Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2018] FWC 7722 of Deputy President Kovacic at Canberra on 20 December 2018 in matter number C2018/6015 - permission to appeal refused.

[1] Mr Misconi has applied for permission to appeal and appeals a decision[1] made by Deputy President Kovacic on 20 December 2018 (the Decision) in which the Deputy President declined to grant his application for an extension of time to lodge an application for a general protections remedy under s.365 of the Fair Work Act 2009 (Cth) (the FW Act). The matter was listed for hearing in respect of both permission to appeal and the merits of the appeal.

[2] Mr Misconi was employed by Negri Contractors (Vic) Pty Ltd (the Respondent) as a Quality, Safety and Environment Manager from 2 March 2018 until his dismissal on 24 September 2018. Mr Misconi filed his general protections dismissal application in the Commission on 26 October 2018 and in that application identified the date of his dismissal as 24 September 2018. The Deputy President found that the application was filed 11 days after the 21 day statutory time period and that it was therefore necessary for Mr Misconi to obtain an extension of time under s.366(2).

[3] Mr Misconi made an application to extend the time within which he could make his general protections application. The application was heard on 19 December 2018 and the Decision published on the following day. The Deputy President refused an extension of time because he was 'not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2)'.[2]

[4] An appeal under s.604 is 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.

[5] 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.[4] The public interest is not satisfied simply by the identification of error,[5] or a preference for a different result.[6]

[6] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. 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.[7] 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.[8] 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.[9]

[7] We propose to say something about s.366 first, before turning to the grounds of appeal.

[8] 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).

[9] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2). 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.[10]

[10] 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.'

[11] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension.[11] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[12]

[12] 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[13] (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)

[13] Generally speaking, 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.[14]

[14] We now turn to the grounds of appeal.

[15] Mr Misconi's grounds of appeal may be summarised as follows:

(i) There was no delay in his application because he continued to communicate with the Respondent to try to resolve the matter until 23 October 2018.

(ii) The dispute is between him and Mr Ian Denson, whose counter arguments are allegedly fabricated, and the merits of which were not addressed at first instance.

(iii) There was no 11 day delay in lodging the application because it was dated 25 October 2018 and Mr Misconi had made several phone calls to the Commission for advice.

(iv) He was not aware of the 21 day time limit to lodge an application under s.366 of the FW Act.

(v) The Decision did not canvass all evidence provided by Mr Misconi.

(vi) His application for orders requiring the Respondent to produce documents supporting the merits of his application was not granted.

(vii) At the hearing on 19 December 2018 he was not given the opportunity to provide further evidence relating to alleged bullying.

(viii) The Deputy President did not appropriately consider the merits of his application or the consequences to him if the matter remains unresolved.

[16] Grounds (i), (iii) and (iv) concern the delay in lodging the application and the reasons for that delay.

[17] Mr Misconi contends (at (i) above) that there was 'no delay' in the filing of his application 'because he continued to communicate with the Respondent to try and resolve the matter until 23 October 2018'. This submission erroneously conflates the fact of a delay in the filing of an application with the reasons for that delay.

[18] Whether the application was filed within the statutory timeframe is a question of fact. The date of Mr Misconi's dismissal was 24 September 2018 and the 21 day period expired on 15 October 2018. Mr Misconi's general protections application was lodged on 26 October 2018. Contrary to Mr Misoni's submission, the Deputy President correctly found that Mr Misconi's application was lodged 11 days outside the statutory timeframe. Mr Misconi's attempts to resolve the dispute amicably does not alter the fact that his application was filed outside the statutory time period.

[19] Section 366(2)(a) requires the Commission to take into account 'the reason for the delay' in deciding whether there are 'exceptional circumstances'. The Deputy President addresses the reason for the delay at [8] to [12] of the Decision:

'[8] In his written submissions Mr Misconi submitted that he was shocked and troubled by his dismissal and the events leading up to it, adding that he needed a few days to settle to consider his options. Mr Misconi further submitted that Mr Negri was overseas until 12 October 2018 and that he anticipated that Mr Negri would "sort this matter" after his return. In summary, Mr Misconi submitted that he decided not to file his application earlier as he thought this might jeopardise reaching an amicable resolution with the Mr Negri.

[9] At the telephone hearing, Mr Misconi essentially reiterated aspects of his written submissions. In response to questions from the Commission Mr Misconi:

• confirmed that he decided not to file his application earlier as he thought doing so might jeopardise the prospects of reaching an amicable resolution with Mr Negri; and

• stated that he became aware of the 21 day statutory timeframe about 10 days after his dismissal.

