Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against ex tempore decision of Deputy President Cross at Brisbane on 25 March 2021 in matter number U2021/930.

[1] Mr Jason Mooney has lodged an appeal, for which permission is required, against an ex tempore decision delivered by Deputy President Cross on 25 March 2021 by which he refused to grant Mr Mooney an extension of time under s 394(3) of the Fair Work Act 2009 (FW Act) to lodge an unfair dismissal remedy application. Mr Mooney was dismissed by his former employer, Mega Industries Pty Ltd (Mega) effective from 14 January 2021. Under s 394(2) of the FW Act, an unfair dismissal application 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 Mooney filed his application on 5 February 2021, 22 days after his dismissal took effect. Accordingly, it was necessary for him to obtain an extension of time to file his application pursuant to s 394(3), which provides:

(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] Mr Mooney's notice of appeal sets out the following appeal grounds:

"• Deputy President Cross gave no time consideration to the fact that the respondent [sic] had to move interstate with no notice provided

• No time consideration was considered to the fact that the respondent had to isolate for 10 days before crossing the border to the respondent's regular place of residence

• No time consideration was provided for the fact that the respondent was unable to seek any 3rd party guidance until the 1st of February, well over 2 weeks from the date of termination

• Whilst the respondent was aware of the 21 day timeline, application was submitted on Friday the 5th of February, after termination came into effect on Friday the 15th of January. This only left the respondent 4 days to seek 3rd party guidance and submit an application for unfair dismissal due to Covid restrictions by the QLD state government."

[3] We read references to the "respondent" in the above appeal grounds as referring to Mr Mooney. Mr Mooney also contends in his notice of appeal that it would be in the public interest to grant permission to appeal for the following reasons:

"• In the public interest this appeal should proceed as there was no just grounds for dismissal

• There has been no evidence to substantiate the claim of fraudulent behaviour in any way by the respondent

• Fraudulent behaviour needs to show an intent to gain, there was no intent to gain in any way on the alleged incident

• There was exceptional circumstances involved due to Covid border restrictions in place at the time."

[4] After Mr Mooney's appeal was filed, directions were made for him and Mega to file written submissions in relation to the appeal, and the matter was listed for hearing before us at 10.00am AEST on 4 May 2021. The notified mode of hearing was by video, using the Microsoft Teams platform. The notice of listing issued to the parties provided a number of alternative ways in which parties could attend the hearing: via computer or mobile app through a provided link, a video conferencing device and by telephone providing for audio-only participation. Mr Mooney failed to join the hearing by any of these methods before the listed commencement time.

[5] The Associate to the presiding member attempted to contact Mr Mooney on the telephone contact number he provided on a number of occasions, but Mr Mooney did not answer these calls. An email was sent to the contact email address he had provided advising him that if he did not make contact with the Commission, the hearing would proceed in his absence at 10.30am. Mr Mooney did not make contact, and accordingly the hearing proceeded in the presence of the representatives of Mega only. It was not necessary in the circumstances to receive any oral submissions from Mega, and we have determined the matter upon a consideration of Mr Mooney's notice of appeal and the respective written submissions filed by the parties.

[6] In his decision, the Deputy President began by stating that he did not accept that there were exceptional circumstances explaining why Mr Mooney was not able to file his application within the 21-day period, and found:

"He had clearly access to computers and even, on the respondent's submission, to computer cafes that were available in the location that he was in New South Wales. He also had access to his work computer for a period of I think three days after the termination date. I do not accept that in the geographical circumstance of the applicant that he was precluded from making appropriate enquiries progressing his application during the 21 day period.

