[2014] FWCFB 3530 [Note: refer to the Federal Court decision dated 1 November 2016 [2016] FCAFC 149 for result of appeal

Fair Work Act 2009

s.604 - Appeal of decisions

Commonwealth of Australia as represented by the Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education

Appeal against decision [2013] FWC 9932 of Commissioner Deegan at Canberra on 19 December 2013 in matter number U2013/13310.

[1] Mr Kennedy has appealed Commissioner Deegan's decision[1] to refuse to grant him an extension of time for the lodgement of an application for relief pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] Prior to the hearing of this appeal, Mr Kennedy objected to the Presiding Member's inclusion on the Appeal Bench on the basis of her gender. Mr Kennedy's application appeared to be based on his perception of his having a long history of poor treatment by various women in the course of these critical events. The Presiding Member refused that application. Whilst sympathetic to Mr Kennedy's perception on this issue, the Presiding Member determined that there was no basis for her to remove herself from this Bench on the basis of gender, either on the merit of Mr Kennedy's particular application or after considering the objects of the Act.

[3] At the hearing of this appeal on 19 March 2014, Mr Kennedy represented himself. Ms T Williams, principal legal officer, appeared for the Commonwealth of Australia as represented by the Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education (the Department).

[4] Prior to the hearing Mr Kennedy sought to amend his original Grounds of Appeal[2]. The amendment was allowed and Mr Kennedy's appeal proceeded on those amended grounds and additional material provided to the Bench.

[5] A recent Full Bench[3] of the Fair Work Commission (the Commission) discussed the principles applicable to appeals from unfair dismissal applications as follows:

"[11] In unfair dismissal matters, permission to appeal can be granted only if the Commission considers that it is in the public interest to do so: s.400(1) of the Act. The way in which the public interest may be attracted has been described as follows:

"... 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."

[12] The decision under appeal is a discretionary one. Such a decision can be successfully challenged on appeal only if it is shown, for instance, that the discretion was not exercised correctly. It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in _House v The Kin_g:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."" [Endnotes not reproduced]

[6] This is the approach we have applied to our consideration of Mr Kennedy's appeal.

[7] The relevant legislative framework for the exercise of the Commission's discretion in relation to applications of this kind is set out below:

(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.

[8] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd [2011] FWA FB 975 where the Full Bench said:

"[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act."

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression "exceptional circumstances" was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

"23. I am of opinion that the expression 'exceptional circumstances' requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

'Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.'

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

'We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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' in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services."

[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." [Endnotes not reproduced]

[9] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[10] It is in this context that we have considered Commissioner Deegan's application of the legislative framework to the facts relied on by Mr Kennedy.

[11] We have set out below, in a somewhat truncated chronology, the history of Mr Kennedy's applications before the Commission.

[12] Mr Kennedy's employment with the Department ceased on 26 July 2012. Mr Kennedy alleges that he was forced to resign his employment because of the conduct of the Department which had caused him to develop an incapacitating illness. He alleges a constructive dismissal.

[13] On 24 December 2012 Mr Kennedy lodged an application (the first application) pursuant to s.394 of the Act.

[14] On 31 January 2013 the first application was listed for conciliation.

[15] On 5 March 2013 Mr Kennedy lodged a Notice of Discontinuance of the first application.

[16] On 10 July 2013 Mr Kennedy lodged an application to have his Notice of Discontinuance set aside.

[17] On 22 August 2013 Commissioner Deegan refused Mr Kennedy's application to have his Notice of Discontinuance set aside[4].

[18] On 22 August 2013 within two hours of his receipt of Commissioner Deegan's decision to refuse to set aside the Notice of Discontinuance, Mr Kennedy forwarded an e-mail to the Commission stating that he was writing to lodge an unfair dismissal claim.

[19] On 6 September 2013 Mr Kennedy lodged another application (the second application).

[20] Mr Kennedy's extension of time application in relation to the second application is the subject of the decision of Commissioner Deegan which is under appeal before this Bench.