[10] I note that in his submissions Mr Misconi also submitted that he filed an unfair dismissal application on 25 October 2018 but was advised by the Commission to resubmit the application as a general protections application. Given that 25 October 2018 was also outside the 21 day statutory timeframe I do not consider this to be a material consideration in determining whether or not there are exceptional circumstances warranting the Commission granting a further period of time for Mr Misconi to make his application.

[11] At the telephone hearing the Respondent stated that it disagreed with most of Mr Misconi's oral submissions.

[12] While I note Mr Misconi's desire to resolve the matter amicably this of itself did not preclude him from filing his application within the 21 day statutory timeframe and continuing his efforts to resolve the matter directly with Mr Negri, particularly as Mr Misconi was aware of the statutory timeframe for making an application. Against that background, the reasons for the delay relied upon by Mr Misconi do not support a finding that there were exceptional circumstances in this case.'

[20] Mr Misconi contends (at (iii) above) that there was 'no 11 day delay in lodging the application because it was dated 25 October 2018 and [he] had made several phone calls to the Commission for advice'. Contrary to Mr Misconi's submission, his s.365 application is dated 26 October 2018. We assume that the reference to an application dated 25 October 2018 is a reference to the unfair dismissal application filed by Mr Misconi the day before he lodged his general protections application.

[21] At [10] of the Decision the Deputy President notes that Mr Misconi filed an unfair dismissal application on 25 October 2018 but was advised by the Commission to resubmit the application as a general protections application. As the Deputy President notes, 25 October 2018 was also outside the 21 day timeframe and on that basis he did 'not consider this to be a material consideration'. We do not consider that the Deputy President erred in his consideration of this issue.

[22] Mr Misconi also contends (at (iv) above) that he was not aware of the 21 day timeframe for the lodgement of an application for a general protections remedy under s.365. Two things may be said about this. The first is that the contention now advanced is inconsistent with what was put by Mr Misconi at the hearing on 19 December 2018. During the course of that hearing the Deputy President asked Mr Misconi whether he was aware of the 21 day requirement, as is evident from the following extract from the transcript:

'THE DEPUTY PRESIDENT: Were you aware of the 21 day time frame?

MR MISCONI: To be honest, at the beginning, I'm not aware. Also the first two or three days, it was very - I mean hard on me to just cope with what happened. So I'm not like I haven't done this before. I needed to know where to go. There's an Ombudsman, there's the Fair Work Commission. So I have to do - after three, four days, to make some calls. By - I mean, to be honest, by maybe - still hoping for the thing to settle. Sometime maybe 10 days from the time I came to know about the 21 days.

THE DEPUTY PRESIDENT: The question I have is, that whilst I understand that you may have wanted to resolve the matter with Mr Negri, in circumstances where, given what you've just said, you became aware of the 21 day timeframe about 10 days after your actual dismissal, what stopped you from filing an application within the 21 day time frame?

MR MISCONI: Because I was still communicating with Negri Contractors and then still there was letter and exchange in the form of emails or normal letter. Still I wanted to give Mr Ron Negri, because he's back on the 12th, so to give him some time. But I was aware - and then I said if I'm going to raise a formal one, this may be considered from the other party like some sort of - what can I say, it is like sort of an intimidating action to force something, which I don't want - that's why I mentioned I didn't want to jeopardise with the Negri agreement which is both acceptable without interfering of other party. I hoped that to happen, yes. That's my letter, yes.'[15] (emphasis added)

[23] The Deputy President's assessment of the above exchange is set out at [9] of the Decision:

'In response to questions from the Commission, Mr Misconi:

• Confirmed that he decided not to file his application earlier as he thought doing so might jeopardise the prospects of reaching an amicable resolution with Nr Negri; and
• Stated that he became aware of the 21 day timeframe about 10 days after his dismissal.'

[24] In the course of oral argument before us Mr Misconi advanced two points about what was said at first instance. First, he submitted that the first underlined part of the above extract from the transcript was not a concession that he became aware of the 21 day time limit 10 days after his dismissal, because that is not what he said.

