Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2019] FWC 25 of Commissioner Spencer at Brisbane on 4 January 2019 in matter number C2018/1901.

[1] On 6 January 2019, Mr Luke Tamu (the Appellant) lodged a notice of appeal in the Fair Work Commission (the Commission), for which permission to appeal is necessary, against a decision by Commissioner Spencer on 4 January 2019 (the Decision)[1] in which the Commissioner refused to grant an extension of time to file a general protections application under section 365 of the Fair Work Act 2009 (the Act) (the extension of time appeal).

[2] Directions were issued for the extension of time appeal on 16 January 2019.[2] A hearing by this Full Bench was conducted on 22 March 2019 after Mr Tamu sought, and was twice granted, adjournments from earlier scheduled hearing dates of 4 February and 6 February 2019.

[3] The Respondent to the appeal is Mr Tamu's former employer, Australia for UNHCR (the employer).

[4] Both Mr Tamu and the Respondent were self-represented at first instance and at the appeal hearing.

[5] At the conclusion of the appeal hearing, we granted Mr Tamu a further seven days to provide a copy of medical certificates he said were in his possession and relevant to his case. We also provided the parties time to file material relevant to Mr Tamu's claim that a union was acting or should have acted on his behalf in lodging his application.[3] Those further materials were subsequently received[4] and we deal with them in this Decision.

[6] We do not, however, take account of further written submissions made by Mr Tamu since we reserved our decision other than the aforementioned material pertaining to these two matters. Directions were issued ahead of the appeal hearing for materials to be filed. Mr Tamu had sufficient time within which to provide such materials, and did so. He was provided an opportunity to address the Full Bench on 22 March 2019, and did so. It is not in the interests of justice, nor does it contribute to the efficient conduct of proceedings, to take account of further written views expressed by a party once a decision is reserved, unless leave has been provided for the expression of those views. It would also be procedurally unfair to other parties (in this case, the Respondent) to have regard to views that the Respondent had not been put on notice about nor had an opportunity to reply to.

[7] Mr Tamu's general protections application involving dismissal was filed in the Commission on 11 April 2018. In his application, Mr Tamu alleged that he had been dismissed by Australia for UNHCR with several general protections contraventions being indicated, including that his dismissal was unfair, discriminatory and unlawful; that he had not been paid correctly; and that his termination of employment came about for reasons that included reports made by him of various colleagues committing fraud and timesheet theft. While the application itself is unclear about the precise date of termination, it states that on 9 March 2018 he was called by a person or persons from Australia for UNHCR who is alleged to have told him that he had been advised by a person from the Public Fundraising Regulatory Association that Mr Tamu was detrimental to UNHCR and that this was the main reason for his termination. Mr Tamu received a termination letter on 15 March 2018.

[8] On any available construct, the general protections application made by Mr Tamu appears to have been made more than 21 days after the date on which his termination took effect.

[9] Commissioner Spencer conducted hearings on Mr Tamu's extension of time request on 14 May 2018 and 18 September 2018. The Commissioner reserved her decision. It was delivered in writing on 4 January 2019.

[10] This extension of time appeal is the fourth appeal Mr Tamu has made on his application. Differently constituted Full Benches have dealt with the following matters:

• Appeal of 17 May 2018 against hearing procedures adopted by the Commissioner on 14 May 2018. By decision dated 26 June 2018 that appeal was held to be incompetent and the matter returned to Commissioner Spencer for determination.[5]

• Appeal of 17 July 2018 against a decision by Commissioner Spencer to grant the Respondent an adjournment to a different hearing day. By decision dated 26 July 2018 permission to appeal was refused. The matter was returned to the Commissioner for determination.[6]

• Appeal of 4 September 2018 against a Notice of Listing issued by Commissioner Spencer and against an alleged failure by the Commissioner to exclude evidence from a proposed employer witness. A stay was sought and rejected by ex tempore decision on 14 September 2018 (written reasons 19 September 2018).[7] By a further ex tempore decision on 27 September 2018 (written reasons 2 October 2018) permission to appeal was refused. The matter was again returned to the Commissioner for determination.[8]

[11] Mr Tamu also drew our attention to a complaint he made to the President of the Commission under section 581A of the Act on 4 January 2019 concerning the hearing before Commissioner Spencer, and a reply received from the President dated 25 January 2019. For the sake of completeness, we note that this Full Bench is exercising jurisdiction under sections 604 and 607 of the Act to determine Mr Tamu's appeal of 6 January 2019 only. We exercise no jurisdiction under section 581A.

