Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2017] FWC 1905 of Commissioner Ryan at Melbourne on 23 June 2017 in matter number C2016/6478.

[1] Mr Leigh Foyster has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Ryan issued on 23 June 2017[1] (Decision) in which the Commissioner declined under s.366(2) of the Fair Work Act 2009 (FW Act) to extend time to Mr Foyster to file a general protections dismissal application under s.365 of the FW Act. The application concerned Mr Foyster's dismissal from his employment with Bunnings Group Limited (Bunnings).

[2] Section 366(1) establishes a time limitation for the lodgment of a general protections dismissal application in the following terms:

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

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

(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."

[3] Mr Foyster filed his general protections dismissal application on 31 October 2016. In his application, Mr Foyster contended that although he was dismissed by way of a letter from Bunnings dated 2 September 2016, the dismissal only took effect from 10 October 2016 when, after having been overseas until 5 October 2016, he actually became aware of and read the letter. In the alternative, he sought an extension of time under s.366(2). Bunnings' position was that the date that Mr Foyster's dismissal took effect was either 13 September 2016, being the date that Bunnings sent an email to Mr Foyster attaching a copy of the 2 September letter, or 24 September 2016, being the date that Mr Foyster conceded he had checked his emails whilst overseas and replied to an earlier email from Bunnings, or 27 September 2016, when a further email was sent to Mr Foyster by Bunnings attaching the 2 September letter, or such other date by which Mr Foyster should have had a reasonable opportunity to be aware of his dismissal. Bunnings opposed the grant of an extension of time.

[4] In the Decision, the Commissioner, although accepting that the first time Mr Foyster actually knew he had been dismissed was 10 October 2016, when he first opened and read the letter of 2 September 2016, characterised the issue for determination as being when Mr Foyster had a reasonable opportunity of knowing the contents of the dismissal letter which had been emailed to him. For the purposes of s.366(1) of the FW Act, the Commissioner said that the answer to that question would determine the date upon which the dismissal took effect.[2]

[5] The Commissioner concluded that it was reasonable to accept that Mr Foyster had the ability to access his email account following his return from overseas on the dates 6, 7, 8 and 9 October 2016 and therefore had a reasonable opportunity of knowing that he had been dismissed from at least 6 October 2016.[3] Mr Foyster's application was therefore lodged beyond the 21-day time limit prescribed by s.366(1)(a)[4] (by four days). Having concluded thus, the Commissioner considered whether there were exceptional circumstances which would warrant the grant of an extension of time, taking into account the factors at s.366(2)(a)-(d)[5] of the FW Act.

[6] In respect of s.366(2)(a), the Commissioner found that there was nothing in Mr Foyster's explanation for the reasons for the delay which was exceptional or out of the ordinary - he simply did not check his emails when he could have.[6] The Commissioner found s.366(2)(b) to weigh in Mr Foyster's favour, in that it appeared from the evidence that Mr Foyster had taken steps to actively dispute an earlier attempt at termination made by Bunnings on 6 May 2016, and because Bunnings, during the course of the matter, abandoned its position that termination had occurred on this date.[7] In respect of s.366(2)(c) and (d), the Commissioner found these to be neutral considerations.[8]

[7] The Commissioner's overall conclusion was that on balance he was not persuaded that there were exceptional circumstances justifying an extension of time.[9]

[8] In his Notice of Appeal Mr Foyster stated:

"1. The Commissioner erred in finding that the date of dismissal was 6 October 2016. The Commissioner should have found that the date of dismissal was 10 October 2016, such that the appellant did not require an extension of time. Specifically, the Commissioner misapplied obiter in Ayub v NSW Trains [ [2016] FWCFB 5500] by interpreting references to having a "reasonable opportunity" to receive a dismissal letter as, in effect, deeming receipt of the letter upon an employee in circumstances where they were not aware of it and had not deliberately or recklessly avoided receipt of it.

(a) the Commissioner erred in finding that there were no exceptional circumstances where, on his findings the appellant was unaware for 3 of the 21 days in which he had to file a claim (and part of the 4th, plus the day of dismissal itself) that he had been dismissed;

(b) the Commissioner erred in finding that the absence of prejudice to the respondent was a neutral value in any consideration as to the existence of exceptional circumstances.

[9] In relation to the first ground of appeal, Mr Foyster contended that it was in the public interest for the Commission to grant permission to appeal because it would provide an opportunity to clarify the issue of what it means to have had a "reasonable opportunity" to read an email or letter communicating a dismissal, an issue which had not been previously decided. Mr Foyster submitted that this issue arose in the context that the Commission had wrongly applied the Full Bench decision in Ayub v NSW Trains[10] to effect an analogue of the postal delivery rule, so that mere receipt of an email communicating dismissal was sufficient to constitute a reasonable opportunity to read it. In relation to the second ground, Mr Foyster submitted that it was in the public interest to clarify whether, if an employee genuinely and innocently did not know that he or she had not been dismissed for a portion of the 21-day period, this constituted an exceptional circumstance for the purpose of s.366(2). He also submitted that the grant of permission would provide the Commission with an opportunity to clarify whether the absence of prejudice to the employer should be treated as a neutral consideration or, as a factor weighing in favour of granting an extension of time. In this respect, he contended that the Decision, which treated the absence of prejudice as a neutral consideration, was in conflict with the Full Bench decision in Hambridge v Spotless Facilities Services Pty Ltd[11], where the absence of prejudice was treated as a factor weighing in favour of the grant of an extension of time.

