Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision PR736900 of Deputy President Asbury at Brisbane on 17 December 2021 in matter number U2021/9743 - permission to appeal refused.

[1] Mrs Nguyet Bui (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against an ex tempore decision and order[1] (Decision) made on 17 December 2021 by Deputy President Asbury (Deputy President) and reasons[2] for the Decision.

[2] The Decision concerned an application for an unfair dismissal remedy pursuant to s.394 of the Act. The Decision concerned a jurisdictional objection that the application was filed out of time.

[3] An application for an unfair dismissal remedy made pursuant to s.394 of the Act must be made within 21 days after the dismissal takes effect or in such further time that the Fair Work Commission (Commission) allows. The Appellant's termination of employment took effect on 20 August 2021, and the application was required to be lodged by 10 September 2021. The unfair dismissal application was filed on 31 October 2021, 51 days out of time.

[4] The Deputy President refused to grant an extension of time for the filing of the application as she was not satisfied there were exceptional circumstances and therefore, there was no basis to allow an extension of time.

[5] This matter was listed for permission to appeal only, ALSCO Pty Ltd (the Respondent) was not required to file any material and it did not do so. The application for permission to appeal was heard on 9 March 2022.

[6] For the reasons that follow, permission to appeal is refused.

[7] The Appellant commenced employment with the Respondent on or about 19 August 2014 and was dismissed from her employment on 20 August 2021.

[8] Following the termination of her employment, the Appellant sought legal advice from Legal Aid on 1 September 2021 and thereafter, posted an application for an unfair dismissal remedy to the Commission on 3 September 2021.

[9] On 7 September 2021, the Appellant contacted JobWatch, an employment rights legal centre, seeking further advice regarding her rights. Following receipt of that advice, and prior to the unfair dismissal application being received by the Commission, the Appellant attended the Brisbane registry on 8 September 2021 and filed a general protections application involving dismissal.

[10] On 13 September 2021, the Appellant advised the Commission that she wished to proceed with the general protections application in lieu of the yet to be received application for an unfair dismissal remedy.

[11] On 14 October 2021, the Commission conducted a conference in relation to the general protections application. The Appellant was represented at the conference by a representative of the United Workers Union.

[12] Between 14 and 31 October 2021, there were ongoing discussions between the parties and the Commission in the context of attempting to resolve the matter. As noted in the Reasons, during this period the Appellant appeared to be dissatisfied with the Respondent's settlement proposals and considered discontinuing her general protections application and filing a new application for an unfair dismissal remedy. In this respect, the Appellant was advised by the conciliator that she would require an extension of time to proceed with a new application for an unfair dismissal remedy.

[13] On 31 October 2021, the Appellant filed a notice of discontinuance in relation to the general protections application involving dismissal and filed an application for an unfair dismissal remedy, which is the subject of this appeal.

[14] As stated above, the application was filed 51 days out of time.

[15] After setting out the background to the application, the Deputy President made the following findings in relation to s.394(3)(a) - the reason for the delay:

• [36] I do not accept that the Applicant's decision to withdraw her General Protections application because she decided she had lodged the wrong application, and that an Unfair dismissal application was more appropriate, is of itself an exceptional circumstance. While I accept English is not the Applicant's first language, the Applicant had the benefit of legal advice from three sources prior to filing her unfair dismissal application: from her Legal Aid appointment on 1 September; from JobWatch on 7 September and from the UWU which represented her at the conference on 14 October 2021. On her own evidence, the Applicant was able to access the Commission's website for further information.

  • [37] The fact the Applicant asserts she had difficulty understanding the different applications because English is not her second language is also not, of itself, an exceptional circumstance. The Applicant was provided with an interpreter by the Fair Work Conciliator on two occasions and gave every indication that she understood the essential features of each of the applications she made.

  • [38] It is clear from the Applicant's conduct, her written submissions and her evidence at the hearing, that the explanation for the delay in filing the unfair dismissal application which is the subject of the present proceedings, is that she withdrew an earlier unfair dismissal application and decided to make a general protections application because she believed that a general protections application would enable her to deal with a broader range of claims. The Applicant was then dissatisfied with a settlement offer made by the Respondent in relation to her general protections application and decided that she could obtain more compensation by making an unfair dismissal application. These matters are also, of themselves, not exceptional circumstances.

  • [39] There is no indication that the Applicant relied or acted on incorrect advice, thereby occasioning delay with making her application. The Applicant could have made either an unfair dismissal application or a general protections application, in circumstances where she raises issues of discrimination. I note that the Staff Conciliator facilitated a telephone call with an interpreter for the Applicant on 25 October 2021 and explained to the Applicant that if she decided to file an unfair dismissal application it would be out of time and the Commission could only extend time if it was satisfied there were exceptional circumstances. An email was also sent to the Applicant on that date setting out this information. The Applicant offered no explanation as to why it took her until 31 October 2021 to file an unfair dismissal application.

