, when considering if there was representative error, seems to be grounded in the finding that "Mr Evans was under the impression that that Applicant needed to confirm his instructions by way of approving the draft application before it was to be filed. He followed up with the Applicant by phone and email, albeit to the incorrect email address."[10] However, Mr Evans did not give any evidence to that effect. Although his recollection was more limited about what occurred at the meeting with Mr Cowen, he did not contradict or deny Mr Cowen's evidence that he told Mr Cowen an application would be lodged the same day.

[28] The emails sent by Mr Evans to Mr Cowen's incorrect email address do not support the Deputy President's finding. Those emails show that the solicitor had proceeded to draft an application (suggesting that he had been instructed to do so) and asked Mr Cowen check it. The second email, a follow up to the first email which was not responded to, asked Mr Cowen to "confirm his instructions" and stated "if you've decided not to go ahead that's fine too...", might be taken as an indicator that Mr Evans considered at the time he sent the emails that his instructions needed to be confirmed. However, they do not contradict Mr Cowen's evidence that, at his meeting with Mr Evans, he was unequivocally told that his application would be filed the same day. Nor do they constitute evidence that Mr Evans told Mr Cowen at the meeting that his instructions and/or any draft application would require subsequent confirmation by email. Mr Evans never gave any evidence to that effect.

[29] Once the evidence in this respect is understood, the criticism made by the Deputy President that Mr Cowen should have advised Mr Evans that he would be uncontactable after their meeting, or should have ensured he was contactable, must fall away. There was no reason for Mr Cowen to do either of these things because he was led to believe his application would be filed within time and was not told that any further action on his part would be required.

[30] In short, the Deputy President did not take into account the clear and unchallenged evidence of Mr Cowen in reaching her determination, and her failure to do so resulted in a significant error of fact.

[31] Second, in relation to s 394(3)(c), we consider that the Deputy President erred in finding that Mr Cowen had not taken action to dispute the dismissal, other than lodging the application. As discussed, the effect of the unchallenged evidence of Mr Cowen and Mr Evans was that, either on 21 or 22 December 2020, within the 21-day period, he saw a solicitor to seek legal advice about the dismissal and to instruct him to file an application for an unfair dismissal remedy. On any view, that constituted action taken to dispute his dismissal independent of the later out-of-time filing of his application. This is an error of the kind identified in House v The King[11] in that the Deputy President failed to take into account a relevant consideration and consequently made a significant error of fact.

[32] The errors we have identified caused the discretion to miscarry. The Deputy President's erroneous finding that clear instructions had not been given for the lodgement of the application was foundational to her findings that there was no representative error, that there was not an acceptable reason for the delay, and that s 394(3)(a) was a neutral consideration. The erroneous finding pursuant to s 394(3)(c) that there was no action taken to dispute the dismissal prior to lodging the application was foundational to the Deputy President's conclusion that this was a factor that weighed against a finding of exceptional circumstances. These two factors constituted a significant component of the overall consideration of the Deputy President which persuaded her to find that there were no exceptional circumstances.

[33] As a result of this miscarriage of the discretion, we are satisfied that the decision manifests an injustice to Mr Cowen and accordingly that it would be in the public interest to grant permission to appeal. The appeal should be upheld and the decision of the Deputy President quashed. In light of this conclusion, it is unnecessary for us to deal with Mr Cowen's contentions that there was a denial of procedural fairness or that the merits of his application had not been properly taken into account.

Re-determination of the application for an extension of time

[34] We consider the convenient course is for us to re-determine Mr Cowen's application for an extension of time to lodge his unfair dismissal application under s 394(3) of the FW Act based on the material that was before the Deputy President. We will consider each of the matters required to be taken into account under s 394(3) in turn.

[35] The uncontested evidence is that Mr Cowen met with his solicitor on either 21 or 22 December 2020 and was told by his solicitor words to the effect of "I will lodge the application today as our offices are closing on 23 December and we re-open on 11 January". Having been so informed, Mr Cowen left the meeting with an understanding that the application would be filed prior to the solicitor's office closing for the year on 23 December 2020. However, the solicitor failed to lodge the application. Instead, the solicitor attempted to email Mr Cowen on 22 and 23 December 2020 to make sure he was happy with the application and to get "the ok". There is no evidence that he had previously told Mr Cowen that he would do this. Not having heard from Mr Cowen, the second email sought that Mr Cowen confirm his instructions.

[36] Mr Cowen never received either email because the solicitor's office had made a typographical error in Mr Cowen's email address. Mr Cowen followed up with the solicitor on 23 December after 5:00 pm but accessed only the answering machine. Mr Cowen then followed up again with the solicitor at 8:55 am on the morning of 11 January 2021, the first day the solicitor's office reopened after the Christmas break, to check if his application had been lodged. The error having been realised, the application was lodged that very day.