[12] The subject of this decision is Mr Tamu's appeal against the substantive decision of Commissioner Spencer to refuse an extension of time.

[13] An appeal under section 604 of the 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.[9] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[14] Section 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.[10] The public interest is not satisfied simply by the identification of error,[11] or a preference for a different result.[12]

[15] Other than the special case in section 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.[13] 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.[14] 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.[15]

[16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.[16]

[17] 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."

[18] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[17] A decision whether to extend time under section 366(2) involves the exercise of a discretion.[18]

[19] The meaning of "exceptional circumstances" in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd [19] (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."

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.[20]

[21] We now turn to the grounds of appeal.

[22] Although not clearly expressed, we discern multiple grounds of appeal in Mr Tamu's Notice of Appeal and in various written and oral submissions made to us.[21]

[23] In summary, they appear to be:

• The Commissioner acted unfairly in determining the matter;

• Mr Tamu was unnecessarily subjected to a jurisdictional hearing;

• That the date of dismissal was disputed and related errors of fact were made;

• The Decision is plainly wrong, applies wrong principles and is unjust;

• Mr Tamu has evidence that he was sick at the time of the delay; and

• Mr Tamu was a member of a union who should have filed proceedings on his behalf.

[24] We deal with these grounds in turn. In doing so we emphasise that we have read, considered and taken into account the materials submitted by Mr Tamu prior to and at the extension of time appeal hearing, including materials that include variants of the grounds we have summarised.

The Commissioner acted unfairly in determining the matter

[25] There are a number of elements to this submission.

[26] Mr Tamu contends that the Commissioner did not objectively consider his evidence.

[27] There is no merit in this submission. A review of the transcript of proceedings before the Commissioner indicates that Mr Tamu gave oral evidence, tendered documentary material and was asked, at the conclusion of proceedings, to confirm whether he had placed all relevant information before the Commissioner, to which Mr Tamu replied "I am in agreement that all matters in relation to the 21 day notice have been discussed."[22] Further, a review of the Commissioner's decision indicates direct reference to Mr Tamu's evidence and submissions,[23] and express consideration of them.

[28] Mr Tamu contends that the Commissioner erred in not having before her an audio recording of a telephone call between Mr Tamu and a Mr Brogan of the employer on 9 March 2018. A related submission is that the Commissioner erred in not forcing the employer to produce an audio recording of that telephone call.

[29] There is no merit in this submission. By order dated 20 July 2018, the Commissioner required the employer to produce any recording between Mr Tamu and a Mr Brogan or a Mr Keating on 9 March 2018. An officer of the employer (Mr Mellsop) swore an affidavit on 24 July 2018 to the effect that a search had been conducted and no such audio recording had been made.[24] Mr Brogan's sworn evidence in proceedings was that no such recording had been made.[25] The Commissioner was entitled to rely on this evidence, and did so.[26]

[30] Mr Tamu contends that the Commissioner exhibited a predetermined and biased view on his application. He says that at the hearing on 14 May 2018, the Commissioner sought to conciliate the application and, in the context of doing so, remarked that an extension of time would not be given. He also says that during the hearing on 18 September 2018, the Commissioner insinuated that Mr Tamu would be likely to appeal her decision, inferring that her decision would be adverse to his interests.

[31] There is no evidence to support either contention.

[32] The circumstances surrounding the proceeding of 14 May 2018 were the subject of Mr Tamu's first appeal. In its decision on that matter, a Full Bench of this Commission observed:

"[23] When the matter commenced before the Commissioner on 14 May 2018 she properly expressed to the parties her view that this was a matter capable of being the subject of a discussion to resolve it. There is no evidence that either party objected to that course, and the matter then proceeded through the usual stages of the conciliation..."[27]

"[25] ...The suggestion made by the Commissioner at the start of the proceedings on 14 May 2018 that there should be a discussion to resolve the matter was the expression of an orthodox and frequently asked question by every Member of the Commission - could this matter be better dealt with through an agreed outcome?"

