The attached document replaces the document previously issued with the above code on 24 December 2020.

This document has been amended to reflect the correction to the decision published on 25 January 2021 [ [2020] FWCFB 6882].

[2020] FWCFB 6882

Fair Work Act 2009

s.604 - Appeal of decisions

The Hospitals Contribution Fund of Australia Ltd T/A HCF

Appeal against decision [2020] FWC 5293 of Deputy President Mansini at Melbourne on 6 October 2020 in matter number U2020/12399 - Section 394 application for unfair dismissal remedy extension of time denied - Permission to appeal refused.

[1] Mr Evan Skinner has lodged an appeal for which permission to appeal is required against a decision of Deputy President Mansini issued on 6 October 2020.[1] This decision deals with an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act). The Deputy President declined (under s.394(2) of the Act) to extend time to Mr Skinner to file an unfair dismissal application made under s.394 of the Act against The Hospitals Contribution Fund of Australia Ltd T/A HCF (HCF).

[2] Mr Skinner filed his unfair dismissal application on 16 September 2020. In his application, he alleged that he was unfairly dismissed from his employment on 25 August 2020. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days after the dismissal took effect, or within a further period for the application to be made if the Fair Work Commission (the Commission) is satisfied that exceptional circumstances exist.

[3] The Deputy President noted that the application was filed 11 minutes out of time, pursuant to the statutory time limit stipulated in s.394(2) of the Act. In her decision, the Deputy President was satisfied that the reasons for Mr Skinner's delay in filing his application within time were not exceptional circumstances within the meaning of s.394(3) of the Act. Accordingly, the Deputy President concluded that the Commission's jurisdiction was not enlivened, and Mr Skinner's application was dismissed.

[4] On 30 November 2020, we heard Mr Skinner on whether permission to appeal ought to be granted. Mr Skinner represented himself. Permission for the Respondent to be legally represented was refused, although the Respondent's representative was permitted to be in attendance to observe. Ms Wright appeared for HCF.

Legislative Provisions and permission to appeal principles

[5] Section 394(2) of the Act requires that an unfair dismissal application must be made within 21 days of the dismissal or such further period as the Commission may allow under s.394 (3). Mr Skinner's application was filed 11 minutes after the 21 day period expired on 15 September 2020. Accordingly, it was necessary for him to obtain an extension of time to file his application pursuant to s.394(3).

[6] Section 394(3) of the Act provides:

"(3) The FWC may allow a further period for the application to be made by a person

under subsection (1) if the FWC 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."

[7] The meaning of "exceptional circumstances" in s.366(2) of the Act concerning late lodgment of general protections applications (being provisions which are in relevantly identical terms to the provisions of s.394(3) concerning late lodgment of unfair dismissal applications) was considered by a Full Bench of the then-named Fair Work Australia in Nulty v Blue Star Group Pty Ltd [2] (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."

[8] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is an error on the part of the primary decision maker.[3] There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 of the Act provides:

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

(b) made by the General Manager (including a delegate of the General

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."

[9] Subsection 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is "in the public interest to do so". In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench 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 ..."[4]

[10] 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.[5]

[11] This appeal is one to which s.400 of the Act applies. Section 400 provides:

(1) Despite subsection 604(2), FWC must not grant permission to appeal from a decision made by FWC under this Part unless FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part 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."

[12] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as "a stringent one".[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[8]

[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.[9] 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.[10]

[14] In her decision, Deputy President Mansini gave consideration to each of the matters she was required to take into account under s.394(3) of the Act.

[15] In relation to the reason for delay pursuant to s.394(3)(a) of the Act, the Deputy President considered the various reasons advanced by Mr Skinner including that he had begun preparing his application within the 21 day period and within the final hour before the deadline while electronically lodging the application, his internet VPN connection experienced delays, there were connection issues and his VPN was struggling to upload. The Deputy President also noted that Mr Skinner alleged that his internet connection was being attacked. The Deputy President found that technical and computer related issues when attempting to upload material is not unusual or uncommon.[11] In relation to the allegation that the HCF was responsible for attacking his private email or network, the Deputy President found that the materials before the Commission did not establish this.[12]

[16] The Deputy President further considered the explanation that Mr Skinner was incapacitated during the 21 days following his dismissal. The Deputy President accepted Mr Skinner's witness evidence 'that he was stuck in bed for "a few" of the 21 days following his dismissal. He did not produce a medical certificate in support but said he could obtain one.'[13]

[17] The Deputy President noted that the application was filed 11 minutes out of time.

