Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2021] FWC 701 of Deputy President Young at Melbourne on 11 February 2021 in matter number C2020/7819 - permission to appeal refused.

[1] Mr Mathew Oliver lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a Decision[1] by Deputy President Young, made on 11 February 2021 (Decision), for which permission to appeal is required.

[2] The Decision concerned a General Protections application under s.365 of the Act, to deal with contraventions involving dismissal, in respect of work he performed, for Bunnings Group Limited (the Respondent). The Decision the subject of the appeal concerned the jurisdictional objection that the s.365 application was filed out of time.

[3] General Protections applications involving dismissal in accordance with s.365(1) must be made within 21 days after the dismissal takes effect or in such further time that the Fair Work Commission (the Commission) allows. Mr Oliver's termination of employment took effect on 31 August 2020, and the application should have been lodged by 21 September 2020. The General Protections application was filed on 20 October 2020, 29 days out of time.

[4] In the Decision, the Deputy President determined that having regard to all of the factors required to be taken into account under s.366(2) of the Act, she was not satisfied that the requisite 'exceptional circumstances' existed to grant an extension of time for filing. Therefore the s.365 application was dismissed.

[5] In the Appellant's Form F7 - Notice of Appeal, Mr Oliver contends that the Decision was unjust and in error in a number of respects, including that relevant submissions and evidence were not properly considered in making the decision not to grant an extension of time. Further, that it would be in the public interest to grant permission to appeal the Decision.

[6] There is no right to appeal a Decision of the Commission and for an appeal to proceed, s.604(1) of the Act requires the Commission to grant permission to appeal.

[7] Directions were issued on 5 March 2021 which required Mr Oliver to file submissions, by 1 April 2021. The same Directions advised the parties that the matter was listed before the Full Bench for permission to appeal only, and that the hearing would be conducted by telephone. In accordance with the regular protocol, the Respondent was not required to file submissions. At the hearing, Mr Oliver represented himself, and Mr Anthony Runia, Employee Relations Advisor for Bunnings Group Limited, appeared for the Respondent.

[8] An application for permission to appeal is not a preliminary hearing of the appeal. The task of the Full Bench is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits. It is therefore necessary to engage with the appeal grounds, to consider whether they raise an arguable case of appealable error.

[9] Mr Oliver commenced employment with Bunnings Group Limited on 2 September 2017 and was dismissed from his employment on 31 August 2020.

[10] Mr Oliver lodged an unfair dismissal application under s.394 of the Act on 9 September 2020. The matter was settled before a Fair Work Commission conciliator, subject to the three-day cooling off period. The Respondent provided the release agreement, reflecting the terms of settlement on 12 October 2020.

[11] On 14 October 2020, Mr Oliver emailed the Respondent and the Commission stating he did not wish to proceed with the settlement reached on 9 October 2020. The withdrawal was considered to be within the three-day cooling off period.

[12] On 20 October 2020, Mr Oliver then lodged a s.365 General Protections application, outside the 21-day statutory time limit.

[13] In seeking the extension of time for filing of his General Protections claim, Mr Oliver stated his reasons for the delay in filing included that:

• He was distressed following his dismissal and that this aggravated his existing mental health condition;

• An assessment from his General Practitioner indicated he suffered high levels of stress and severe anxiety with mild depression;

• He was seeing a psychologist and was taking prescribed medication;

• His mental capacity and energy levels had been low and his sleeping had been erratic;

• The Respondent had filed its response to the unfair dismissal application outside the prescribed 7 days, which meant that Mr Oliver was unable to adequately assess the strength of his case during that time;

• His termination letter was vague; and

• He was unaware of his ability to lodge the application, and the Respondent did not provide the Fair Work Information Statement on commencement of his employment or any time thereafter, which Mr Oliver says would have made him aware of his ability to commence a General Protections application.[2]

[14] The Decision considered whether Mr Oliver's medical evidence demonstrated an existing mental health condition or a particular mental health issue, such that his mental health precluded him from lodging the application within time. The Deputy President determined that, on the evidence before the Commission, Mr Oliver's mental health did not provide a reasonable or acceptable explanation for the delay. As to the other reasons stated for the delay, the Deputy President considered that Mr Oliver had failed to provide a reasonable or acceptable explanation for the period of the delay. Further it was determined whether all of these reasons are considered on an individual or collective basis; the requisite 'exceptional circumstances' to extend the timeframe did not exist.

[15] The Form F7 (Notice of Appeal) prepared by Mr Oliver contains his appeal grounds under the form's question 2.1 'What are the grounds for your appeal?' as follows:

1. Facts and submissions regarding my existing mental health condition were not considered in the decision. This impacts the reason for the delay. Specifically:

   1. Oral and material submissions about ongoing counselling through Bunnings' Employee Assistance Program. This was not contested by the respondent.

