s.604 - Appeal of decision

Appeal against decision [2024] FWC 3261 of Deputy President Clancy on 27 November 2024

[1] Myrjun Hiso has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Deputy President Clancy made on 27 November 2024 ( [2024] FWC 3261) which dismissed Mr Hiso's unlawful termination application because it was made contrary to s 725. The matter was listed before us for permission to appeal only.

[2] Section 725 provides that 'a person who has been dismissed must not make an application or complaint of a kind referred to in any one of ss 726 to 732 in relation to the dismissal if any other of those sections applies'. Section 729 applies if a person has made an application under s 394 in relation to the dismissal (an unfair dismissal application), and the application has not been withdrawn or failed because of want of jurisdiction. Section 730 applies if an application has been made under s 773 in relation to the dismissal (an unlawful termination application) and has not been withdrawn or failed for want of jurisdiction.

[3] In his decision, the Deputy President recorded the following findings: on 29 September 2024, Mr Hiso lodged an unfair dismissal application in relation to his dismissal by the respondent, which occurred on 19 February 2024; on 20 October 2024, Mr Hiso lodged an unlawful termination application in relation to his dismissal; and on 11 November 2024, Commissioner Yilmaz dismissed the unfair dismissal application after refusing to grant Mr Hiso an extension of time within which to bring that application ( [2024] FWC 3105). The Deputy President concluded that Mr Hiso was prevented by s 725 from making his unlawful termination application because at the time when he made that application, he had already made an unfair dismissal application which had not been withdrawn or failed for want of jurisdiction. The Deputy President stated that for this reason, the unlawful termination application was not made in accordance with the Act and dismissed the application under s 587(1)(a).

[4] Mr Hiso requires the Commission's permission in order to appeal. Section 604(2) provides that the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCA 54; (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27] (Makin)). Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). However, the fact that a member may have made an error is not necessarily a sufficient basis to grant permission to appeal.

[5] In his notice of appeal, Mr Hiso advanced two essential grounds of appeal, which he addressed in his submissions. First, Mr Hiso contended that the Deputy President erred in law by not recognising that his unfair dismissal application had failed for want of jurisdiction, because it was dismissed by Commissioner Yilmaz after she refused to grant him an extension of time. Mr Hiso contended that the unlawful termination application was therefore not prohibited by s 725. Secondly, Mr Hiso contended that the Deputy President erred in treating the unlawful termination application as one that was duplicative of the unfair dismissal application, when in fact it had an independent statutory foundation.

[6] Neither of these grounds present an arguable case of error. As to the first ground, Mr Hiso fails to appreciate that the question of whether a second application is prohibited by s 725 is assessed at the time when that application is made. When the unlawful termination application was lodged on 20 October 2024, the unfair dismissal application that had been lodged on 29 September 2024 remained on foot; it was not dismissed until 11 November 2024. As to the second ground, Mr Hiso wrongly assumes that s 725 is concerned to prevent multiple applications that are 'duplicative'. This is not an arguable contention. Section 725 prevents multiple applications of different prescribed kinds. A person who has been dismissed must not make an application or complaint of any of the kinds referred to in ss 726 to 732 in relation to the dismissal if any other of those sections applies. The point of the section is to restrict the ability of a person to pursue multiple causes of action in respect of the same dismissal. It is clear that when Mr Hiso lodged his unlawful termination application, s 729 applied, because he had made the unfair dismissal application, and that application had not been withdrawn or failed for want of jurisdiction.

[7] Mr Hiso sought to contend that the Deputy President denied him procedural fairness, but there is no arguable basis for this submission. The Deputy President wrote to Mr Hiso about his concern that the unlawful termination application was prohibited by s 725, and after receiving Mr Hiso's response, proceeded to determine the matter. Mr Hiso said that the substance of his injury-related claims was never considered on the merits, but the point of s 725 is to prevent the consideration of the merits of certain claims where multiple dismissal-related applications have been filed. Mr Hiso's failure to comply with s 725 meant that the Commission had no jurisdiction to deal with the merits of his unlawful termination claim. Even within the confines of an application for permission to appeal, which is concerned with the question of whether there is an arguable case of error, it is plain that the Deputy President's conclusion was correct. There is simply no arguable case that it was erroneous.

[8] Mr Hiso's appeal fails to raise any arguable case of error in the Deputy President's decision. In such circumstances, we are not satisfied that it would be in the public interest to grant permission to appeal, or that it is appropriate to grant permission on general discretionary grounds. We note that Mr Hiso's appeal was lodged outside of the 21-day period prescribed by rule 128(2)(a) of the Fair Work Commission Rules 2024. Section 585 of the Act requires an application to the Commission to be in accordance with the procedural rules. In light of our view that the notice of appeal reveals no arguable case of error and presents no case for the grant of permission to appeal, there is no sensible basis to extend time to file the notice of appeal in respect of the Deputy President's decision, and we refuse to extend time. The appeal was therefore not made in accordance with the Act, and the application is dismissed (see ss 585 and 587(1)(a)). We would in any event have refused permission to appeal.

[9] Mr Hiso's notice of appeal stated clearly, in response to question 1.2 in the form F7, that the decision from which he sought to appeal was that of Deputy President Clancy. However, it appears from attachments to the F7, and from Mr Hiso's submissions, that he also seeks to appeal the decision of Commissioner Yilmaz that dismissed his unfair dismissal application. The procedural rules would require that an F7 notice of appeal be filed in respect of that appeal. But in this case, favourably to Mr Hiso, we waive this requirement and will consider whether Mr Hiso should be granted permission to appeal from Commissioner Yilmaz's decision. As to that matter, in brief summary, Mr Hiso's unfair dismissal application was filed 202 days outside of the 21-day period set by s 394(2). An extension of time can only be granted under s 394(3) if there are exceptional circumstances. The Commissioner took into account each of the mandatory considerations in s 394(3) in deciding whether she was satisfied that there were exceptional circumstances in Mr Hiso's case and concluded that there were no such circumstances.

[10] Mr Hiso contends that the Commissioner erred by failing to properly consider his medical incapacity as an exceptional circumstance. But in her decision, the Commissioner considered the contentions and evidence that Mr Hiso put to her, including as to the reasons for the delay, and no arguable error is apparent to us in this regard. Mr Hiso refers to new material, but there is no error in a member not considering material that was never put to her. To the extent that Mr Hiso seeks to adduce new evidence on appeal, we decline to receive it, having regard to the usual considerations. In particular, no explanation is given as to why this material could not reasonably have been produced at first instance or why it would have made any difference. Mr Hiso contends that there were exceptional circumstances in his case, but this is just an assertion of a preference for a different outcome. It does not speak to any arguable error in the Commissioner's decision. Mr Hiso also disputes the Commissioner's assessment of other considerations in s 394(3) but identifies no arguable error. Section 400 applies to Mr Hiso's appeal against the Commissioner's decision, as it was made under Part 3-2 of the Act. Section 400 provides that the Commission must not grant permission to appeal from such a decision unless it considers that it is in the public interest to do so. We are not so satisfied. None of the factors referred to in Makin are present, nor do we consider that there are any other matters that engage the public interest in this case. We note that Mr Hiso's appeal against the decision of Commissioner Yilmaz was also filed outside the 21-day period prescribed by the Rules. The appropriate course is to refuse to extend time for the appeal against the Commissioner's decision to be brought. We would in any event have refused permission to appeal.

[11] We refuse to grant a further period for the filing of the notice of appeal. The applications for permission to appeal against the decision of the Deputy President and against the decision of the Commissioner are dismissed.

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