[18] The Deputy President found having regard to s.394(3) of the Act, there were no exceptional circumstances warranting the granting of a further period to file his application. The Deputy President considered all of the relevant considerations of s.394(3) and concluded her decision with the following:

"[24] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances when considered individually or together. The absence of an acceptable or reasonable explanation for the delay weighs strongly against a finding of exceptional circumstances, whereas the action taken to dispute the dismissal weighs only slightly in favour and the other factors are at best neutral. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time."

[19] Mr Skinner submitted material in support of his extension of time application which included material that was before the Deputy President. Further, Mr Skinner submitted amongst the material a medical certificate, a submission relating to fairness as between the person and other persons in a like position and a submission in response to the Respondent's outline of submissions. We have considered the matters raised by Mr Skinner in writing and during the hearing. Broadly we understand the appeal grounds to be:

• the Deputy President's decision concerning sections 394(3)(a), (c), (d), (e) and (f) was in error, was not considered properly or was an example of bias;

• the reasons given by Mr Skinner were exceptional reasons for an extension of time of his unfair dismissal application;

• the evidence on which the Deputy President relies is "baseless and points to an error of law and fact"[14];

• failure to grant an extension of 11 minutes (or 660 seconds as described by Mr Skinner) is harsh, unjust, unreasonable, unfair and manifests an injustice; and

• the 11 minute delay had not been considered in any meaningful way.

[20] The test of exceptional circumstances in relation to extensions of time to lodge unfair dismissal applications under s.394(3) establishes a "high hurdle" and a decision whether to grant an extension of time involves broad discretion.[15] Therefore it is necessary that an application for permission to appeal against a decision under s.394(3) demonstrates that there is an appealable error of the type described in House v King.[16]

[21] In relation to the Deputy President's consideration of s.394(3)(a) she correctly reasoned that the delay after the 21st day is relevant in regard to an extension of time application however, the circumstances from the time of the dismissal must be considered when assessing whether the reasons for the delay beyond the 21 day limit are exceptional. The Deputy President considered the evidence and noted the lack of medical evidence to support the contention that Mr Skinner was stuck in bed for "a few of the 21 days"[17] or that he was "shaken, experienced anxiety, stress and intimidation".[18]

[22] Mr Skinner's evidence at hearing was that he started to prepare the application straight away and then as the deadline approached, he decided to submit the application on the last day. It was at the eleventh hour that he experienced internet VPN issues which resulted in a late application. The relevant extract from the transcript is a question from the Deputy President to Mr Skinner as follows:

"I do just have one question, which is when you talk about the reasons for your delay you mention that there was - well, this is how you say it. You say, "I had previously begun my application for unfair dismissal within the 21-day period." When did you begin to prepare your unfair dismissal application?---Straightaway. So straightaway I started organising all the evidence that I'd previously had, so I got my folder together with all of that. I'd sent an email off to Adam Windley letting him know that I disapproved of the dismissal and I thought it was unfair, and then from there it was about 10 days in I started doing the application. I was having mental health difficulties at the time as we're still in lockdown here in Melbourne, and then that got delayed, so then coming closer to the deadline, then on the last day I then decided, no, I would submit it and I went back to then try and submit it, and then from about 11 till 12 my Internet VPN was having issues and it wasn't submitting. So it had actually got to the final stage but it wasn't submitting for the upload, and then after disconnecting and reconnecting it's finally gone through, but then that was at 12.11, so it was 11 minutes past the time for it being registered."[19]