[10] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission's (Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker.[12] There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:

• (1) A person who is aggrieved by a decision:

(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or

(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;

may appeal the decision, with the permission of the FWC.

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.

[11] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[13] The public interest is not satisfied simply by the identification of error[14], or a preference for a different result.[15] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issue 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..."[16]

[12] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[17] 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.[18] 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.[19]

[13] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[20] A decision as to whether to extend time under s.366(2) involves the exercise of a discretion.[21]

[14] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[22]

[15] Mr Foyster's first ground of appeal was founded on the contention that the Commissioner misapplied the Full Bench decision in Ayub v NSW Trains.[23] That decision involved an analysis, in relation to the requirement in s.394(2)(a) that an unfair dismissal remedy application be made "within 21 days after the dismissal took effect", as to when a dismissal could be said to have taken effect for the purpose of the operation of the prescribed time limitation. The Full Bench's primary conclusion was as follows:

"[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider ... that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this...."

"[42] We likewise consider that the mere delivery of a document to an employee's usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a "postal delivery rule" where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter."

[17] It may be accepted that the reasoning in Ayub is equally applicable to s.366(1)(a), since there is no difference in the language used and it is apparent that the provision has essentially the same legislative purpose as s.394(2)(a). However we do not accept Mr Foyster's contention that what constitutes a "reasonable opportunity" to read correspondence or an email communicating a dismissal requires further elaboration at the Full Bench level. As the Full Bench made clear in Ayub, there may be a range of circumstances where an employee has a legitimate explanation for not reading a letter or email communicating a dismissal immediately upon delivery, and we do not consider that it would be a useful or indeed legitimate exercise in an appeal for a Full Bench to promulgate something in the nature of a decision rule concerning this issue. Each case of this nature will necessarily turn on its own facts, and it is not possible to establish guiding principles anticipatory of the various factual scenarios that might conceivably arise. In this case, the Commissioner considered in detail the factual circumstances of Mr Foyster's case, including that Mr Foyster had read an email concerning his employment while overseas, and that he had no explanation for not reading the email upon his return home other than that he did not regularly check his emails.[24] The Commissioner's factual inference that "The only conclusion that can be drawn from the evidence of the Applicant is that he could have but chose not to check his emails between 5 October 2016 and 10 October 2016"[25] was not challenged by Mr Foyster, and clearly supported the conclusion that he had a reasonable opportunity to read Bunnings' dismissal letter at the time of or soon after he arrived home from his overseas trip. There is no basis for Mr Foyster's contention that the Commissioner erred by applying something in the nature of a postal delivery rule, contrary to the reasoning in Ayub: it is clear that in the Decision the Commissioner, having found that Mr Foyster did not actually become aware of his dismissal until 10 October 2016, directly addressed the question of whether he had a reasonable opportunity to become aware it before then.

[18] In relation to the second ground, the determination of the question of whether there were exceptional circumstances attending Mr Foyster's delay in lodging his application because he did not have actual knowledge of his dismissal until four days after his imputed date of dismissal involved the exercise of a discretionary judgment on the part of the Commissioner. Mr Foyster's lack of knowledge of the dismissal for that period was taken into account by the Commissioner, as was the lack of any out-of-the-ordinary reason for Mr Foyster's failure to lodge his application within the remainder of the 21-day period.[26] No error is apparent in the exercise of that discretion. That the Commissioner treated the lack of any prejudice to Bunnings as a neutral factor rather than one favouring the grant of the extension does not appear to us to have been a determinative matter, given the absence of any identifiable exceptional circumstances in Mr Foyster's case. That is to be contrasted to the decision referred to by Mr Foyster, Hambridge v Spotless Facilities Services Pty Ltd[27], where a Full Bench that was re-determining an application for an extension of time found that the reasons for the delay in that case were "highly unusual and ... largely beyond the control" of the applicant.[28]

[19] We do not consider that Mr Foyster's appeal raises any issue of legal principle or general applicable, or that the Decision was attended by sufficient doubt to warrant its reconsideration or manifested any injustice or was counter-intuitive, such as to require the grant of permission to appeal in the public interest or to justify the grant of permission on discretionary grounds. Permission to appeal is therefore refused.

[1] [2017] FWC 1905

[5] The Commissioner found that s.366(2)(e) was not a relevant consideration as there were no other persons in a like position to Mr Foyster.

[10] [2016] FWCFB 5500, 262 IR 60

[11] [2017] FWCFB 2811

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

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

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

[15] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review_; Coal & Allied Mining Services Pty Ltd v Lawler_ (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

[16] [2010] FWAFB 5343, 197 IR 266 at [24] - [27]

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

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

[19] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

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

[21] Halls v McCardle and Ors [2014] FCCA 316

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

[23] [2016] FWCFB 5500, 262 IR 60

[27] [2017] FWCFB 2811

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