[25] The difficulty with this submission is that it seems clear from the context that the reference 'maybe 10 days' is a reference to 10 days after his dismissal. Indeed this is put to Mr Misconi by the Deputy President in the second underlined passage and was not disputed by Mr Misconi in his response to the Deputy President. Having said that we note that the application was filed about 10 days outside the 21 day period and accept that in his response to the Deputy President Mr Misconi may have been confused about what he was being asked.

[26] The second point advanced by Mr Misconi is that he had previously made it clear to the Deputy President, during the earlier proceedings on 12 November 2018, that he had not been aware of the 21 day time requirement prior to lodging his application.

[27] A mention and directions hearing took place on 12 November 2018. There is no discussion of when Mr Misconi became aware of the 21 day time period in the transcript of that proceeding. However, we note that a portion of those proceedings took place 'off the record' as the Deputy President attempted to resolve the substantive application, with the consent of the parties. We accept that during the 'off the record' conference Mr Misconi may have said that he had been unaware of the 21 day requirement prior to lodging his application.

[28] The second point is that even if Mr Misconi's submission is accepted, mere ignorance of the statutory time limit in s.366(1) is not an exceptional circumstance (as noted in Nulty, see the extract at [12] above)

[29] We are not persuaded that Mr Misconi has established an arguable case of error in respect of the Deputy President's consideration of the delay in the filing of the application and the reason for that delay.

[30] The other grounds of appeal ((v) to (viii) at [15] above) relate to the Deputy President's consideration of the merits of Mr Misconi's substantive application. The Deputy President addresses the merits of Mr Misconi's s.365 application (s.366(2)(d)) at [17] to [19]:

'[17] Other than referring to the reasons for delay in lodging his application Mr Misconi's submissions did not provide any details as to why he considered his dismissal to be in contravention of the general protections provisions of the Act. In response to a question from the Commission at the telephone hearing regarding how he considered the Respondent had contravened the general protections provisions of the Act Mr Misconi contended that he had been subjected to bullying by the Respondent and that the Respondent:

• had made biased decisions affecting him;
• would not let him do what he was supposed to do;
• had not paid attention to his recommendations;
• accused him of dishonesty; and
• discriminated against him by not listening to his arguments and by being biased towards the Project Manager.

[18] The Respondent submitted in its written submissions that Mr Misconi had not indicated how it had breached the general protections provisions of the Act and that therefore it was unable to respond on this issue other than to state that Mr Misconi was terminated for just cause due to unsatisfactory work performance. As previously mentioned, at the telephone hearing the Respondent stated that it disagreed with most of Mr Misconi's oral submissions.

[19] Mr Misconi's oral submissions and the other material he has provided to the Commission, including his abovementioned email of 1 October 2018 to Mr Negri, do not point to the merits of Mr Misconi's being strong. This in turn does not support a finding that there were exceptional circumstances in this case.'

[31] In essence Mr Misconi contends that the Deputy President erred in not appropriately considering the merits of his substantive application and the Decision did not canvass all of the evidence provided by Mr Misconi (see (ii), (v) and (viii) at [15] above).

[32] We would observe at the outset that in the context of a decision dealing with an extension of time application it is not necessary to canvass all of the evidence relating to the substantive application.

[33] The Commission cannot make findings on contested matters without hearing evidence and, as a Full Bench of the Commission observed in Kyvelos v Champion Socks Pty Limited,[16] there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in the context of an extension of time application:

'In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary case twice.'[17]

[34] In the present matter Mr Denson, for the Respondent, made it clear in the course of his oral submissions at first instance that he contested a number of the propositions advanced by Mr Misconi. It is also apparent from a review of the materials that Mr Misconi did not identify, at least not with sufficient particularity, the proscribed reason which formed the basis of his substantive action. In the material filed by Mr Misconi he characterises his dismissal as 'unfair' and 'totally unexpected'. In the course of his oral submissions before the Deputy President Mr Misconi also made reference to an incident of workplace bullying and to discrimination by Mr Denson. The discrimination allegation seemed to amount to the proposition that Mr Denson did not listen to Mr Misconi's argument in a contractor dispute.[18]

[35] In all the circumstances we are not persuaded that Mr Misconi has established an arguable case of error in respect of the Deputy President's consideration of the merit of his substantive application.

[36] The remaining grounds may be disposed of shortly. The first concerns Mr Misconi's complaint that his application for the production of documents by the Respondent was not granted.

[37] The application in question was made by Mr Misconi on 11 December 2018 and the Respondent filed a submission in reply on 14 December 2018.