   2. A medical certificate for sick leave due to stress.

   3. A record from my GP confirming the reason for sick leave (This was not submitted, however was discussed during oral and written submissions)

2. Facts and evidence contained within the documents provided were not thoroughly examined. These documents were created by the respondent and plainly detail the substantial and operative reasons for the decision to terminate my employment.

Two of the reasons relied upon by the respondent are the exercising of my workplace right to a safe workplace and my right and responsibility to ensure my employer complies with its duty of care and safety obligations. This impacts the merits of the application.

1. The decision to deny an extension of time is unjust.

1. The respondent failed to submit a response with the required time limit without consequence. 2. Evidence to confirm the respondent's reasons for dismissal was not supplied. The main reason is based specifically on:

1. A written complaint. 2. A witness' statement, who was never interviewed.

iii. CCTV footage.[3]

[16] In response to the Full Bench Directions, Mr Oliver filed brief submissions and referred to these at the hearing. The Respondent made brief submissions at the hearing. All of the material has been considered.

[17] There is no right to appeal[4] and an appeal may only be made with the permission of the Commission. Section 604 provides:

(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage 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)."

[18] 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.[5] The public interest is not satisfied simply by the identification of error,[6] or a preference for a different result.[7] 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..."[8]

[19] As an appeal cannot succeed in the absence of appealable error, it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[9] The fact that the Commission member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[10]

[20] Prior to dealing with the question of permission to appeal, we note that the Decision which is the subject of the permission to appeal deals only with the issue of whether or not Mr Oliver should be granted an extension of time for filing of his General Protections dismissal application. He had filed and withdrawn an unfair dismissal application, prior to the General Protections application.

[21] The matters raised in the notice of appeal have been considered by the Full Bench against the Decision refusing the grant of the extension of time. Decisions of this nature were considered in the Full Bench Decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[11] which set out the application of s.366 as follows:

"[11] Section 366(1) provides that an application under s.365 (a general protections application) must be made:

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

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

[12] Section 366(1)(a) provides that a general protections application must be made 'within 21 days after the dismissal took effect'. The 21 day period prescribed in s.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. The date of Mr Stogiannidis's dismissal was 21 September 2017 and the 21 day period expired on 12 October 2017. Mr Stogiannidis's general protections application was lodged on 24 November 2017, 43 days outside of the prescribed time.

[13] Section 366(2) 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.'

[14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. 15 A decision whether to extend time under s.366(2) involves the exercise of a discretion.

[15] The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (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.' (emphasis added)

[16] The Full Bench in Nulty relied on the following observations of Rares J in Ho v Professional Services Review Committee No 295:

'26. 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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' in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.' (emphasis added)

[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the 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.

[18] In deciding whether there are exceptional circumstances such as to enliven the discretion to extend time the Commission must take into account the matters specified in s.366(2)(a)-(e).

[19] To take a matter into account means that the matter is a 'relevant consideration' in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

'To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant'."

[22] Deputy President Young's decision comprehensively deals with the factors in s.366(2) to be considered for an extension of time. Mr Oliver made submissions regarding the assessment of the merits of the decision. The merits of the application, as per s.366(2)(d) were appropriately considered as a neutral matter, consistent with regular practice, given these matters had not been subject to cross examination.[12]

[23] The Appellant's written and oral submissions argued that some medical matters, including the medical certificate for stress, the consultation notes, accessing the employee assistance program, and the mental health plan, were not addressed or dealt with appropriately in the reasons for delay. We would however observe that the Decision, as per the following extract, provides the reasons dealing with the medical matters and issues of delay as follows:

"[15] Firstly, Mr Oliver says that he was distressed following his dismissal and that this aggravated his existing mental health condition. He says that since the date of his dismissal he has been suffering from "severe mental health issues" and that an assessment from his General Practitioner indicates high levels of stress and severe anxiety with mild depression. He says that a mental health plan has been made, he is seeing a psychologist and has been prescribed medication. He says that his mental capacity and energy levels have been very low and that his sleeping has been erratic. He says his poor mental health made it incredibly difficult for him to assess his situation and caused a much slower response. At hearing, Mr Oliver said that his focus and concentration had been "appalling". Secondly, Mr Oliver says that the Commission Registry made a number of errors in relation to the Unfair Dismissal Claim which resulted in the relisting of the conciliation conference from 29 September 2020 to 9 October 2020 and caused a delay of 11 days. Thirdly, Mr Oliver says the Respondent did not submit its response to the Unfair Dismissal Claim within 7 days as is required. He says he received the response on 8 October 2020 and that in the absence of that response he could not adequately assess the strength of his case. He says the termination letter was vague and due to the Respondent's late response he was deprived of information and time to submit the application. Fourthly, Mr Oliver says that the delay in the Respondent providing the settlement agreement prevented him from seeking advice promptly and caused a 3 day delay. Finally, Mr Oliver submits that he was unaware of his ability to lodge the application. He says that the Respondent did not provide the Fair Work Information Statement (FWIS) upon the commencement of his employment or at any time thereafter. He submits that if the FWIS had been provided to him he would have been aware of his ability to commence a general protections application.