[33] We see no need to add to these observations other than to note that neither Mr Tamu's first Notice of Appeal of 17 May 2018 nor his written submissions of 8 June 2018 before that Full Bench included the assertion he now makes about the Commissioner having expressed a predetermined view during proceedings on 14 May 2018.

[34] We have examined the transcript of proceedings before the Commissioner of 18 September 2018 to assess whether the second of the contentions made by Mr Tamu is supported by the record. In the course of Mr Tamu giving his evidence, the Commissioner made the following remarks:

"THE COMMISSIONER: You are aware...that every procedural step that has been taken in this matter, you have exercised your entitlement to appeal those interlocutory matters or listings, directions in relation to this matter so I have taken significant steps to provide you with further directions on every occasion...to allow you the most fulsome opportunity to file any relevant documents that you wish in relation to this case." [28]

"THE COMMISISONER: It is not appropriate that we're going to leave this hearing and you're going to say I denied you the opportunity to provide relevant documentation, and appeal the proceedings on that basis."[29]

"THE COMMISSIONER: But Mr Tamu, you have had opportunity to do all of these things. You've appealed this matter, that any direction that I've made in relation to this matter - I'm not criticising you for that, what I'm saying is that I went to great lengths to ensure there were fair proceedings for all parties to file whatever material they wish to, and there's been a series of opportunities to do that."[30]

[35] These observations by the Commissioner were made in the context of seeking from Mr Tamu all relevant documentation on which he relied. In making reference to a prospective appeal, an illustrative point was being made by the Commissioner to a self-represented litigant. It was not being made as a point of criticism. An independent observer would not reasonably construe such observations as bias or prejudgment, particularly in the context of the proceedings as a whole. It is clear from the record of proceedings that the Commissioner provided a degree of assistance to Mr Tamu to put his materials and submissions to her as completely as possible.

[36] We conclude that there was no reference, let alone inappropriate reference, by the Commissioner directly or indirectly inferring that her decision would be adverse to Mr Tamu's interests. We conclude that her decision was not tainted by bias or prejudgment.

[37] Mr Tamu contends that the Commissioner acted improperly in delivering the Decision on 4 January 2019. He says that the Commissioner did so because he lodged a complaint against the Commissioner under section 581A that day, and because the Commissioner was on leave that day.

[38] There is no merit in these submissions. The Decision and the published reasons indicate an orthodox consideration of the issues requiring determination. There is no evidence they were influenced in any respect by a complaint, if in fact one had been made in advance of delivery of the Decision or made known to the Commissioner. The Decision was made available to Mr Tamu and to the employer by the Commissioner on 4 January 2019 and published in a regular manner. Nor is an error of law or other appealable error established were a Commission Member to publish a decision during a period of leave, if in fact this is what occurred in this instance.[31] A Commission Member's appointment under section 626 of the Act is not suspended by virtue of taking leave.

The Appellant was unnecessarily subjected to a jurisdictional hearing

[39] Mr Tamu contends that he was unnecessarily subjected to a jurisdictional hearing and to three Full Bench hearings.

[40] This is not a sustainable ground of appeal. The employer raised a jurisdictional objection to Mr Tamu's application. It correctly pointed to the fact that section 366(1)(a) of the Act requires general protections applications under section 365 to be made within 21 days after a dismissal took effect. That matter having been raised, the Commissioner was required to hear and determine that question in advance of any further proceedings on Mr Tamu's application.

[41] Nor is it the case that Mr Tamu was unreasonably subjected to appeal hearings on his application. Each of the appeals on interlocutory issues were brought by Mr Tamu, not by the employer. To the extent they put Mr Tamu to cost and expense, they did likewise to the employer. Each appeal was dismissed and the matter, on each occasion, remitted for determination. That determination occurred. Proceedings were conducted by the Commissioner in a manner consistent with the observations made by the respective Full Bench decisions on Mr Tamu's three interlocutory appeals.

That the date of dismissal was disputed and related errors of fact were made

[42] Mr Tamu contends that the decision is unsafe because the date of dismissal (if any) was disputed and other errors of fact were made by the Commissioner.

[43] In evidence and submissions before the Commissioner, Mr Tamu disputed that he was dismissed on 9 March 2018. He claimed that his dismissal was notified and took effect on 15 March 2018 when he received a formal letter of termination. The employer's evidence was that Mr Tamu was notified of his dismissal on 9 March 2018 during a telephone conversation with officers of the employer and that this advice was confirmed in writing by letter dated 12 March 2018, which was received by Mr Tamu on 15 March 2018.

