Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2020] FWC 3885 of Deputy President Boyce at Sydney on 28 July 2020 in matter number C2020/972. Section 365 application, extension of time refused to file application. Permission to appeal refused.

[1] Mr John Mamur (the Appellant) has lodged an appeal, for which permission to appeal is required under s 604 of the Fair Work Act 2009 (Cth) (the Act), against a Decision[1] and order[2] of Deputy President Boyce issued on 28 July 2020. In the Decision, the Deputy President declined to extend time for lodgement of a general protections dismissal application (Application) made by the Appellant pursuant to s 365 of the Act. The respondent in this matter is Coles Group Supply Chain Pty Ltd (the Respondent).

[2] Section 366(1) requires an application to be made within 21 days after the dismissal (which, in this case, was an alleged constructive dismissal) took effect or within such further period as the Commission allows under s 366(2) of the Act. Given the effective date of the alleged constructive dismissal was 13 January 2020, the latest date by which the Appellant could have lodged his Application within time was 3 February 2020. In lodging the application on 18 February 2020, the Appellant's Application was 15 days late. It was therefore necessary for the Appellant to obtain an extension of time under s 366(2) of the Act in order to progress his Application to the s 368 conference phase.

[3] This matter was listed for hearing in respect of permission to appeal only. On 19 August 2020, the Chambers of the presiding member, Vice President Catanzariti, noted that if the parties after receiving submissions would prefer to have the matter determined on the papers (pursuant to s 607(1) of the Act), they could advise the Full Bench. Both parties confirmed they were content with a determination on the papers.

[4] The Appellant also requested that the Full Bench grant leave to file further evidence. On 31 August 2020, the Chambers of Vice President Catanzariti sent correspondence to the parties noting that, in the event that permission to appeal was granted, the Appellant then would have an opportunity to seek leave to file further evidence.

Legislative provisions and permission to appeal principles

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

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

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

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

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

[6] The test of "exceptional circumstances" establishes a "high hurdle" for an application for an extension.[3] A decision as to whether to extend time under s 366(2) involves the exercise of discretion.[4]

[7] The meaning of "exceptional circumstances" in s 366(2) was considered by a Full Bench of the then-named Fair Work Australia in Nulty v Blue Star Group Pty Ltd[5] (Nulty) as follows:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance."

[8] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are exercisable only if there is error on the part of the primary decision maker.[6] There is no right to appeal and an appeal may be made only with the permission of the Commission.

[9] Section 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[8] In GlaxoSmithKline a Full Bench of the Commission identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises 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."[9]

[10] 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.[10] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[11] In the Decision, the Deputy President considered each of the matters he was required to take into account under s 366(2) of the Act and concluded that there were no exceptional circumstances such as to warrant an extension of time.

[12] In respect of s 366(2)(a) of the Act, the Deputy President concluded that the Appellant's reason for delay weighed against any finding as to exceptional circumstances. The Deputy President addressed the reason for delay at paragraphs including [22], [26] and [27] (the second reason to which reference is made in the quote below was, as noted in the Decision at [28], withdrawn in the hearing):

"[22] The Applicant submits that there were two reasons for the delay (in summary):

(a) the Applicant was unable to lodge his application on time because the Respondent wanted to investigate reasons prompting his dismissal, and so the Applicant had to wait to attend the scheduled meeting (which delayed the submission of his General Protections Application) (Meeting Reason) ..."

[26] In general, there is nothing "exceptional" about an employer seeking to investigate allegations of bullying and victimisation made by an employee as part of their resignation letter, post the cessation of the employment relationship between the parties. If anything, it is a commendable action to take, and demonstrates a desire by a Respondent to deal with and resolve such matters, if they did occur, in the workplace going forward. Having particular regard to this case, the Respondent had clearly communicated its position regarding its acceptance of the Applicant's resignation, and the purpose of the post-resignation investigation. Nothing the Respondent did could be seen to have mislead [sic] the Applicant into believing that that investigation had suspended the Applicant's resignation (or dismissal) or otherwise cast doubt as to the date of the employment relationship coming to an end (i.e. on 13 January 2020). That the Applicant took an erroneous view as to the Respondent's position on the cessation of the his [sic] employment is not an exceptional circumstance. It is nothing more than an ordinary mistake made by an employee.

[27] Significantly, the Applicant had sufficient time to prepare and file his Application prior to or following the meeting on 3 February 2020. The simple fact is that the timing and occurrence of that meeting does not lean toward a finding of exceptional circumstances vis-à-vis the period and reason for the delay post that meeting."

[13] In respect of action taken by the Appellant to dispute the dismissal, the Deputy President made the following observations in relation to s 366(2)(b)-related considerations:

"[33] Again, I am minded to agree with the Respondent's submissions in this regard. The wording of s.366(b) [sic] is clear - regard must be had to the actions of the employee in disputing his dismissal. In this instance, the post-resignation investigation was initiated and carried out by the Respondent. It was not carried out at the behest of the Applicant. The Applicant did little more than attend his former workplace and provide information in order to assist the Respondent's inquiry as to alleged bullying and victimisation. The Applicant's participation in that meeting (or investigation) was not action that disputed his dismissal; it was an opportunity to provide the Respondent with information that had led to his resignation. In other words, the Applicant's actions regarding the investigation did not, on the evidence, give rise to what might be said to the Applicant disputing his dismissal.

[34] Further, having regard to the email communications between the Applicant and [the Respondent's People and Culture Manager], and the unchallenged evidence of [the Respondent's Distribution Centre Manager], the Applicant could be under no misapprehension as to the Respondent's position regarding the investigation. In view of the facts before more, I am not satisfied that the circumstances as considered under s.366(b) [sic] of the Act lean towards a finding of exceptional circumstances."