[37] Having regard to the factual circumstances, we are of the view that this is a clear case of representative error. Mr Cowen was told by his solicitor that an application would be filed on 21 or 22 December 2020, but his solicitor failed to do so. It may be that the solicitor subsequently considered that he needed confirmation of his instructions, but that is beside the point. No criticism can be made of Mr Cowen travelling to a location lacking in mobile phone coverage the day after the conference since he was entitled to make the assumption that his solicitor had already filed his application. Nevertheless, Mr Cowen followed up with his solicitor on 23 December 2020 and again on 11 January 2021, the next opportunity to do so after the period of the Christmas closedown.

[38] In the circumstances, we are satisfied that Mr Cowen provided an acceptable explanation for the delay. This is a matter that weighs significantly in favour of Mr Cowen in this case.

Whether the person first became aware of the dismissal after it had taken effect - s 394(3)(b)

[39] We agree with the Deputy President's finding that Mr Cowen was aware of his dismissal on the day it took effect. This does not weigh in favour of an extension of time.

Action taken to dispute the dismissal - s 394(3)(c)

[40] For the reasons set out earlier, we are satisfied that Mr Cowen took action to dispute the dismissal by seeking legal advice and instructing that an application for unfair dismissal remedy be made within the 21-day period. In the circumstances, this is a matter that weighs significantly in favour of Mr Cowen.

[41] There is no evidence of prejudice to the employer. Renascent submitted in the proceedings before the Deputy President that in the circumstances this is a neutral consideration. We agree that this is a neutral consideration.

[42] In cases such as this where there is not a full examination of the substantial merits, it is appropriate to make an assessment of the case based on the limited material available through the prism of viewing Mr Cowen's case at its most favourable.

[43] In this matter, Mr Cowen was dismissed for alleged serious misconduct. Mr Cowen denies the various allegations made and submits that there were procedural flaws in effecting the dismissal. Whether or not the dismissal was unfair will depend on the resolution of contested facts. Among those contested facts are allegations of serious misconduct and disputes about the process of dismissal. If those contested facts resolve in favour of Mr Cowen, there may be an arguable case that the dismissal was unfair.

[44] In the circumstances, on a preliminary assessment, Mr Cowen's claim is not without merit. That is not to suggest that it will succeed, but there is at least some merit which would give Mr Cowen a justifiable reason to pursue his claim. In the circumstances, that is a matter that weighs slightly in favour of Mr Cowen.

Fairness as between the person and other persons in a similar position - s 394(3)(f)

[45] Mr Cowen made no submissions on this point. Renascent submitted that there are no other persons in a similar position to Mr Cowen and therefore this criterion is not relevant. As neither party brought to our attention any relevant matter concerning this consideration, and we are unaware of any relevant matter, we consider this to be a neutral consideration.

[46] As we have indicated, the consideration of the reason for delay, the action taken to dispute the dismissal and the merits of the application weigh in favour of a finding of exceptional circumstances. Mr Cowen first became aware of the dismissal on the day it took effect, and this does not weigh in Mr Cowen's favour. The other two factors are neutral considerations.

[47] Weighing all the matters that we must and taking into account all of the matters in s 394(3) of the FW Act, we are satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of the discretion to allow a further period.

[48] As to whether to exercise the discretion, we consider that in all the circumstances it is appropriate to do so, and we see no reason not to exercise the discretion. Mr Cowen took all reasonable steps to file an application within the 21-day period and, for reasons beyond his control, this did not occur. We therefore propose to allow a further period within which the application may be made. That further period is extended to 11 January 2021.

[49] We order as follows:

• (1) Permission to appeal is granted.

• (2) The appeal is upheld.

• (3) The decision of Deputy President Dean ( [2021] FWC 1365) and order (PR727743) of 16 March 2021 are quashed.

• (4) An extension of time for the lodgement of Mr Cowen's unfair dismissal application until 11 January 2021 in matter U2021/302 is granted.

• (5) The matter is remitted to Deputy President Dean for further programming.

[1] [2021] FWC 1365

[2] We note that the decision indicates that the application was filed 8 days outside the 21-day period, however this is clearly an error.

[3] [1936] HCA 40, 55 CLR 499

[5] [1995] IRCA 601, 67 IR 298 at 299‒300

[6] [2000] AIRC 540, Print T2421 (10 November 2000) at [14]

[7] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ

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

[9] [1936] HCA 40, 55 CLR 499 at 505

[10] [2021] FWC 1365 at [21]

[11] [1936] HCA 40, 55 CLR 499

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