[38] Mr Misconi's application for the production of documents was not determined by the Deputy President because in an email to the Deputy President's chambers dated 14 December 2018 Mr Misconi informed the Deputy President's Associate (and the Respondent) that the documents sought 'are not required for the out of time issue' and that he postponed his request for the document until after the hearing of 19 December 2018. In these circumstances, there is no substance to this ground of appeal.

[39] Mr Misconi also contends that the Deputy President did not provide him with an opportunity to provide further evidence relating to the alleged bullying. We have reviewed the material at first instance and the audio recording of the hearing on 19 December 2018 and we are not persuaded that there is any substance to this point.

[40] The final ground of appeal concerns Mr Misoni's contention that the Deputy President erred in failing to consider the consequences for Mr Misconi if the matter remains unresolved (see (viii) at [15] above). There is no substance to the point advanced. This matter was not argued before the Deputy President and, in any event, is not a matter the Deputy President was required to take into account.

[41] During the course of oral argument Mr Misconi contended, in substance, that he was not afforded a fair hearing in the proceedings at first instance. In particular it was submitted that he was not given sufficient time to file his submission and evidence in support of his application for an extension of time.

[42] The timetable for the filing of submissions and evidence was settled at the mention held on 12 November 2018. During that proceeding the following exchange took place:

'THE DEPUTY PRESIDENT: Mr Misconi, if I was to do that for you, three weeks from today would be 3 December. Does that give you enough time to pull together your submissions and any evidentiary material?

MR MISCONI: Yes, sir, but I - yes, definitely. I can put the application before 3 December. Just (indistinct) between that 2 December and the 10th, I am not back in Melbourne. Sir, something I want to bring to your attention that there was an - once I left Negri, I could not access my email account so I have made a request to the managing director to direct the project manager to cc me copy of my communication with them for a small period which I need. I haven't heard back from them.'[19]

[43] Indeed Mr Misconi subsequently suggested that he could file his material in two weeks[20] and that was the course that was adopted by the Deputy President. We would also note that during the hearing on 19 December 2018 Mr Misconi made no complaint of the time provided for the filing of material and nor did he seek any further opportunity to file additional material. In the circumstances we are satisfied that Mr Misconi was afforded a fair hearing.

[44] In reaching our decision in this matter we have taken into account the written material filed or tendered by Mr Misconi, both on appeal and at first instance, the audio recording and transcript of the mention held on 12 November 2018 and the hearing on 19 December 2018 and Mr Misconi's oral submissions in support of his appeal.

[45] We are not persuaded that Mr Misconi has established that it is in the public interest to grant permission to appeal. Nor are we persuaded that he has established an arguable case of error in relation to the Decision or that there are any other considerations that warrant the grant of permission to appeal. Accordingly permission to appeal is refused.

[46] We note that in his Form F7 - Notice of Appeal, Mr Misconi states: 'I request FWC to keep my complaint confidential to avoid further damages.' We have taken Mr Misconi's request to be an application for a confidentiality order such that his name is not published in any decision arising from these proceedings. The application was not the subject of much elaboration in the submissions other than a reference to the potential to damage Mr Misconi's future employment prospect. As observed by Vice President Hatcher in Amie Mac v Bank of Queensland Limited and Ors,[21] the principle of open justice will usually be the paramount consideration in determining whether a confidentiality order ought be made.

[47] On the limited material before us we are not persuaded that such an order is warranted in this case. We also doubt the utility of such an order in circumstances where no such order has been sought in relation to the decision at first instance.

[1] [2018] FWC 7722.

[2] [2018] FWC 7722 at [24].

[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] 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 & Alllied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44]- [46].

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

[6] 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].

[7] 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].

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

[9] 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].

[10] See Acts Interpretation Act 1901 (Cth) s.36 as in force on 25 June 2009 see s.40A of the FW Act; Kristia Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.

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

[12] Halls v McCardle and Ors [2014] FCCA 316.

[13] [2011] FWAFB 975.

[14] (Also see Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]- [26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J)).

[15] Transcript, 19 December 2018 at [91]-[94].

[16] Print T2421, 10 November 2000 per Giudice P, Acton SDP ad Gay C, cited with approval in Adam Dundas- Taylor v The Cuisine Group Pty Ltd [2011] FWAFB 6008 and Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109.

[18] Transcript, 19 December 2018 at [95] to [108], especially [104].

[19] Transcript, 12 November 2018 at [17]-[18].

[21] [2015] FWC 774 at [6].

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