[44] The Commissioner made no express determination as to whether Mr Tamu's dismissal took effect on 9 March 2018, 12 March 2018 or 15 March 2018. The Commissioner observed that even were Mr Tamu's submission accepted that the date dismissal took effect was 15 March 2018, his general protections application was still out of time (by six days rather than twelve days).[32]

[45] In so observing, the Commissioner was correct and highlighted a matter relevant to her determination: that on either Mr Tamu or on the employer's case it was necessary to determine whether exceptional circumstances existed so as to warrant an extension of time. While we do not consider that the Commissioner was in error in approaching the matter on this basis, we are of the view that when exercising the discretion required by section 366(2) it is preferable that a first instance decision maker makes a precise finding of fact as to the date a dismissal took effect (if the evidence permits such a finding), rather than postulate one of two options. Adopting the course we consider preferable provides clarity as to the length of the delay and then permits that fact to be weighed with some exactitude in the context of the other factors the Commission is required to take into account in section 366(2)(a) to (e) of the Act.

[46] In the context of the Commissioner's published reasons, the approach adopted by the Commissioner, whilst not preferable, does not disclose appealable error. The length of the delay of either six or twelve days was assessed against the factors in section 366(2) and, even were the length six days only, the Commissioner found that exceptional circumstances did not exist. In so finding, the Commissioner adopted orthodox considerations to the length of time she postulated. We also note that this approach did not disadvantage Mr Tamu. Assessing his case at its highest by assessing the section 366(2) factors against a dismissal that (on his case took effect on 15 March 2018) presented a weighing exercise against a shorter period of delay than that advanced by the employer.

[47] Mr Tamu also contended that the Commissioner made related errors of fact. In particular, he submitted that the Mr Brogan who purported to inform him of his dismissal over the phone on 9 March 2018 was not the authentic Mr Brogan who was an officer of the employer or who gave evidence in the proceedings before the Commissioner.

[48] The Commissioner at [53] of her Decision said:

"...It is not necessary to determine the factual dispute between the parties as to whether the Mr Brogan who gave evidence to the Commission is the same person who spoke to the Applicant on 9 March 2018. The question over the identity of Mr Brogan is, in fact, of little relevance to the question of whether exceptional circumstances exist to justify the Commission exercising its statutory discretion to extend the time for making an application pursuant to s.365 of the Act."

[49] In the abstract, the Commissioner was not in error in making this observation. However, in the context of this matter, the identity of Mr Brogan was relevant to the question of whether there was a dismissal that took effect on 9 March 2018. That is because the employer's case was that Mr Brogan was one of the officers who on 9 March 2018 communicated the decision to terminate Mr Tamu's employment. For reasons expressed above, it would have been a preferable course for the Commissioner to have made findings on that question (the date dismissal took effect). In so doing, it would in all probability have been necessary for the Commissioner to have made findings about the creditworthiness of the evidence of the Mr Brogan who appeared before her, and the evidence of Mr Keating (who also appeared before her) as to the identity of the Mr Brogan who was present during the telephone call on 9 March 2018. That the Commissioner did not do so is not however, for reasons expressed above, appealable error. The Commissioner did not make a mistaken finding of fact.

The Decision is plainly wrong, applies wrong principles and is unjust

[50] Mr Tamu submits in general terms that the Commissioner's decision is plainly wrong, applies wrong principles and is unjust.

[51] We do not agree. The Commissioner applied the relevant considerations of law in section 366(2) of the Act. Apart from our observation that it would have been preferable for the Commissioner to have made a precise finding of fact as to the date dismissal took effect, there is no irregularity or error on the face of the Decision.

[52] On the facts before the Commissioner, it was open to conclude that exceptional circumstances had not been made out. It is neither unusual nor unjust for an extension of time to be refused in the absence of exceptional circumstances. Indeed, that is the legally required result should that finding be made. Even a short period of delay does not warrant an extension of time if exceptional circumstances are not made out.

Mr Tamu has evidence that he was sick at the time of the delay

[53] Before the Commissioner, Mr Tamu advanced two propositions as the reason for the delay: firstly that he pursued an internal grievance procedure, and secondly that he was sick and stressed by the dismissal.

