Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2022 FWC 72] of Commissioner Wilson at Melbourne on 18 January 2022 in matter number U2021/11167 - permissions to appeal refused.

[1] Ms Melinda Sutton (Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against the decision of Commissioner Wilson on 18 January 2022 in matter number U2021/11167 (Decision).

[2] The Decision dealt with an application for an unfair dismissal remedy made by the Appellant under s.394 of the Act in which the Appellant alleged that she had been unfairly dismissed by Hepburn Shire Council (Respondent). The application was not made within 21 days after the dismissal pursuant to s.394(2)(a) of the Act and the Commissioner considered whether he was satisfied there were exceptional circumstances so as to allow a further period for the application to be made, pursuant to s.394(3) of the Act.

[3] In his Decision, the Commissioner found that he was not satisfied that there were exceptional circumstances and declined to grant an extension of time under s.394(3) of the Act. Consequently, the Commission dismissed the Appellant's application for an unfair dismissal remedy.

[4] The matter on appeal was listed for permission to appeal only. On 10 February 2022, directions and a notice of listing were issued from the chambers of Vice President Catanzariti, setting the matter down for a hearing on 8 March 2022. Prior to the hearing, the Appellant provided consent for the matter to be determined on the papers. Based on the materials before the Commission, it appears to us that the appeal can be adequately determined on the papers.

[5] For the reasons that follow, permission to appeal is refused.

[6] The Appellant was dismissed from her employment with the Respondent with the dismissal taking effect on 11 November 2021. The unfair dismissal application was filed in the Fair Work Commission (Commission) on 4 December 2021, two days outside the 21 day period set out in s.394(2)(a) of the Act.

[7] S.394(3) of the Act provides that the Commission may allow a further period for the application to be made by a person if the Commission is satisfied that there are exceptional circumstances, taking into account:

• (a) the reason for the delay; and

• (b) whether the person first became aware of the dismissal after it had taken effect; and

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

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

• (e) the merits of the application; and

• (f) fairness as between the person and other persons in a similar position.

[8] The Commissioner considered each of these matters in his Decision.

Reason for the delay - s.394(3)(a)

[9] The Appellant submitted that on the 21st day after her dismissal, being 2 December 2021, she was unable to file her application because she did not have access to her laptop's power cable although concedes she had access to a mobile phone and could have made her application through mobile internet access or phone but did not know she could do so.[1]

[10] The Commissioner concluded as follows in respect of the Appellant's explanation for the delay in filing the application:[2]

"[24] These matters do not amount to an acceptable explanation for the delay in filing the application. Having established, on 2 December 2021, that she was unable to make her application that day, Ms Sutton took no steps to resolve the issue. She knew it was the last day to file within time, and merely waited for Mr Hourigan to return. There is no evidence of phone calls to the Commission about what could be done, nor of an attempt to resolve the issue by searching online using her phone. Despite Mr Hourigan likely returning home the same day as the problem became known there was no attempt to file before midnight, or even the following day when the same problem arose. Instead, the application was made on Saturday 4 December 2021 at 8:05AM.

[25] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances."

Whether the person first became aware of the dismissal after it had taken effect - s.394(3)(b)

[11] The Commissioner found that the Appellant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge an unfair dismissal application. The Commissioner considered this to be a neutral consideration.[3]

Action taken to dispute the dismissal - s.394(3)(c)

[12] The Commissioner found there was no material before the Commission demonstrating that the Appellant took any steps to dispute her dismissal, except for the filing of the application, and that this criterion weighs against a finding of exceptional circumstances.[4]

Prejudice to the employer - s.394(3)(d)

[13] The Commissioner did not identify any prejudice that would accrue to the Respondent if an extension of time were to be granted and found:[5]

"...the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances."

