Fair Work Act 2009

s.604 - Appeal of decisions

McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group

Appeal against a Decision [2017] FWC 1412]] and Order [PR590913] of Senior Deputy President Dean at Sydney on 14 March 2017 in matter number U2016/12721.

[1] James Bennett has applied for permission to appeal a finding and order issued by Deputy President Dean on 14 March 2017[1] (Order). The effect of the Order was to refuse Mr Bennett an extension of time to lodge an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (FW Act) and to dismiss, pursuant to s.587(1)(a) of the FW Act, the unfair dismissal remedy application which Mr Bennett had lodged on the basis that it had not been made in accordance with the FW Act. The Deputy President published reasons for the decision embodied in the Order on 14 March 2017[2] (Decision).

[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) 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:

(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

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

[3] The factual background is as follows:

1. On 17 August 2015 Mr Bennett commenced employment with McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group (McCarrolls).

2. On 23 September 2016 by letter from his agent, Bruce Jenkins, Mr Bennett resigned from his employment. He alleged the resignation constituted a constructive dismissal because he had been the victim, he said, of repeated bullying and threats.

3. 21 days from the cessation of the employment relationship was 14 October 2016.

4. On Sunday, 16 October 2016 Mr Jenkins filed an Unfair Dismissal Application on behalf of Mr Bennett. It was filed from Istanbul, Turkey.

5. By reason of operation of the Rules of the Commission the Unfair Dismissal Application was deemed to have been received on 17 October 2016. That is to say it was 1 day outside the 21 day statutory time limit.

6. Mr Jenkins, both before the Deputy President and us, submitted that:

   1. he was entirely at fault in not filing the application on time,

   2. Mr Bennett was blameless, and

   3. it was a case of representative error.

[4] Having found that Mr Bennett's application was lodged outside the statutory time limit the Deputy President determined that Mr Bennett required an extension of time to be granted under s.394(3) if his application was to progress.

[5] In the Decision, the Deputy President dealt with all the matters she was required to take into account pursuant to s.394(3) of the FW Act.

[6] In relation to the reason for the delay (s.394(3)(a)), the Deputy President noted that the reasons for the delay advanced by Mr Bennett was representative error.[3]

[7] The Deputy President then cited the relevant authorities[4] including about the need to have regard to the professional qualifications and expertise of the representative concerned in order to determine if it was reasonable for a party to rely upon them to act on their behalf. The Deputy President then noted that Mr Bennett's agent (Mr Jenkins) "was not a lawyer and was not experienced in industrial law, [but rather] involved in corporate finance."[5] Having considered the authorities and applied them to the circumstances before her, the Deputy President concluded that,

... it was not reasonable for the Applicant to have relied upon a friend/agent who was not experienced in industrial law to file his application on time, in circumstances where he had been told by Mr Jenkins that he had to travel to Europe for urgent business.[6]

[8] Consequently, the Deputy President determined there was not "an acceptable reason for the delay" and that this "weigh[ed] against the granting of an extension of time."[7]

[9] Before us Mr Jenkins cavilled with the finding of the Deputy President that Mr Bennett was not entitled to rely upon him as a representative. Mr Jenkins submitted that representative error was an acceptable reason for the delay and that this factor should have weighed in favour of granting Mr Bennett an extension of time. What is apparent from the submission is that it amounts to little more than a preference for a different outcome. That is not the purpose of an appeal.

[10] Mr Jenkins was also asked by us whether Mr Bennett had submitted before the Deputy President, evidence of a medical condition that had impacted his ability to prepare and lodge his application. While Mr Jenkins subsequently referred us to a letter Mr Bennett had addressed to the Respondent outlining allegations of bullying behaviour and its consequences, it predated the termination of his employment and did not therefore directly attribute the delay in the filing of the application to a medical condition.

[11] In relation to when Mr Bennett first became aware of the dismissal after it had taken effect (s.394(3)(b)), the Deputy President found that,

there is no dispute that [Mr Bennett's] employment ended on 23 September 2016 and that he was aware of this. This weighs against the granting of an extension of time.[8]

[12] In the appeal before us no issue was taken with this finding.

[13] In relation to whether Mr Bennett had taken any action to dispute the dismissal (s.394(3)(c)), the Deputy President determined that,

The Applicant's resignation letter clearly put the Respondent on notice that he intended to claim that his resignation was a constructive dismissal. This weighs in favour of granting an extension of time.[9]

[14] In the appeal before us no issue was taken with this finding.

[15] In relation to whether there was any prejudice to the employer (s.394(3)(d)), the Deputy President said she was,

... not persuaded that granting an extension of time would result in a prejudice to the Respondent. The lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.[10]

[16] In the appeal before us no issue was taken with this finding.