[54] The Commissioner dealt with both of these submissions in an orthodox way in the Decision.

[55] It was established on the evidence at first instance, and accepted by the Commissioner,[33] that very shortly after being notified of his dismissal, Mr Tamu notified the employer in writing that he (Mr Tamu) was unhappy with the decision and would be taking action to have it set aside. The action Mr Tamu pursued was an internal grievance procedure. At [41] to [50], the Commissioner set out the factual evidence relating to Mr Tamu's internal staff grievance and concluded that "there was nothing preventing the Applicant from filing the application within the 21 day time limit, whilst pursuing that grievance procedure with the UNHCR. The Applicant's ignorance as to which body to challenge his dismissal with, is not an "exceptional circumstance" justifying an extension of time."[34]

[56] We see no error of principle in such a conclusion. The Commissioner applied the correct principle in forming this view: a dismissed employee pursuing an internal review is not, of itself, a sufficient explanation for delay in meeting a statutory time frame for the lodgement of legal proceedings.[35] Whilst a relevant factor, it must be considered amongst other relevant factors. It is not of itself an exceptional circumstance.

[57] The issue of Mr Tamu being "sick and stressed" at the time of dismissal, including during the period of delay, was advanced by Mr Tamu before the Commissioner and on appeal.

[58] At [51] of the Decision, the Commissioner noted that whilst Mr Tamu asserted that he had been sick and stressed, "there was no medical evidence from the Applicant, before the Commission, in support of this submission." The Commissioner went on at [55] to conclude:

"In respect of the Applicant's alleged mental state, it is well-established that stress and associated conditions are commonly encountered by persons in similar positions post dismissal, and this alone will not generally satisfy "exceptional circumstances", to justify an extension of time. Furthermore (there was a lack of medical evidence) but also the fact that the Applicant was able to, on his own evidence, take action to raise other grievances with the UNHCR and the Respondent, demonstrated that the Applicant was able to engage in formal proceedings and therefore able to file the s.365 application within time."

[59] We see no error in this conclusion. It is incumbent on an applicant seeking an extension of time to adduce sufficient probative evidence to establish the factual basis on which they assert exceptional circumstances. A mere assertion of sickness or incapacity is not evidence of sickness or incapacity. Having failed to adduce such evidence before the Commissioner, it cannot be said that the Commissioner's conclusion was in error.

[60] In advance of this appeal, Mr Tamu communicated with the Full Bench in the following terms:

"Please advise if I need to produce medical evidence for the period February 2018 through December 2018 as an additional ground."[36]

[61] The Presiding Member of this Full Bench replied as follows:

"The view of the Full Bench is that if there is medical evidence you wish to bring which explains why your application was filed late and you did not submit it to Commissioner Spencer at the original hearing in which you sought an extension of time, you should provide it. The Full Bench will then consider, having regard to s.607 of the Fair Work Act 2009, whether it will admit it in the consideration of your Appeal." [37]

[62] Mr Tamu produced no such medical evidence in advance of the appeal hearing. During the appeal hearing, Mr Tamu claimed that he had such evidence but not in his immediate possession. Without ruling on whether we would admit new evidence, we provided an opportunity for Mr Tamu to submit, within seven days of having reserved our decision, a medical certificate he claimed to possess but which he had not produced at the hearing at first instance or during the appeal hearing.

[63] On 29 March 2019, Mr Tamu provided a copy of three certificates under cover of an email to this Full Bench.[38] However, Mr Tamu objected, on privacy grounds, to the employer being provided this material.

[64] On 2 April 2019, the Presiding Member of this Full Bench advised Mr Tamu as follows:

"Deputy President Clancy has noted your emails advising that you do not want to provide your medical material to the Respondent. He advised you at the hearing that if you submitted medical material, it would be provided to the Respondent. If you do not consent to the material being provided and it is not provided to the Respondent, the Full Bench will proceed to make its determination without reference to it. Therefore, should you maintain that you do not wish for the Respondent to see the medical material and you wish to withdraw it, please advise by 12.00pm tomorrow. In the absence of a response from you by this time, the material will be provided to the Respondent without further notice and the Respondent will have the opportunity to comment upon it." [39]