Merits of the application - s.394(3)(e)

[14] In considering s.394(3)(e) of the Act, the Commissioner ultimately found that:

• he considered the Appellant's case was not in the "highly meritorious category";[6] and

• nonetheless, in the absence of full argument of either party's case, this criterion was a neutral consideration.[7]

Fairness as between the person and other persons in a similar position - s.394(3)(f)

[15] In considering s.394(3)(f) of the Act, the Commissioner indicated he was not aware of there being any other person presently before the Commission dismissed by the same employer for similar underlying issues and who has been granted an extension of time for the making of a late application and that this was therefore a neutral consideration to his decision.[8]

[16] In considering the matters he was required to take into account under s.394(3) of the Act, the Commissioner was not satisfied that there were exceptional circumstances and therefore found there was no basis for him to allow an extension of time. The Commissioner therefore dismissed the application.

Principles governing an appeal under s.604 of the Act

[17] The Decision subject to appeal was made under Part 3-2 of the Act. S.400(1) of the Act provides that permission to appeal from a decision made under Part 3-2 of the Act must not be granted unless the Commission considers that it is in the public interest to do so.

[18] Further, s.400(2) of the Act provides that an appeal from a decision made by the Commission in relation to a matter arising under Part 3-2 of the Act can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[19] In Coal & Allied Mining Services Pty Ltd v Lawler, Buchanan J (with whom Marshall and Cowdry JJ agreed) characterised the test under s.400 of the Act as "a stringent one".[9] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[10] The public interest test in s.400(1) is not satisfied simply by the identification of an error or the preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin, 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 instances so that guidance from an appellate court is required, or where the decision at first instance manifests as injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions regarding similar matters."[11]

[20] 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.[12] However, that the Member of the Commission at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[13]

[21] 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.[14] However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.

[22] In addressing s.400(a) of the Act, and by way of summary, the Appellant submitted that it is in the public interest to grant permission to appeal for the following reasons:

• Other unvaccinated employees may have been unnecessarily terminated by their employer when they were legally able to work from home and it is in the public interest for the public to be aware that it is legal to work from home unvaccinated.

• There is a benefit to the community in knowing that the Chief Health Officer's directions need to be interpreted correctly by employers.

• There is a benefit in making it clear what the rights of unvaccinated persons are.

• There is a benefit to the community in understanding the Chief Health Officer's directions as, at present, it appears they are misunderstood in certain cases.

• The public need to be reassured there is consistency in how the Chief Health Officer's directions are understood and implemented.

• The CEO of the Respondent has acted illegally in standing down the Appellant when working from home.

• It is in the public interest that employees are employed, rather than illegally terminated. Terminations place unnecessary burden on health and welfare systems.

• The "Covid-19 Mandatory Vaccinations - FAQs" issued by the Respondent contain errors in fact as acknowledged at paragraph 31 of the decision where the Commissioner states:

"Hepburn's statements to Ms Sutton and staff generally that vaccination was required when working from home is likely contestable and in error."

• It needs to be made clear to the public that even CEOs of organisations can misinterpret the Chief Health Officer's directions.

• The Chief Health Officer's directions provide that it is legal for employees to work from home unvaccinated.

• It is already accepted in the public sphere that the new normal is working from home.

• The Commission has the structure to understand, interpret and then provide feedback into the creation of national public policy.

• There is much community interest as to the outcome of the dispute.

• The appeal decision will provide awareness on how to treat the unvaccinated when working from home with no essential requirement to be work depot based.

[23] In addressing s.400(b) of the Act, and by way of summary, the Appellant submitted that the appeal involved a significant error of fact for the following reasons:

• In making the Decision, the Commissioner relied on witness statements by the CEO of the Respondent that are not factual, especially when considering the merits of the application. In particular, the Appellant submits:

  • the CEO has admitted that his witness statement may be incorrect, stating at paragraph 18 "I acknowledge that this declaration is true and and correct to the best of my knowledge".

  • the CEO's knowledge and understanding of the Appellant's role is factually incorrect. The Appellant takes issue with paragraphs 3, 9 and 15 of the CEO's witness statement:

    • "...and inherent requirement of her role as revenue officer is that Melinda is able to work onsite";

    • "effective tomorrow you are not legally allowed to work per the directions, and please do not work, this includes working at home"; and

    • "...it was a requirement of her role that she be able to work onsite and in the community".