• [40] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

[16] The Deputy President then went on to consider each of the remaining matters set out in s.394(3)(b)-(f) of the Act, apportioning weight in favour of, or against, an extension of time, or making a neutral finding based on the evidence and materials before her.

[17] The Deputy President concluded that she was not satisfied that there were exceptional circumstances, when taking into consideration the matters set out in s.394(3) individually or collectively, and therefore, there was no basis to allow an extension of time.

[18] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal - of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so.

[19] Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a 'significant error of fact' (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.

[20] The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Making 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters..."[3]

[21] Other than granting permission to appeal on a public interest basis, the grounds for granting permission to appeal are not specified. Considerations which have traditionally been 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 refused.[4]

[22] 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.[5] 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.[6]

[23] 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 to conduct a detailed examination of the grounds of appeal.[7] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

[24] We discern from the Form F7 Notice of Appeal_,_ that the Appellant's grounds of appeal are as follows:

Ground 1 - That the general protections application had to be discontinued prior to the filing of the application for an unfair dismissal remedy and that the Appellant did not know how to do that and was not provided any assistance;[8] and

Ground 2 - Because the Appellant is Vietnamese and English is her second language, she was confused and had to translate her research through google translator to understand it.[9]

[25] On 8 March 2022 and following several queries from the Commission regarding the Appellant's failure to file any submissions in accordance with the directions issued, the Appellant filed an Amended Form F7 Notice of Appeal (Amended Notice of Appeal).

[26] The Amended Notice of Appeal did not advance any additional grounds of appeal, rather it addressed matters relevant to the merits of her application for an unfair dismissal remedy.

[27] During the hearing for permission to appeal, the Appellant's submissions were limited to seeking a fair hearing.

[28] An application for an unfair dismissal remedy under s.394 of the Act must be made within 21 days after the dismissal takes effect or in such further time that the Commission allows. The Commission may allow an application to be filed out of time, if the Commission is satisfied that exceptional circumstances exist, taking into account the factors set out in s.394(3) as a matter of significance.[10]

[29] The test for 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[11]

[30] The Deputy President's Reasons clearly set out her consideration of all of the matters she was required to take into account under s.394(3) and the Deputy President made her overall assessment of the Appellant's application on that basis.

[31] Although the grounds of appeal do not contend any error in the Decision or Reasons and are in essence a repetition of the reasons for the delay advanced at first instance, we make the following observations:

[32] First, the Deputy President found that the Appellant's decision to withdraw her general protections application and file an application for an unfair dismissal remedy was motivated by the Appellant's belief that she could obtain a more favourable outcome. The fact that Appellant discontinued her general protections application in order to commence an application for an unfair dismissal remedy does not assist her. In the absence of discontinuing the general protections application, the Appellant would have been statutorily barred from commencing the application for an unfair dismissal remedy.[12] Further, where an applicant discontinues an application before the Commission in order to commence a different application, the subsequent application will be subject to any relevant time limits under the Act.[13]

[33] Second, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[14]

[34] Third, the Deputy President found that the Appellant's limited proficiency of the English language was not exceptional in circumstances where prior to the filing of the unfair dismissal application, the Appellant had access to three sources of legal and industrial relations advice and had access to an interpreter provided by the Commission on two occasions during the conciliation phase of her general protections application. At no stage during the proceedings at the first instance, or on appeal, did the Appellant advance a case based on representative error.

[35] The Deputy President's conclusion, that the Appellant's reasons for the delay did not amount to exceptional circumstances under s.394(3) was open to her on the evidence before her. Further, the Deputy President applied an orthodox approach to the matter before her and we cannot discern any error with her approach or findings.

[36] Having considered the Appellant's submissions and the materials filed on appeal, we have also considered whether this appeal attracts the public interest. We are not persuaded, for the purposes of s.604(2), that:

• (i) there is a diversity of decisions at first instance such that guidance from an appellate body is required of this kind;

• (ii) the appeal raises issues of importance and/or general application;

• (iii) the Decision at first instance manifests an injustice, or the result is counter intuitive; or

• (iv) that the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.

[37] For the reasons set out above, the Full Bench is not satisfied that the Appellant has demonstrated an arguable case of appealable error or that it would be in the public interest to grant permission to appeal pursuant to s.604(2) of the Act.

[38] Permission to appeal is refused.

[1] PR736900.

[2] Nguyet Bui v ALSCO Pty Ltd [2020] FWC 20 (Reasons).

[3] [2010] FWAFB 5343; (2010) 197 IR 266 at [27].

[4] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481.

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

[6] 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 388, 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].

[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

[8] See Form F7 Notice of Appeal dated 6 January 2022, part 2.1 at [1] and [3].

[9] See Form F7 Notice of Appeal dated 6 January 2022, part 2.1 at [1] and [3].

[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39].

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

[12] Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660 at [25]- [31].

[14] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

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