//
[2020] FWCFB 6492
General information, not legal advice.
Fair Work Commission (Full Bench)
2020-12-02
Original judgment source is linked above.
[22] The Applicant's evidence was relevantly that he was unaware of the 21-day time limit to make the application. Separately he says he did not believe he could be terminated until he received this in writing.
[23] Whilst the Applicant may have been seeking some sort of review of the decision to terminate his employment and senior management did meet him there is no suggestion and no evidence the Respondent at any time encouraged him to believe the Respondent would reconsider its decision or that he had some right to an internal appeal of the termination.
[24] The Applicant's desire for the Respondent to review its decision and his discussion with Mr Grace on 14 February 2020 is not an acceptable reason for the delay. In any event there is no reason why his approach to the Respondent's senior management prevented him from making his unfair remedy application within time.
[25] It certainly would not be uncommon for an employee who is terminated to be confused about the effective date of termination. The fact that the Applicant was confused about this is not an exceptional circumstance nor is it an acceptable reason for the delay.
[26] Separately it has been held many times in this jurisdiction that the fact an employee is unaware of the legal requirement to file an application of this particular type within 21 days is not an acceptable reason for delay in filing.
[27] It is an unfortunately common experience for an employee to be distressed having been terminated from their employment and no longer receiving any income. This is not however an exceptional circumstance nor is it an acceptable reason for the delay in making an application.
[28] Whilst the Applicant may have believed his employment could not be terminated until he was given a letter to that effect by the employer, holding this erroneous belief does not amount to an acceptable reason for the delay.
[29] Having considered the reasons for the Applicant not making this application within 21 days I am not satisfied that there are any acceptable reasons for the delay in this case."
[7] As to s 394(3)(b), the Commissioner found that the Appellant became aware of the dismissal as follows:
"[30] The Applicant was advised in the meeting on 30 January 2020 that he was dismissed with effect that day."
[8] In relation to s 394(c), the Commissioner found the Appellant did arrange a meeting with senior management after his employment was terminated and during that meeting asked what he could say that would change the Respondent's decision. In relation to s 394(3)(d), the Commissioner did not accept there was prejudice to the Respondent if a further period to apply was allowed. In relation to the merits of the application, the Commissioner's assessment for the purpose of s 394(3)(e) was as follows:
"[33] There is significant disagreement between the parties as to the merits of this application. On the limited material before the Fair Work Commission at this stage it is not possible to form a view.
[34] As is often the case without the matter being fully argued it is difficult for the Fair Work Commission to determine whether the merits of the application do or do not support an extension of time. Consequently, I view the merits of the application as a neutral factor in this decision."
[9] The Commissioner found that s 394(3)(f), in relation to comparative fairness, was a neutral consideration. The Commissioner's overall conclusion was that he was not satisfied that there were exceptional circumstances in the Appellant's case warranting a conclusion that he should exercise his discretion to allow a further period to lodge his application. The Commissioner said:
"[36] The onus is on the Applicant to persuade the Fair Work Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.
[37] In this instance there is no acceptable reason for the delay, which weighs against granting this application. In the Applicant's favour however he did approach senior management about his dismissal. The other factors are neutral."
[10] Mr McGuire contends in his appeal submissions that this is an unusual case and "not a case that should be looked at in the context of hard and fast rules that may have application to other matters" because:
it was effectively a seven-day extension of time to lodge an unfair dismissal application;
the Appellant is an indigenous male person whose mind was seriously confused as to the status of his employment following termination;
he had requested reconsideration of the employer's decision; and
he believed the termination did not validly take effect until the end of an internal review process.
[11] The merits of the application for unfair dismissal relief are a matter to be taken into account in weighing exceptional circumstances for further time under s 366(2)(e). The Appellant contended that there was an error of law in the Commissioner not considering the merits of the Appellant's case in detail, with a "proper review or consideration of the merits". It was also contended in submissions that "the failure to call substantive evidence was also an error of law", and at the appeal hearing, it was submitted that the crux of the grounds of appeal was that the merits were not considered.[1]
[12] In relation to public interest, the Appellant contended that permission to appeal should be granted on the basis that:
The decision manifests an injustice as the Appellant, who is an indigenous male person who was confused as to the status of his employment, even after termination. This suggests a degree of special disadvantage that ought to have been taken into account in any consideration as to whether or not there are so special circumstances to warrant a short seven-day extension of the 21-day period.