• if it was a requirement of her role to work onsite, at some stage during the first 18 months of the pandemic, she would have required a workers permit to return to onsite work. The Appellant did not need a permit to work onsite during the 18 month period and this proves it was not an essential or inherent requirement that she work onsite.

• The Commissioner placed too much emphasis in the Decision on false statements made by the CEO. These false statements were vigorously contested by Ms Sutton in her application and during the hearing. These false statements of fact have been accepted by the Commission and have "downgraded" the Appellant's "extremely meritorious case".

• A real bias has been shown towards the Respondent by the Commission in accepting the Respondent's statements rather than the evidence of the Appellant.

• If the CEO's knowledge of the facts in the Chief Health Officer's directions were correct, the Appellant's termination would not have occurred. The Commission has accepted this lack of knowledge from the CEO without placing appropriate weight on to what the Appellant says is a "proven fact" that it is not essential or inherent that the Appellant work onsite.

• The Commission had allowed the misinterpretation of the Chief Health Officer's directions by the CEO to be disregarded. This disregard of the misinterpretation and factual errors made by the CEO has prevented the Commission from forming the correct decision.

[24] The materials filed and submissions made by the Appellant focus on the merits of the Appellant's dismissal. They add little to the material that was before the Commissioner who, in considering s.394(3)(e) of the Act, found the merits to be a neutral consideration in the absence of full argument of either party's case.[15]

[25] The Appellant's grounds of appeal have not identified significant error on the part of the Commissioner. Rather, the grounds of appeal are a plea by the Appellant for the Full Bench to re-determine her application for an extension of time in which to file her unfair dismissal application, with a strong emphasis on the merits of her case. The Appellant submits that the Commission attached too much weight to the evidence of the Respondent in its consideration of s.394(3)(e) of the Act, particularly the evidence of the Respondent's CEO, and puts forward her own version of facts contesting various statements made by the Respondent's CEO and accuracy of information provided by the Respondent.

[26] It is well established that at an extension of time hearing it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits of the case for the purposes of taking into account the "merit" criterion, being s.394(3)(e) in unfair dismissal applications.[16] While the Commissioner considered the Appellant's case was not in the "highly meritorious category"[17] based on the materials before him, he did not find that the case was with or without merit and ultimately, and appropriately, found that in the absence of full argument of either party's case, this criterion was a neutral consideration.[18]

[27] More generally, we observe that the Commissioner approached the task of determining the extension of time application by taking into account and weighing each of the criteria within s.394(3) of the Act in arriving at his conclusion. We have not identified any significant error in the reasoning or conclusion reached by the Commissioner. Absent the identification of appealable error, there is no basis to grant permission to appeal.

[28] We do not consider that the Decision raises any issue of importance or general application that would enliven the public interest. It concerned the dismissal of an employee who was found by the Commissioner to have filed an application for an unfair dismissal remedy outside the 21 day period set out in s.394(2)(a) of the Act and that there were no exceptional circumstances that warranted an extension of time being granted. The matter turned on its own facts. There is no diversity of decisions at first instance in relation to the issues raised on appeal, so that guidance from a Full Bench is required. We do not consider that the result of the Decision is counter-intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.

[29] In all the circumstances, we are not persuaded that it would be in the public interest to grant permission to appeal or that the Decision involves a significant error of fact. Accordingly, as required by s.400(1) of the Act, permission to appeal is refused.

[1] [2022] FWC 72, [23].

[9] [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 177, [43].

[10] O'Sullivan v Farrer and another [1989] HCA 61; (1989) 168 CLR 210, [216]-[217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 177, [44]-[46]

[11] [2010] FWAFB 5343, [27]; [2010] FWAFB 5343; (2010) 197 IR 266.

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

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

[14] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140, [82].

[15] [2022] FWC 72, [33].

[16] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[17] [2022] FWC 72, [32].

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