[23] In cross examination, Mr Skinner proceeds to explain that he became aware of the 21 day statutory time frame around the last day of his employment and that he had experienced a few days where he was stuck in bed, on the floor due to stress and anxiety. He stated that he had been in contact with doctors but provided no evidence of his incapacity to file the application within the required time frame.[20]

[24] During cross examination, Mr Skinner stated that he had concerns over the technology that was installed on his computer and phone, suggested his VPN was attacked, but also admitted to have experienced slow connectivity in the 2-3 months leading up to his dismissal.[21]

[25] Allegations of deliberate intervention of his VPN by HCF to limit his ability to submit his unfair dismissal application on 15 September 2020, was submitted by Mr Skinner on 3 October 2020. Attached to the email, Mr Skinner provided a report that showed 10 attempts to sync with his computer. Mr Skinner alleged this evidence was relevant to his argument that there were exceptional reasons for his delay in his application.[22]

[26] Mr Skinner relies on the grounds that the Deputy President was in error, did not properly consider the evidence or relied on baseless information. We do not agree with Mr Skinner. Not only did the Deputy President consider the written submissions, oral evidence and the additional late material, she did so consistently with the legal principles.

[27] There was no probative evidence on which to rely to justify the alleged incapacity to file the application within the 21 day period, and the evidence relating to alleged hacking of his VPN does not support the contention that it prevented the filing in the last hour on 15 September 2020. Further, the evidence does not support the contention that the alleged hacker was HCF.

[28] We note Mr Skinner's submissions in support of his permission to appeal was expressed in stronger terms, and the evidence of the medical certificate including documentation from the Talk Shop does not support his submission that his incapacity prevented the filing of the application within the 21 day limit. One of the new documents state that Mr Skinner attended the Talk Shop on 11 May, 21 May and 5 June 2020, all of these dates precede his dismissal. The second new document, a medical certificate from My Clinic dated 19 November 2020, confirms that Mr Skinner a patient from July 2019 to the present day. The medical certificate does not add any weight to the contention that Mr Skinner was so incapacitated due to stress and anxiety that he could not file the application within the required period.

[29] Mr Skinner submits that the Deputy President did not properly consider the evidence when he says that the oral evidence of his incapacity when in bed or on the floor was an example. However, we cannot agree with Mr Skinner on this point, the language in the transcript can only be interpreted by its plain meaning and as no evidence was tendered in support there cannot be any ambiguity to the oral evidence.

[30] The Commission often receives reasons of computer or internet failure and the appearance of computer viruses. All of the reasons submitted by Mr Skinner again without probative evidence before the Deputy President falls within this category of reasons that are not exceptional.

[31] Mr Skinner objects to the weight given by the Deputy President to the action to dispute the dismissal as slightly in favour. He relies on his letter to his manager on 25 August 2020 and says:

"The email I sent to Adam Windley on the day I was unfairly dismissed was clearly the action I took to dispute the dismissal. And as is suggested the commission should have taken into consideration "any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the future." In my email to Mr Windley I advise him that I believe his decision to unfairly dismiss me was a "well constructed dismissal" and that "Lies run sprints, but the truth runs marathons".

While I was obviously being extremely conscious about coming off as discourteous, given that the respondent was claiming that this was their reason/excuse for firing me while our state was in lockdown, I sent this email as an action taken to put my employer on notice, that the issues in contest had not reached finality and would be contested in the future hence my concluding comment in the email: "The truth runs marathons"."[23]

[32] We do not agree with Mr Skinner that his email contests the dismissal and places the HCF on notice that his dismissal is an active dispute. At best, we agree with the Deputy President that the email expresses disagreement. Action taken by an employee to challenge the dismissal other than the filing of an unfair dismissal application favours an extension of time.[24] Despite the uncertain language in Mr Skinner's email, the Deputy President gave it some weight to the consideration in s.394(3)(c).