General considerations ought to apply in the case of those with an identifiable special disadvantage raising issues of importance, requiring some guidance. That is, the Commissioner did not adequately deal with and dispose of the question of whether or not there have been special circumstances to warrant an extension of time and that the matter was not correctly decided in principle.
[13] Mr Smith for the Respondent made the following submissions at the hearing of the appeal, contending that there was no appealable error:
An application to hear an out of time claim is not an opportunity for the Commission to rehear the merits or to consider the merits in any detail.
Mr McGuire had a clear understanding in his own mind that his employment with Sandfire had been terminated on 30 January 2020.
The appeal raises for the first time, special disadvantage of the Appellant. No special memory or recollection issue had been raised until the appeal. There was no evidence at any stage of the proceedings, including at the appeal, that Mr McGuire was labouring under a special disadvantage or some unique or different cognitive impairment over and above what the Commission has always recognised as the usual upset or distress caused by an unfair dismissal or termination.
• The Respondent referred to Jason Cannon v Quad Services (Cannon)[2], where the Full Bench identified what is required to be demonstrated where an Applicant seeks to rely on special impairment or special disability or cognitive concerns. The Respondent asserts this case is authority that an Applicant who seeks to rely on special disadvantage must establish that they are affected by more than usual stress or the inability to actually address their termination.
[14] An appeal under s 604 of the FW 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.[3] There is no right to appeal and an appeal may only be made with the permission of the Commission.
[15] 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."
[16] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others,[4] Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as "a stringent one". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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."[6]
[17] 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.[7] 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.[8]
[18] 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 of the Commission to conduct a detailed examination of the grounds of appeal.[9] However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[19] The test of "exceptional circumstances", in relation to extensions of time to lodge applications under s 394(3), establishes a "high hurdle" for an application for an extension, and a decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion.[10] Therefore it will be necessary, in an application for permission to appeal against a decision made under s 394(3), to demonstrate that there is an arguable case and that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King[11], namely that the decision-maker has acted on a wrong principle; has mistaken the facts; has taken into account an irrelevant consideration or failed to take into account a relevant consideration; or has made a decision which is unreasonable or manifestly unjust. Additionally, where an error of fact is alleged, s 400(2) requires that it must be a significant error of fact. The overriding public interest requirement of s 400(1) remains.
[20] We do not consider that the Appellant has, in his notice of appeal, his submissions, or at hearing, identified any error of the kind described in House v The King.[12] He does not identify that the Commissioner's decision involved any error of fact (let alone any significant error of fact), or that the Commissioner failed to take into account any relevant consideration or had regard to any irrelevant consideration, or that there was any error of principle. The Appellant's appeal, in substance, involves no more than an invitation to us to determine for ourselves whether he should be granted an extension of time, and does not advance any contention of error of the type necessary for an appeal under s 604 to be reasonably arguable. We are not satisfied that the grant of permission would be in the public interest, for the following reasons.
[21] The Commissioner had express regard in his decision to all of the matters required to be taken into account under s 394(3), and his decision involves an accurate summation of the evidence before him as it relates to each consideration. It is not reasonably arguable that the discretionary judgment made by the Commissioner under s 394(3) was unreasonable or unjust; indeed, we consider that the Commissioner's conclusion on the basis of the material before him was unremarkable.
[22] In respect of the reason for the delay (s 394(3)(a)), the Appellant submits that the reason for the delay was a serious confusion on the part of the Appellant, who is an indigenous person, as to the status of his employment. The Commissioner's finding, based on the Appellant's own evidence, was the Appellant knew that his employment was being terminated and further the Appellant's evidence was he was told he would no longer be working for the Respondent.[13]
[23] On our view the Commissioner properly found the Appellant knew his employment was terminated effective 30 January. The Appellant asserts an identifiable special disadvantage of as an indigenous person, in particular, the Appellant asserts special memory and recollection issues.
[24] These issues were raised for the first time in the appeal and were not raised at first instance before the Commissioner. The usual principle is that a party should not be permitted to argue a case on appeal which it did not raise at first instance, and that permission to appeal would not be granted to permit this to occur. The exception to this principle, namely where the new argument raised by an appellant involves a pure question of law the determination of which could not be affected by any evidence which the respondent might have adduced had the point been agitated at first instance, is not applicable here.[14]
[25] Further, the Appellant's new case is substantially factually-based and would require him to adduce evidence to support his assertions concerning his cognitive issues and the consequences for his capacity to file his unfair dismissal application within the required time. However, he has not sought to do so. Even if the Appellant sought leave to adduce new evidence, it is unlikely that we would grant such leave. The criteria stated in Akins v National Australia Bank[15] in relation to adducing new evidence on appeal are usually applied by this Commission. They are: (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that there must be a high degree of probability that there would be a different verdict; and (3) the evidence must be credible.