[65] By email to this Full Bench on 3 April 2019,[40] Mr Tamu maintained his objection, but under protest, sent the Commission and the Respondent copies of the certificates with what appears to be self-administered handwriting and self-administered redactions, adding that he had "applied the law in making retractions." On 4 April 2019, Mr Tamu advised this Full Bench that he had "lodged an official privacy complaint" that this Full Bench "want[s] me to disclose my medical condition to a company I no longer work for."[41]

[66] Section 607 of the Act provides this Full Bench with discretion whether to admit new evidence on appeal. The principles governing the exercise of that discretion are well established. In Akins v National Australia Bank[42] the Court noted that while it is not possible to formulate a test which should be applied in every case, in general three principles should be applied:

• it must be shown that the evidence could not have been obtained with reasonable diligence for use at the proceedings at first instance;

• the evidence must be such that there must be a high degree of probability that there would be a different decision; and

• the evidence must be credible.

[67] In subsequent decisions of this Commission, these principles have been applied as a useful guide to the exercise of discretion under section 607(2),[43] and we likewise do so.

[68] Applying these principles, we have decided not to admit the evidence for five reasons.

[69] Firstly, two of the certificates are irrelevant. They concern the period of this appeal hearing (certificates dated 5 February 2019 and 28 March 2019) and not the period following dismissal. Only one of the certificates is of potential relevance (certificate dated 19 March 2018 and pathology request 27 March 2018).

[70] Secondly, the certificate of potential relevance was not produced before the Commissioner at first instance, notwithstanding the Commissioner on multiple occasions raising with Mr Tamu the importance of producing all material on which he relied. Before the Commissioner, Mr Tamu asserted sickness and stress as a reason for delay but made no specific reference to this certificate, let alone difficulties with obtaining or producing it. No explanation has been provided to this Full Bench as to why this document was not provided to the Commissioner at first instance. Mr Tamu was provided that opportunity.

[71] Thirdly, Mr Tamu has only agreed to provide an incomplete version of the certificate to the employer (whilst providing a copy of an apparently complete version to this Full Bench). The self-administered redactions made by Mr Tamu (even if we permit them to be made) are material as they remove the name and location of the signatory. The employer may be prejudiced if only provided an incomplete certificate as it may be unable to test its veracity or respond adequately to it. Whilst the Commission has discretion to take evidence in private should there be sound reasons, it would not be procedurally fair to do so if the other party is not able to respond to the evidence in a sufficiently informed manner.

[72] Fourthly, for the evidence to be admitted its veracity would need to be tested. Mr Tamu has provided the Full Bench a copy, not the original of the certificate. We would need to receive the original. Further, there appears to be a handwritten overwrite on the date of the pathology request. Further still, the certificate dated 19 March 2018 purports to have been issued from Nairobi, Kenya on that day. Mr Tamu gave evidence before the Commissioner of his activities in the post dismissal period but made no reference to having travelled internationally between the date of dismissal and the date of filing. Had he done so, that may have been relevant to his case, but that was not his evidence.

[73] Fifthly, there is no high degree of probability that there would be a different decision were the evidence found to be credible and admitted. A credible medical certificate indicating that Mr Tamu was certified "unfit to work, focus and concentrate" (as the certificate indicates) during the period of delay would be relevant and weigh somewhat in favour of granting an extension of time. However, the evidence before the Commissioner was that during this same period of certified illness, Mr Tamu was capable (and did) lodge internal grievance proceedings and correspond with his former employer and other agencies in relation to those matters, as well as correspond in relation to timesheets, wages and other post-employment issues. Mr Tamu would need to explain how his unfitness to focus or concentrate did not apply to the focus and concentration required to file and prosecute an internal grievance procedure, but did apply to a Commission claim. This may require evidence from the medical practitioner(s) and an opportunity for the employer to cross examine those practitioners. Mr Tamu would also need to satisfy the Commission that his certified unfitness, whilst an explanation for the delay, was of such weight that it militated against other factors found by the Commissioner not to weigh in favour of granting an extension of time. Given the Commissioner's findings, in these circumstances it cannot be concluded that there is a high degree of probability that the Commission's decision would be different should the medical certificate sought to be admitted be received into evidence.

[74] We are not persuaded to admit this new evidence.

Mr Tamu was a member of a union who should have filed proceedings on his behalf

[75] On appeal, Mr Tamu contended that a union of which he was allegedly a member (the National Union of Workers, NUW) should have filed proceedings on his behalf but failed to do so.