[21] We have considered Mr Kennedy's amended grounds of appeal and his extensive materials. Although Mr Kennedy identified in his submissions a number of factual references and conclusions which he submitted were in error, we are not satisfied that any of the errors Mr Kennedy identified in Commissioner Deegan's decision are relevant or significant. For example, Mr Kennedy identified errors of fact in ground 1, paragraphs 1 to 5 and grounds 2 to 5. In reference to them Mr Kennedy said they were "...not significant errors but ... Important". Mr Kennedy objected to Commissioner Deegan referring to the cessation of his employment as a termination of employment instead of a forced resignation. He objected to her stating that his employment ceased in June 2012 instead of July 2012. He objected to her stating that he was explaining his delay when negotiating with Senator Humphries as commencing from 2 December 2012 when it occurred from 3 November 2012. He objected to her suggesting he suffered from a Major Anxiety Disorder instead of a Generalised Anxiety Disorder. He submitted that she was in error to say that he was suffering from a Depressive Disorder instead of a Major Depressive Disorder.

[22] Mr Kennedy submitted in ground 6 that Commissioner Deegan dealt only with the delay from the discontinuance of his first application to the lodgement of his second application. He submitted that was a failure to provide adequate reasons. We do not agree. That delay was part of the overall delay in lodgement and, if the reasons for that particular delay were insufficient to establish exceptional circumstances, then a further examination of any other periods of delay would have been superfluous.

[23] Mr Kennedy submitted in grounds 7, 8, and 11 that Commissioner Deegan did not take into account the number of days in which the ordinary proceedings of the Commission were on foot in relation to both the first and second of his applications. He submitted that the Commissioner added these periods to the period of delay under consideration and therefore did not properly consider his actual delay. He submitted that this error made it more difficult for him to obtain an extension of time because of the resultant exaggeration of the delay in lodgement. There is nothing to suggest Commissioner Deegan made that error.

[24] Mr Kennedy submitted that Commissioner Deegan had not considered his visit to the Commission's Canberra office and his e-mail to the Commissioner on 6 June when seeking to set aside his Notice of Discontinuance. With respect to Mr Kennedy, this issue in ground 9 has no merit. The submission concerning his visit and e-mail could not have advanced his application.

[25] In ground 10 Mr Kennedy relied on his having contacted the Commission to advise that he was lodging a new application. Contacting to say it is intended to lodge a new application is not the same as lodging a new application. Mr Kennedy did not lodge the second application until two weeks later.

[26] In ground 12 Mr Kennedy submitted that Commissioner Deegan had not relied upon any key principles of law. Extensive statements of key principles of law to the application of straightforward legislative tests are not necessary. We are satisfied that what the Commissioner did was to apply the legislative test in an appropriate fashion to the facts of this case.

[27] In ground 13 Mr Kennedy submitted that the Commissioner was in error in not reading every document provided to her. It is not clear to us that every document referred to by Mr Kennedy was a document tendered to Commissioner Deegan and therefore a document she was obliged to take into account. However, if there were documents overlooked by Commissioner Deegan, of which we are not persuaded, there have been no documents overlooked by this Bench. We have considered the documents before Commissioner Deegan. They do not persuade us that there has been an error in the Commissioner's decision.

[28] In ground 14 at paragraph 39 Mr Kennedy listed a number of reasons, which had been part of the 45 reasons set out in his original submissions, which he submitted were not addressed by the Commissioner. Other factors said to have been overlooked by the Commissioner were listed in his materials. In relation to the reasons in his original submission which Mr Kennedy submitted Commissioner Deegan actually dealt with, Mr Kennedy submitted there were either no or insufficient details provided. We are satisfied that Commissioner Deegan addressed all those reasons provided by Mr Kennedy that were relevant to the application of her discretion.