[26] There is no apparent reason why evidence concerning the Appellant's cognitive issues or special disadvantage which he now asserts affected his ability to file his unfair dismissal application within the required time, could not have been adduced at first instance. Further, the credibility of such evidence would be subject to some doubt given that Mr McGuire filed two statutory declarations in the proceedings at first instance setting out what he contended were the reasons for the delay in filing his unfair dismissal application, and neither asserted that special memory or recollection issues, as a reason relied upon to explain the delay.
[27] As to the Commissioner's conclusion that the Appellant's belief that his employment could not be terminated until he received notice in writing, was an erroneous belief and was not an acceptable reason for the delay, the Commissioner noted that is not uncommon for employees to be confused about the effective date of dismissal. The issue on appeal is whether this conclusion was open to the Commissioner in these circumstances, including where the Appellant raises special disadvantage.
[28] The special disadvantage was described by the Appellant's representative as a low-level cognitive impairment impacting upon the Appellant's understanding of what really happened.[16] No evidence of memory or recollection issues was raised at first instance or in this appeal: the submissions merely assert impairment. Assessment of exceptional circumstances is objective and requires relevant evidence.[17] There was no evidence which required the Commissioner or this Full Bench to consider what was described in Cannon as a "heightened risk of confusion".[18] The Commissioner's conclusion, that the Appellant's erroneous belief was not an acceptable reason for the delay, was open to him and is consistent with the case authorities.[19]
[29] Having found that the Appellant, on his own evidence, knew his employment was terminated effective 30 January 2020, it was open to the Commissioner to conclude that the Appellant had not provided acceptable reasons for the delay. The Commissioner's conclusions as to the other s. 394(3) considerations appear to us to be uncontroversial. Indeed, on the merits factor in s 394(3)(e), a point heavily argued by the Appellant, the Commissioner's approach is entirely consistent with the leading authority in Kyvelos v Champion Socks Pty Ltd (Kyvelos)[20] where the Full Bench considered the similar predecessor provision of s 349(3)(e) and held that:[21]
"Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice."
[30] The Full Bench in Kyvelos also considered that there is a practical reason for not calling evidence on the basis that it would serve as encouragement to Applicants seeking extensions of time to put the whole of their evidentiary case and seek to cross-examine the Respondent's witnesses to reduce the possibility of an adverse finding on the merits, which would lead to unjustifiable delay and expense.
[31] The Commissioner did no more than declare the merits to be neutrally balanced, noting the significant disagreement between the parties as the merits of the application, and properly supported this assertion on the basis that there was limited material before the Commission.
[32] The Appellant's matter turned on its own facts. His appeal raises no question of law or issue of importance or general application. The principles to be applied under s 394(3) have been established in a number of Full Bench authorities, and those principles were applied in an orthodox way by the Commissioner.
[33] Because we are not satisfied that the grant of permission to appeal would be in the public interest, permission must be refused in accordance with s 400(1) of the FW Act.
[3] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[4] [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43]
[5] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 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, 192 FCR 78, 207 IR 177 at [44]- [46]
[6] [2010] FWAFB 5343, 197 IR 266 at [27]
[7] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[8] 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]
[9] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[10] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]
[14] Nilsen (SA) Pty Ltd v CEPU [2016] FWCFB 3119 at [13]- [15]
[15] [1994] 34 NSWLR 155 at 160.
[17] Jason Cannon v Quad Services [2019] FWCFB 2097; Alexander Mirow v Suez Pty Ltd [2020] FWCFB 3169.
[18] Arising in that case from the Applicant's brain tumour: Cannon v Quad Services [2019] FWCFB 2019 at [27].
[19] Ho v Professional Services Review Committee No 295 [2007] FCA 388 (26 March 2007) at para. 25; citing R v Kelly [1999] UKHL 4; [2000] QB 198, at p. 208; cited in N at [27]lty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Lawler VP, Sams DP, Williams DP, 16 February 2011) at para. 13, [(2011) 203 IR 1].
[20] Print T2421 (AIRCFB, Guidice J, Acton SDP, Gay C, 10 November 2000) at [14].
[21] s. 170CE(8) of the repealed Workplace Relations Act 1996. Emphasis added.
Printed by authority of the Commonwealth Government Printer
Mr John McGuire
Sandfire Resources NL [2020] FWCFB 6492
(2011) 203 IR 1