As to the explanation for the period of the ... delay after the 21 day period, it simply belies calculation that the applicant could have found that 5 February 2021 was correct when applying the appropriate calculator. In those circumstances I am not satisfied the applicant has provided an acceptable explanation for the delay. That weighs against the applicant in this case."[1]

[7] The Deputy President observed that the other matters requiring consideration under s 394(3) had not been the subject of any direct submissions by the parties, and in particular that Mr Mooney had submitted nothing in relation to when he first became aware of the dismissal after it took effect and any action taken by him to dispute his dismissal. He accorded "the slightest weight" in favour of Mega in respect of the latter consideration.[2] In relation to the question of prejudice, the Deputy President said that the mere absence of prejudice was not necessarily a factor which weighed in favour of the applicant for an extension of time, that neither party had made a submission about this, and he did not accord any weight to this factor.[3] As to the merits of the application, in the absence of any significant submissions the Deputy President accepted that Mr Mooney had at least an arguable case but that "in the circumstances this matter weighs mutually between the parties".[4] As to fairness between the applicant and other persons in a similar position, the Deputy President again observed that there had been no submissions about this and he accorded no weight to this consideration.[5]

[8] The Deputy President then referred to the statutory purpose of the time limit in s 394(2)(a), and concluded:

"Weighing all of the matters that I must weigh and taking into account the practice set out in section 394(3) of the Act, I am not satisfied there are exceptional circumstances in this case warranting a consideration of the exercise of my discretion to allow [a further] period. As I have indicated, I consider that the primary factor, the subject of submissions being the reason for delay, weighed in favour of the respondent and there was also slight weight in favour of the respondent in relation to action taken by the applicant to dispute his dismissal.

In those circumstances, as I have indicated, I am not satisfied there are exceptional circumstances and therefore there is no basis on which I should consider whether I should exercise my discretion to extend the time allowed to make the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the applicant is dismissed."[6]

[9] In his written submissions, Mr Mooney advanced two propositions. The first was that he believed there may have been a mistake concerning the date of effect of the dismissal, in that the dismissal took effect from 15 January 2021 and therefore he had until 5 February 2021 to lodge his application.

[10] The second proposition was as follows:

"The Appellant requested extra time due to unforeseen circumstances. The Appellant was required to complete isolation due to the Coronavirus Pandemic and the Border restrictions imposed between the NSW and QLD border as directed at the time by the QLD government. This cost the Appellant significant time in developing the application due to the following reasons, the NSW / QLD border didn't open until the 1st of February 2021.

No access to a computer or internet services at the time of isolation to prepare the application documents required.

No access to external advice as unable to prepare the application until the Appellant crossed the QLD border to his normal place of residency in QLD. From that time the Appellant sought external advice to confirm there was a case for unfair dismissal. Once this was established all documentation was provided to the Fair Work Commission on the 5th of February, as soon as all documents were prepared.

The Appellant asks the Commission to provide permission to grant the appeal on the grounds of public interest due to the reduced timeframe to prepare for the original unfair dismissal application due to the Coronavirus pandemic and the border restrictions apposed.

The appellant also asks the Commission for permission to grant the appeal on the grounds of public interest as the appellant believes he has a strong case and it would be in the public interest that it be heard in front of the commission.

The appellant also asks the Commission to take into account the stress and time loss caused by the Respondent due to the fact that there was no notice period given upon dismissal as the appellant was then required to move interstate back to the usual place of residency from NSW to QLD. The appellant also lost the use of a motor vehicle as the motor vehicle used by the appellant was a company supplied vehicle. All of these factors caused a significant time constraint to the appellant for the unfair dismissal application."

[11] Mega submitted that:

• Mr Mooney had not demonstrated that it would be in the public interest to grant permission to appeal;

• he had not identified any error of fact, let alone a significant error of fact, in the Deputy President's decision;

• there was no doubt that the dismissal took effect on 14 January 2021, and Mr Mooney had provided no support for the proposition that it took effect on 15 January 2021;

• the Deputy President had dealt with all the matters in s 394(3), and Mr Mooney had not challenged any of the findings made pursuant to paragraphs (b)-(f) of the subsection; and

• Mr Mooney did not allege that the Deputy President's exercise of the discretion miscarried.

[12] 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.

[13] 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.

[14] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others,[8] Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as "a stringent one". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[9] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."[10]

[15] 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.[11] 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.[12]

[16] 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.[13] 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[14] - 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.