[17] In relation to the merits of the application (s.394(3)(e)), the Deputy President determined that she was,

not able to make a final determination of the merits in this matter as there are factual disputes between the parties. [She] therefore consider[ed] the merits to be a neutral consideration.[11]

[18] In the appeal before us Mr Jenkins submitted that the Deputy President ought to have found that this factor weighed in favour of granting an extension of time.

[19] However, it is well established that for the purpose of determining whether to grant an extension of time to an applicant the Commission "should not embark on a detailed consideration of the substantive case."[12] Again, Mr Jenkin's submission amounted to little more than a preference for different outcome.

[20] In relation to fairness between Mr Bennett and other persons in a similar position (s.394(3)(f)), the Deputy President determined it was a neutral consideration. In the appeal before us no issue was taken with this finding.

[21] Having considered all of the matters required by the FW Act the Deputy President decided she was:

[33] not satisfied that there were exceptional circumstances which would warrant [her] granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[22] An order to that effect was issued with the Decision.

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

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the 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.

[24] 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(1) as "a stringent one".[13]

[25] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment[14]. 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 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.[15]

[26] 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.[16] 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.[17]

[27] Mr Bennett's Notice of Appeal identified 5 grounds of appeal which can be summarised as follows,

1. That the Deputy President erred in not granting an extension of time in circumstances where there was representative.

2. The Deputy President did not address or give proper weight to the submissions made on behalf of the applicant.

3. The Deputy President did not address or give any weight to the authorities relied upon by the applicant.

4. The Deputy President erred in accepting submissions made by the respondent which had been filed late.

5. The decision was unfair and unjust.

[28] It is not immediately apparent how the grounds of appeal give rise to a House v King[18] error. It is not clear how it could be argued the Deputy President:

1. acted upon a wrong principle,

2. allowed extraneous or irrelevant matters to guide or affect her,

3. mistook the facts,

4. did not take into account some material consideration, or

5. exercised her discretion in a way that was unreasonable or plainly unjust.

[29] However, at this point we are only concerned with whether we should grant permission to appeal. In his Notice of Appeal Mr Bennett submitted that it is in the public interest for the Commission to grant him permission for the appeal because (in summary):

1. There are public policy issues relating to the denial of the remedy arising out of mere administrative errors.

2. The errors or oversight in this case were not the fault of the applicant.

3. It would be unjust and unfair not to allow Bennett to have his unfair dismissal application determined.

4. Mr Bennett suffered financial loss and psychological harm as result of the respondent's action.

5. The public may not view as reasonable a decision of the Commission to deny remedy in circumstances of minor administrative error or oversight.

6. The representative of the applicant is not a lawyer and is not an experienced practitioner in the Commission.

7. The underlying unfair dismissal application has not been heard section 400(1) should not apply.

[30] In advance of the hearing before us Mr Jenkins filed submissions about what, he submitted, enlivened the public interest in favour of Mr Bennett. Those submissions expanded upon those matters contained in the Notice of Appeal. Further, Mr Jenkins submitted that,

It is in the public interest to grant permission to appeal because this matter concerns important questions concerning the rights of represented applicants in circumstances where they have relied on paid agent to undertake work; the matter concerns an important question about the proper construction of the general application of s.394 and in circumstances of representative error; and a decision in the matter has significant consequences for applicants in the Commission, in particular in this appeal decision being inconsistent with other recent decisions of the FWC.

[31] We reject this submission. Mr Bennett's matter does not give rise to issues of importance and or general application. It is simply a case were the Deputy President exercised the discretion that was open to her to exercise in a manner that Mr Bennett and his agent, Mr Jenkins, did not like. Further, having considered all that has been put before us we are not satisfied that this matter:

1. is in a class where there is a diversity of decisions at first instance so that guidance from an appellate bench is required;

2. is one 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.

[32] We are not persuaded that Mr Bennett has established that it is in the public interest to grant permission to appeal. The Deputy President addressed the relevant statutory criteria and we are not persuaded that there is an arguable case that the Decision or Findings and Order were attended by any error of principle or any significant error of fact.

[33] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.

[1] PR590913.

[2] [2017] FWC 1412.

[3] [2017] FWC 1412, at [12].

[4] Davidson v Aboriginal and Islander Child Care Agency (1998) 105 IR 1, Officeworks Ltd v David Parker [2014] FWCB 5779.

[5] [2017] FWC 1412, [18].

[6] [2017] FWC 1412, [20].

[7] [2017] FWC 1412, [23], [24].

[8] [2017] FWC 1412, at [25].

[9] [2017] FWC 1412, at [26].

[10] [2017] FWC 1412, at [27].

[11] [2017] FWC 1412, at [29].

[12] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

[13] [2011] FCAFC 54; (2011) 192 FCR 78 at [43].

[14] 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].

[15] [2010] FWAFB 5343 at [27], 197 IR 266.

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

[17] 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 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 at [28].

[18] [1936] HCA 40; (1936) 55 CLR 499, (17 August 1936).

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