[16] I accept that following his dismissal Mr Oliver was distressed. However, distress following the loss of one's employment is a common and understandable reaction. It is not unusual, special or uncommon. The only medical evidence before the Commission is a mental health plan dated 5 October 2020 (Plan). The Plan refers Mr Oliver for psychological therapy. It provides a diagnosis of "generalised anxiety" and subsequently states "Has anxiety and possible mild reactive depression secondary to persistent anxiousness". It provides that Mr Oliver has no past recorded mental health history and that he has never received specialist mental health care, although notes that he received some psychological therapy "about 10 years ago." It does not prescribe any medication, although at hearing Mr Oliver said that he had subsequently been prescribed medication and his mental health had improved. However, he did not give any evidence as to when he commenced medication. The Plan provides that most aspects of Mr Oliver's mental status examination are normal. The exceptions to this are in relation to:

• attention/concentration, which states "easily distracted":

• anxiety, which selects "other" but provides no further detail.

[17] Accordingly, there is no probative evidence before the Commission that Mr Oliver has any existing mental health condition or currently has severe mental health issues. There is no probative evidence that he has been diagnosed with high levels of stress or severe anxiety, or has been prescribed medication, although I accept his evidence that this has at some subsequent time occurred. Further, there is no probative evidence before the Commission that Mr Oliver's mental health in any way precluded him from lodging the application within time. On the evidence before the Commission, Mr Oliver's mental health does not provide a reasonable or acceptable explanation for the delay."[13]

[24] Mr Oliver's grounds of appeal argued that registry delays; (including that associated with the listing of the conciliation conference) contributed to the delay in filing his application. At paragraphs [18] to [23] of the Decision, the Deputy President specifically dealt with Mr Oliver's concerns, regarding these delays and the delay due to the provision of the Respondent's response to the unfair dismissal claim, the alleged generality of the termination letter, the delay associated with the provision of the settlement agreement and the failure to provide him with the Fair Work Commission Information Sheet. The delays as referred to occurred after Mr Oliver had filed his unfair dismissal application and prior to filing the s.365 application and therefore could not have contributed to the delay in filing the General Protections application.

[25] The further matter referred to is the alleged failure of Deputy President Young to take into account matters of relevant witness evidence and CCTV footage. These matters are dealt with in the neutral consideration of the merits of the matter at paragraph [28] of the decision.

[26] In this matter, Mr Oliver seeks to persuade us that the Deputy President should have further reviewed and considered the evidence before her differently and placed more weight on some matters (such as the consultation notes and Respondent's delays). On this basis, it was argued that a different view to extend time should have been concluded. We do not agree.

[27] We have considered the submissions advanced by Mr Oliver and have been unable to identify any sustainable public interest grounds. Mr Oliver has not satisfied us that the Decision raises any issues of importance or of general application, nor has Mr Oliver identified any decisions of a similar nature to demonstrate that this Decision is disharmonious with other decided cases on extension of time applications.

[28] We do not consider the grant of permission to be in the public interest.

[29] To the extent that the submissions raise any contentious or appealable error, we do not consider they are seriously arguable. The Decision's findings are consistent with the facts before the Deputy President at first instance.

[30] The Decision has been made in accordance with the statutory tests and applicable case law.

[31] We do not consider there is any basis upon which permission to appeal should be granted. The Appellant's application for permission to appeal is therefore dismissed.

[1] [2021] FWC 701.

[2] Applicant's 'permission to appeal' outline of submissions, dated 30 December 2020.

[3] Question 2.1 of the Appellant's Form F7, dated 3 March 2021.

[4] 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.

[5] 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].

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

[7] 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].

[8] [2010] FWAFB 5343, 197 IR 266 at [24] - [27].

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

[10] 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].

[11] [2018] FWCFB 901.

[12] Mathew Oliver v Bunnings Group [2021] FWC 701, at [28].

[13] [2021] FWC 701 at [15]- [17].

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