[17] The required approach to s 394(3) was summarised by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters.[15] Relevantly, the assessment of exceptional circumstances means that the Commission must take into account the matters set out at s 394(3)(a)-(f) and this requires that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. An overall assessment of all of the relevant circumstances and the matter is required.

[18] In this case, we are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that any reasonably arguable case has been advanced that the decision of the Deputy President was attended by appealable error. Mr Mooney's first proposition that his dismissal took effect on 15 January rather than 14 January 2021 is unsupportable. His unfair dismissal remedy application identified the date of effect of the dismissal as 14 January 2021, and it attached the letter of dismissal which also stated that the "effective termination date" was 14 January 2021.

[19] In his decision, the Deputy President clearly considered and weighed all of the matters he was required to take into account under s 394(3), and made his overall assessment on that basis. As Mega has submitted, no issue is taken by Mr Mooney with any of the findings made in respect of paragraphs (b)-(f) of s 394(3). With respect to paragraph (a), there is no contention of error as such, only a repetition of the factual contentions which were advanced at first instance. While it appears that it was not in dispute that the NSW-Queensland border was closed until 1 February 2021, meaning that Mr Mooney could not return to his residence in Queensland before then, the Deputy President took this into account but found that this did not mean that Mr Mooney was deprived of computer access such as to render him unable to make an online unfair dismissal application. Mr Mooney has advanced nothing to suggest that there was any error of fact in this finding beyond merely repeating the assertion that he had no access to computer or internet services at the unidentified "time of isolation". We note that Mr Mooney also contends that he had no access to "external advice" until he crossed the border to return to his normal residence, but he does not explain why this was the case, nor does he identify the external advice he says he obtained once he returned home or explain why he could not have lodged the application with the benefit of this advice on or before 4 February 2021. It is significant in this context that Mr Mooney concedes that he was aware of the 21-day time limit. We consider that there is simply no basis upon which it could be found that the Deputy President erred in his consideration under s 394(3)(a).

[20] Because Mr Mooney's application was filed only one day late, we have carefully considered whether there is any arguable case that the decision manifests an injustice and was plainly unreasonable such as to fall within the second limb of discretionary error in House v The King.[16] However, whatever sympathy one may have for Mr Mooney's position, the very limited material advanced by him at first instance and on appeal is simply incapable of surmounting the "high hurdle" of the exceptional circumstances requirement. No deprivation or significant impairment of his capacity to file an unfair dismissal application during the 21-day period has been demonstrated.

[21] We note that in that part of the decision set out in paragraph [8] above, the Deputy President referred to the reason for the delay as being the "primary factor". If this is read to mean that the consideration in paragraph (a) of s 394(3) is to be given primacy over the matters in paragraphs (b)-(f), that would be an error.[17] However, taken in context, we think that what the Deputy President meant to convey was that the reason for the delay was the "primary factor" that was the subject of the parties' submissions. This is consistent with the Deputy President's observations elsewhere that the other s 394(3) matters were not the subject of significant, or any, submission by the parties.

[22] Mr Mooney's contention that the grant of permission to appeal would be in the public interest because the claims of fraudulent behaviour which caused his dismissal have not been substantiated does not take the matter any further. For the purposes of s 394(3)(e), the Deputy President accepted that Mr Mooney had an arguable case of unfair dismissal on the merits, but clearly no final determination of whether there was a valid reason for Mr Mooney's dismissal was required under s 394(3), nor did the Deputy President have the material before him such as to permit any determination of this nature to be made.

[23] Finally, Mr Mooney's appeal does not raise any issue of law or principle that is of wider application such as to attract the public interest.

[24] Because we do not consider that it would be in the public interest to grant permission to appeal, s 400(1) requires that permission to appeal not be granted. Accordingly, permission to appeal is refused.

[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] [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]

[9] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]- [46]

[10] [2010] FWAFB 5343, 197 IR 266 at [27]

[11] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

[12] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

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

[14] [1936] HCA 40, 55 CLR 499 at 505

[15] [2018] FWCFB 901, 273 IR 156 at [10]- [19]

[16] [1936] HCA 40, 55 CLR 499 at 505

[17] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, 273 IR 156 at [38]- [41]

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