[76] This is not a submission developed in any substantial manner by Mr Tamu at first instance, but it became a significant element of his oral submissions on appeal. Although during the appeal hearing Mr Tamu did not have in his possession documentary evidence to support this contention, he said that such material existed. The employer indicated that it had some of the documentary material Mr Tamu was referring to. It undertook to provide that to the Full Bench. Without ruling on whether we would admit new evidence, we agreed to receive such material if supplied within seven days of having reserved our decision. On 29 March 2019, the employer provided to the Commission and to Mr Tamu a chain of emails. Mr Tamu also provided some material (on 25 March 2019) and responded by indicating that the email chain was accurate.[44]

[77] We do not need to determine whether to admit such new material as it does not advance Mr Tamu's case. The material does not inform the Commission whether he was a member of the NUW at the time of his dismissal or in the period prior to filing his application, or whether he had instructed the union to act on his behalf. It may indicate that he was a member at least in June 2018, July 2018 and August 2018. This does not however assist Mr Tamu. His contention, as we understand it, is that the NUW was either required or in some representative capacity should have acted for him or assisted him in filing the application within time. There is simply no prima facie material in what has been submitted by Mr Tamu on which such a contention could be advanced. The employer's material indicates that an officer of the NUW was sent a Notice of Listing by the President's Chambers in respect of the second interlocutory appeal by Mr Tamu. This was four months after his dismissal. That cannot be evidence explaining the delay months earlier. In any event, the material includes an email from an NUW officer to the Commission on 19 July 2018 to the following effect:[45]

"The NUW is not presently representing Mr Tamu in this proceeding. Not sure why the previous notice of listing was directed to us."

[78] Even were this material before the Commissioner, it would not have been capable of establishing the propositions relevant to the reason for delay advanced before us by Mr Tamu. We reject this ground of appeal.

[79] The Commissioner's decision does not disclose appealable error. It is not disharmonious with like decisions. It does not manifest an injustice. There are no other grounds on which the public interest is enlivened to grant permission to appeal.

[80] For these reasons, permission to appeal is refused. The appeal is dismissed.

[1] [2019] FWC 25.

[2] Directions, Justice Ross, 16 January 2019.

[3] Appeal transcript 22 March 2019 PN 240 - 241.

[4] Correspondence from Mr Tamu dated 25 March 2019, 29 March 2019 (various), 1 April 2019, 2 April 2019, 3 April 2019, 4 April 2019, 5 April 2019 (various) and 8 April 2019; correspondence from Australia for UNHCR dated 29 March 2019.

[5] [2018] FWCFB 3522.

[6] [2018] FWCFB 4332.

[7] [2018] FWC 5853.

[8] [2018] FWCFB 6105.

[9] 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.

[10] 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 & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44]- [46].

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

[12] 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].

[13] 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].

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

[15] 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].

[16] See Acts Interpretation Act 1901 (Cth) s.36 as in force on 25 June 2009 see s.40A of the Act; Kristia Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.

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

[18] Halls v KR & MA McCardle and Ors [2014] FCCA 316.

[19] [2011] FWAFB 975.

[20] Misconi v Negri Contractors (Vic) Pty Ltd [2019] FWCFB 654 at [13]; see also Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]- [26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

[21] Notice of Appeal 6 January 2019; Mr Tamu written submission 16 January 2019; Mr Tamu submission by email 23 January 2019; Mr Tamu submission by email 28 January 2019; Mr Tamu submission 16 February 2019; Mr Tamu submission by email 28 February 2019; Mr Tamu submission by email 9 March 2019; Mr Tamu submission by email 19 March 2019; Mr Tamu submission by email 21 March 2019.

[22] Transcript 18 September 2018 PN 824 - 825.

[25] Transcript 18 September 2018 PN 433 - 434.

[27] [2018] FWCFB 3522 (26 June 2018).

[31] The Commissioner was on leave on 18 January 2019, when Mr Tamu requested transcript of the proceedings before her.

[35] Z Gao v Department of Human Services [2011] FWAFB 5605.

[42] [1994] 34 NSWLR 155 at 160.

[43] JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963; Abigroup Contractors Pty Ltd v Mr John Crema, Mr Paul Edwards, Ms Christine Comley and Mr Ray Allan [2012] FWAFB 8453.

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