[29] In ground 15 Mr Kennedy relied on the failure of Commissioner Deegan to consider the Department's failure to provide a Fair Work Information Statement to him at commencement of employment. This is a matter that might have contributed to any ignorance of Mr Kennedy concerning the relevant time limit. However, we are not persuaded that it was a factor that could have influenced a decision concerning anything but the very earliest period of Mr Kennedy's delay. It is not a significant error.

[30] In ground 16 Mr Kennedy objected to the failure of Commissioner Deegan to apply the decision of Brodie-Hanns v MTV Publishing Limited[5] and Telstra-Network Group v Kornicki[6]. These decisions apply in a general sense to the current legislative framework. However, Commissioner Deegan considered the relevant discretionary matters set out in the Act and we cannot identify any error in her consideration of those matters.

[31] Mr Kennedy's ground 17 dealt with comparable cases which he considered should have persuaded the Commissioner to find in his favour. Each application must be considered on its own facts. We are not persuaded that Commissioner Deegan's discretion miscarried on the application of the facts of this application.

[32] Ground 18 dealt with Mr Kennedy's submission that the Commissioner was in error when she said that the majority of his submissions addressed the merit of his substantive application. There was a vast amount of material dealing with Mr Kennedy's explanation for delay. Merit is a relevant factor and the Commissioner afforded it appropriate consideration. We are not persuaded that, because the Commissioner considered that a majority of the material supplied by Mr Kennedy dealt with merit, it is a matter that affected the exercise of her discretion. It could not, in any event, be a significant error.

[33] Mr Kennedy presented evidence to the House Standing Committee on Education and Employment enquiring into workplace bullying. In ground 19 Mr Kennedy submitted that Commissioner Deegan should have considered his evidence to the Committee and its findings. Commissioner Deegan is required to apply the Act and consider the matters relevant to her discretion. It appears to us that she did so. In relation to ground 19 and ground 20, to the extent necessary, she considered Mr Kennedy's medical condition, the evidence of his treating medical practitioners and his allegations of bullying. Commissioner Deegan concluded that Mr Kennedy gave priority to some action by his own choice. The exercise of that choice might have reflected his medical condition and incapacity. Commissioner Deegan considered that that was a personal choice which did not amount to a circumstance sufficient to grant an exception to the time limit. That was a conclusion open to her on the material before her.

[34] Mr Kennedy alleges that Commissioner Deegan overlooked action taken by him to dispute his termination of employment (ground 21 and 22). Mr Kennedy relies on his own resignation as being forced upon him by the Department in July 2012. He does not suggest that the Department directly terminated his employment. There are many instances of his contesting the circumstances which led to his departure. There is nothing to suggest that he ever objected to the acceptance of his own resignation.

[35] Mr Kennedy raised prejudice to the respondent in ground 23. In fact, Commissioner Deegan found that any such prejudice would not be sufficient in itself to ground a refusal of the application for his extension of time. It was a finding adverse to the Department and not an appropriate subject for appeal.

[36] Ground 24 of Mr Kennedy's appeal referred to evidence that he submitted was provided to Commissioner Deegan but was not referred to in Commissioner Deegan's decision. Commissioner Deegan is only obliged to refer to the evidence that persuaded her and she relied upon. Not every document provided by a party has to be dealt with in a decision if that document is not decisive of an issue.

[37] In ground 25 Mr Kennedy referred to Commissioner Deegan's finding that she was unable to conclude that his application was totally without merit. That is not a finding adverse to Mr Kennedy. It is the opposite. It is not an appropriate subject for a ground of appeal.

[38] In ground 26 Mr Kennedy referred to Commissioner Deegan's finding in relation to persons in a similar position. Mr Kennedy's circumstances do not give rise to a consideration of that issue. It is an applicable consideration when more than one person is in the same factual situation but one person is treated differently from the others by the same employer.

[39] There is no merit in ground 27 of Mr Kennedy's appeal referring to cases involving similar facts. Each case must be decided on its own facts. Commissioner Deegan applied the relevant legislation to the facts of Mr Kennedy's case.