[14] In respect of the other matters specified in s 366(2)(c)-(e) of the Act, the Deputy President dealt with them as follows:

• neither party made submissions or provided evidence that the Respondent was prejudiced by the delay and therefore this criterion was of neutral consideration (s 366(2)(c))[11];

• notwithstanding submissions made by the Respondent in respect of whether the Appellant was "dismissed" within the meaning of s 386 of the Act, no findings were made and therefore this was a neutral consideration in the matter (s 366(2)(d))[12]; and

• neither party identified a person who might be said to be in a similar position to the Appellant and therefore this criterion was of a neutral consideration in the matter (s 366(2)(e))[13].

[15] Therefore, in consideration of such findings, the Deputy President dismissed the Appellant's Application and made an order to that effect.

[16] As the matter before us concerns only permission to appeal, we will be determining solely that question notwithstanding the fact that the Appellant's submissions addressed a range of other substantive-type matters.

[17] We understand the Appellant's ground of appeal to be that the Deputy President made significant errors of fact which misguided the ultimate Decision; this matter was elaborated in the Appellant's written submissions together with some other matters. We understand that the matters said to enliven the public interest to grant permission for the appeal were:

• allowing the Decision to stand would be in direct conflict with the Commission's principle of impartiality, as it is unjust. Additionally, the failure to rectify such errors will erode the public's confidence in the Commission administering equitable justice. The Decision was unjust because the Deputy President did not consider the fact that the Appellant did not have the benefit of legal advice;

• the case represents an opportunity to modify or repeal s 366 of the Act in its entirety, as this section gives members of "the high social class" an unfair advantage over "the low class" because they can afford legal representation; and

• the Deputy President made significant errors of fact, including in his inference in respect of the "Meeting Reason".

[18] In broad summary, the Respondent disputes the contention that there is an arguable error of fact or law in the Decision and submits that none of the purported errors gives rise to a manifest injustice in the requisite sense.

[19] First, we do not accept the proposition that the Decision manifests an injustice. There is nothing in the Decision to indicate that the Appellant raised a lack of knowledge of time limits for lodgement of the Application before the Deputy President in explanation of the delay, albeit that is a matter canvassed directly or indirectly in the submissions before us - more specifically in the context of his lack of legal representation. In any event, as noted in Nulty, mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance. Here, the Appellant's submissions before us included the submission that "The delay in submission [of the Application] was not due to ignorance" and the reason for the delay in connection with the permission to appeal submissions seemed more particularly to turn on questions of access to legal advice. The Deputy President had due regard to each of the requirements set out in s 366(2) of the Act and dealt with them in an orthodox way. The Deputy President also had regard to the relevant evidence before him in considering whether there were exceptional circumstances.

[20] Second, the Appellant's submission that the matter represents an opportunity to modify or repeal s 366 of the Act to assist self-represented litigants is, respectfully, misconceived. We need take the Appellant's submission no further than to note that the Commission is not empowered to modify or repeal sections of the Act.

[21] Third, we do not consider in the context of what has been advanced by the Appellant in relation to permission to appeal that there is an arguable appellate case the Decision contained significant errors of fact, more particularly when the appeal ground specifically contended that the Deputy President " ... made a significant error of facts [sic] which misguided the ultimate decision" . The Appellant's submissions elaborate upon certain matters which had already been considered in the decision at first instance. The Appellant, for instance, disagrees with the Deputy President's inference in regards to the purpose of a meeting scheduled on 3 February 2020, but disagreement by an appellant with inferences drawn does not amount to the establishment of significant error of fact such as to lead to the grant of permission to appeal.

[22] Moreover, to the extent that the Appellant contends that the public interest is enlivened because the Respondent did not suffer prejudice from the delay in the Application being filed, we would observe that the Deputy President dealt with this issue at [35] in the Decision. In any event, this criterion was viewed as a neutral consideration in the circumstances and nothing turns on it.

[23] Finally, the public interest is not enlivened where an Appellant expresses a preference for a different result. That the Deputy President took a different view to the Appellant on the significance of the meeting on 3 February 2020 is not a factor that enlivens the public interest; and nor are the other factors upon which the Appellant relied.

[24] Having considered all the matters raised by the Appellant with respect to permission to appeal, we are not persuaded that the public interest is enlivened. More specifically, we are not satisfied that:

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

• the appeal raises issues of importance and/or general application;

• the decision at first instance manifests an injustice, or the result is counter intuitive; or

• the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.

[25] For the reasons set out above, we are not satisfied that the Appellant has established that there is an arguable case of error in relation to any relevant aspect of the Decision or that the conclusion reached by the Deputy President was attended with sufficient doubt to warrant its reconsideration in an appeal.

[26] Accordingly, permission to appeal is refused.

Appellant's written submissions dated 27 August 2020.

Respondent's written submissions dated 1 September 2020.

[1] John Mamur v Coles Group Supply Chain Pty Ltd [2020] FWC 3885 (the Decision).

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace

Relations [2014] FWCFB 2288 at [21].

[4] Halls v McCardle and Ors [2014] FCCA 316.

[5] [2011] FWAFB 975.

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

[7] O'Sullivan v Farrer and another [1989] HCA 61; (1989) 168 CLR 210 at [216]- [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 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; (2011) 192 FCR 78; (2011) 207 IR 177 at [44]- [46].

[8] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

[9] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [27]; [2010] FWAFB 5343; (2010) 197 IR 266.

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

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