[33] Mr Skinner critiques the Deputy President's reasoning concerning prejudice, a consideration required by s.394(3)(d). The principles in this consideration requires the Commission to weigh the prejudice to the employer against granting an extension of time. A long delay gives rise to a general presumption of prejudice,[25] and the Respondent must produce evidence to demonstrate prejudice.[26] However, the absence of prejudice does not weigh in favour of exceptional circumstances for an extension of time.

[34] Mr Skinner objects that the Deputy President did not repeat the contentions between the parties regarding merits of the application in her decision. Mr Skinner contends that the Deputy President's failure to make any reference to any of the material submitted on merit is an error in coming to her decision in addition to her assessment that merit was a neutral consideration.

[35] Before an unfair dismissal application can be determined the Commission is required to consider procedural matters including whether the applicant had filed within the statutory time frame and if not, whether there are exceptional circumstances to permit an extension of time. Section 396 reaffirms that initial matters are to be considered before the merits of the application can be heard. While s.394(3)(e), requires the Commission to take into account the merits in its decision whether there are any exceptional circumstances to grant an extension of time, where the merits are contested, no findings can be made without hearing the evidence. Evidence on merit is rarely called into an extension of time application, consequently the Commission "should not embark on a detailed consideration of the substantive case."[27]

[36] The final consideration Mr Skinner refers to in his grounds for appeal concerns fairness as between the person and other persons in a similar position pursuant to s.394(3)(f). Mr Skinner tendered on 20 November 2020 a submission where he compares his 11 minute delay with other matters before the Commission where an extension of time was granted. Applications generally turn on their own facts. This consideration concerns consistency with other relevant cases to ensure fairness between the applicant and other persons. Further, this consideration requires all relevant circumstances to be taken into account.

[37] The Deputy President correctly determined that the consideration relates to matters currently before the Commission or to matters previously decided. She determined that she was unaware of any cases that were relevant to the question of fairness between Mr Skinner and other persons in a similar position.

[38] Mr Skinner misconceives the delay of his application as a comparison with other matters based on the period of delay. Applications for unfair dismissal have a 21 day time limit for their filing and while extensions may be granted where there are exceptional circumstances, the bar is high and late filing should not be encouraged. The cases that Mr Skinner refers to in his submission are not comparable to the facts of his case. The cases concern facts not contested regarding merit, medical reports tendered in evidence supporting the delay, consideration of probative evidence or a combination of the considerations that weigh strongly in the applicant's favour. We are not satisfied that the cases Mr Skinner refers to in his submissions relate to his matter.

[39] Having considered the matters raised by Mr Skinner with respect to permission to appeal, we are not persuaded that the public interest is enlivened. We do not consider the Deputy President's conclusion was outside of the outcomes reasonably open to her, nor that she did not consider the material before her, or that there was error on principle or facts.

[40] For the reasons above we are not satisfied that the matters set out in the grounds for appeal raise any arguable case of material error in relation to any aspect of the decision or that the conclusion reached by the Deputy President raises sufficient doubt to warrant reconsideration. We do not consider the grant of permission to appeal to be in the public interest.

[41] Accordingly, permission to appeal is refused.

[1] [2020] FWC 5293.

[2] [2011] FWAFB 975.

[3] 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.

[4] [2010] FWAFB 5343, 197 IR 266 at [24]- [27].

[5] 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].

[6] [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 177 at [43].

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

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

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

[10] 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].

[11] [2020] FWC 5293 at [15].

[14] Mr Skinner's outline response received on 27 November 2020.

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

[16] [1936] HCA 40, 55 CLR 499.

[17] [2020] FWC 5293 at [13].

[18] Written submission of Mr Skinner to Mansini DP dated 28 September 2020 (Appeal documents).

[20] Transcript at PN 62 - PN64 and PN66.

[22] Email with attachment from Mr Skinner to Mansini DP on 3 October 2020.

[23] Mr Skinner's outline response received on 27 November 2020.

[24] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[25] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

[26] Jervis v Coffey Engineering Group Pty Limited PR927201.

[27] Kyvelos v Champion Socks Pty Ltd, Print T2421 (AIRCFB, Guidice J, Acton SDP, Gay C, 10 November 2000).

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