[40] We are not persuaded that Commissioner Deegan improperly overlooked the fact that Mr Kennedy had approached a federal politician rather than seeking legal advice as outlined in ground 28. The issue was not relevant and, even if it had been relevant, could not have been decisive.

[41] Grounds 29, 30 and 31 repeat earlier issues.

[42] Mr Kennedy submitted in ground 32 that Commissioner Deegan had erred by considering irrelevant matters and by putting words in his mouth. She is alleged to have taken him down paths he did not wish to go, thereby placing him under pressure. We have examined the transcript and can find no support for this appeal ground. Mr Kennedy alleges that the Commissioner tried to draw out of him what he was doing in a period when it might be suggested he was not doing anything. He considered this to be fishing for items to use against him and rely on to dismiss his claim. There is no evidence of such alleged conduct. On the contrary, we are satisfied that the Commissioner, in trying to obtain an explanation for periods of inactivity, was doing the opposite of what is submitted by Mr Kennedy. She appears to us to have been trying to extract information from him which would inform her when exercising her discretion.

[43] We have examined grounds 33 to 38 inclusive. There is nothing raised in those grounds of appeal which demonstrate error. What is apparent to us on examination of the transcript is that Commissioner Deegan pressed Mr Kennedy to address the criteria set out in the Act relating to extension of time applications and which were likely to affect the exercise of her discretion.

[44] There was no issue of significance raised in the new materials presented in the appeal which we allowed Mr Kennedy to tender. They did not support a different conclusion from that reached by Commissioner Deegan, nor did they demonstrate significant error or provide a reason sufficient to attract the public interest.

[45] We do not accept that there was a failure to provide adequate reasons or a failure to appropriately consider all the matters raised by Mr Kennedy before Commissioner Deegan. We note and agree with the comments of the Full Bench in Barach v University of New South Wales [2010] FWAFB 3307, where this was said:

"[16] The duty to give adequate reasons for decision has been considered on many occasions. Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.

[17] The present matter involved the consideration of a preliminary jurisdictional issue regarding an application for relief in respect of termination of employment. In his decision, the Vice President set out the relevant principles to be applied in determining whether the twelve month probationary period was reasonable and then made an assessment of the various matters relied upon by the parties concerning the nature and circumstances of the appellant's employment. The Vice President identified key considerations and generally explained the relative importance of the factors relied on by the parties. In our view the Vice President in his decision succinctly and sufficiently exposed the essential grounds as to why he decided that the probationary period was reasonable. As we have concluded earlier, the Vice President made the correct finding regarding the reasonableness of the probationary period."

[46] Commissioner Deegan concluded that Mr Kennedy could have pursued a timely application pursuant to s.394 of the Act if he had chosen to do so. It is clear that Mr Kennedy has suffered extensive periods of ill-health which made it difficult for him to pursue, in a timely fashion, all of the possible avenues of redress he had identified for what he saw as harsh, unjust or unreasonable treatment by the Department. However, the test in the present Act is a strict one.

[47] We are not satisfied there is any substance in the Grounds of Appeal. We can identify no significant error in Commissioner Deegan's consideration of Mr Kennedy's application. Had we been persuaded by Mr Kennedy's submissions that any of the matters identified by him were in fact errors, we would still not have been persuaded that any of those errors were, either individually or cumulatively, significant. We are not satisfied that any of them, either individually or cumulatively, could have, if Commissioner Deegan had relied upon them, contributed to her reaching a conclusion supportive of Mr Kennedy's application from her consideration of the facts. No single ground of appeal, or all of them cumulatively, are sufficient to attract the public interest. The appeal is dismissed.

[1] [2013] FWC 9932

[2] Appendix N, page 56 of Submissions Folder

[3] Baker v Patrick Projects Pty Ltd 2014 FWCFB 2293 [PR549389]

[4] Kennedy v Commonwealth of Australia Department of Industry, Innovation, Science & Tertiary Education [2013] FWC 6014 [PR540592]

[5] (1995) 67 IR 298

[6] (1997) 140 IR 1

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