Fair Work Act 2009

s.604 - Appeal of decision

Permission to appeal against decision [2019] FWC 955 of Commissioner Simpson at Brisbane on 21 February 2019 in matter number U2018/10673 - permission to appeal refused.

[1] Qantas Ground Services Pty Ltd trading as QGS (Qantas) has applied for permission to appeal a decision of Commissioner Simpson issued on 21 February 2019[1] (Decision) in which the Commissioner granted an extension of time for Mr Simon Rogers to file his application for an unfair dismissal remedy against Qantas under s 394 of the Fair Work Act 2009 (FW Act).

[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). Section 394(3) provides:

(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.

[3] Mr Rogers' application for unfair dismissal remedy was made 52 days out of time. He was dismissed by Qantas on 3 August 2018, so the 21st day after his dismissal was 24 August 2018. The factual circumstances of the delay in lodging the application were described in the witness statements of Mr Rogers and of Mr Paul Pattison, solicitor. In the proceedings before the Commissioner, Qantas did not cross-examine either of these persons or adduce any evidence contradicting what they said. In summary, their evidence demonstrated that on 6 August 2018, Mr Rogers' engaged the services of Mr Pattison to represent him with respect to his dismissal. Mr Pattison recommended to Mr Rogers that in the first instance he take advantage of Qantas's offer of an internal appeal. On 9 August 2018, consistent with this advice, Mr Rogers lodged an internal appeal. On 16 August 2018 Mr Pattison sent an email to Qantas seeking a response in respect of the internal appeal. On 20 August 2018, Mr Pattison (who was apparently a sole practitioner at the time) went on planned leave. On 27 August 2018, Qantas notified Mr Rogers that his internal appeal was unsuccessful. Mr Pattison returned from leave on 4 September 2018, and upon his return Mr Rogers instructed him to proceed with an application to the Commission. Mr Pattison's evidence was that there was a backlog of matters when he returned as well as the interruption of the Queen's Birthday holiday on 1 October 2018. Mr Pattison said that Mr Rogers' application was prepared "as soon as it was realistically possible", and it was lodged on 15 October 2018.

[4] In the Decision, the Commissioner gave separate consideration to each matter required to be taken into account under s 394(3). In relation to the reasons for the delay, the Commissioner accepted that the delay was caused by representative error on the part of Mr Rogers' lawyers:

"[25] It is clear that Mr Rogers sought legal advice at the first opportunity after his dismissal about how to contest the dismissal. The representative error in this case is the solicitor, on having been instructed to "pursue for him whatever rights he may have" recommending to Mr Rogers that he pursue the internal appeal without also advising, and taking steps to ensure that an unfair dismissal application be filed in the event of the result of the internal appeal being either unknown or unsuccessful before the expiry of the 21 day time limit to file an unfair dismissal application. Whilst the statement of Mr Pattison does not expressly address why he did not take both of these steps, as a solicitor he would have been aware, or should have been aware about the need to do so. The issue went to the heart of the instruction he was given, and the advice he should have provided to Mr Rogers.

[26] Qantas reads paragraph 7 of the statement of Mr Rogers as proof that Mr Rogers was aware of the 21 day time limit before Mr Pattison went on leave. Because of some ambiguity in the two unchallenged statements it is not entirely clear to me whether Mr Rogers was aware of the 21 day time limit before it expired, or not. Certainly on one view he could have been. If he was aware of it beforehand, perhaps he could have done more, however either way the primary fault for the delay in filing of the unfair dismissal application must sit with the solicitor and not Mr Rogers. Mr Rogers had acted as quickly as he could to seek legal advice to contest his dismissal, and by instructing his lawyer to "pursue whatever rights he may have." In the circumstances it was not unreasonable for Mr Rogers to expect that his solicitor Mr Pattison was taking the necessary steps to follow his instructions and to protect his interests.

[27] On viewing the material prepared by Mr Pattison for the purposes of the internal appeal, it is clear Mr Pattison had already familiarised himself with all of the information he would have required in order to file an unfair dismissal application at the same time or soon after lodging the internal appeal, or at the latest before he commenced his leave. Why he did not do so is not explained but given Mr Rogers' instructions to Mr Pattison, Mr Rogers should not be punished because Mr Pattison did not ensure that the step was taken either by himself or someone else in the firm before the 21 day time limit had expired.

[28] Mr Rogers gave evidence that upon Mr Pattison's return he instructed Mr Pattison to proceed with pursuit of his application to the Commission. Qantas relies on this evidence at paragraph 13 of Mr Rogers statement to submit that this was the first time Mr Pattison had received instructions to file such an application. For reasons already addressed above, I am not satisfied when viewed in totality Qantas's characterisation of what occurred is a fair representation of the evidence given the instructions Mr Rogers gave to Mr Pattison on 6 August. Even if it were to be the case that Mr Rogers did not give an explicit instruction to Mr Pattison to file an unfair dismissal application until 4 September 2018, that would it seem in all likelihood only be because Mr Pattison had failed to advise Mr Rogers of his ability to do so, and/or the need to have done so within 21 days of termination.

[29] The errors on the part of Mr Rogers' solicitor tend to support the case for granting an extension."

[5] In respect of the remaining considerations in s 394(3), the Commissioner found that paragraph (b) did not tend to support the grant of an extension, paragraphs (c) and (d) supported or did not weigh against the grant of an extension, and paragraphs (e) and (f) were neutral. The Commissioner then concluded that, taking into account all the s 394(3) matters, there were exceptional circumstances warranting the grant of an extension.

[6] Qantas' detailed grounds of appeal primarily challenge the Commissioner's findings concerning the reasons for the delay and his conclusion that representative error on the part of Mr Rogers' lawyers weighed in favour of the grant of an extension. In essence, Qantas contends that the Commissioner fell into error and failed to properly exercise his discretion in allowing a further period within which Mr Rogers' unfair dismissal application could be brought, because:

• the Commissioner did not have proper regard to the reasons for the delay, and/or that the reasons for the delay were inadequate to support a finding of exceptional circumstances;

• the evidence before the Commissioner did not support a finding of exceptional circumstances; and

• the Commissioner did not provide any or adequate reasons for his finding that the facts in evidence provided exceptional circumstances.

[7] Qantas' submissions in support of its application for permission to appeal focused on that part of the delay in filing the application from Mr Pattison's return from leave on 4 September 2018 to the filing of the application on 15 October 2018, which amounted to 42 days. Qantas submitted that the Decision focused upon the earlier part of the delay when the internal appeal was being pursued, and did not address this later period. Mr Pattison, it was submitted, had only given a very broad and vague explanation concerning his post-leave commitments during this period, and Mr Rogers had said no more than that he had telephoned Mr Pattison regularly as to the state of progress in the matter, and the delay was otherwise unexplained. In the circumstances, it was not reasonably open to find the existence of exceptional circumstances. Qantas submitted that it would be in the public interest to grant permission to appeal because:

• the appeal raised important issues concerning the sufficiency of the evidence necessary to demonstrate that exceptional circumstances exist;

• the Decision manifested an injustice and was counter-intuitive;

• the Decision was inconsistent with other decisions which establish that any applicant reliant upon representative error needs to demonstrate they are blameless in respect of the delay and that the delay was not caused by any conduct and/or inactivity on their part;

• the Decision was also inconsistent with other decisions which have held that exceptional circumstances require a credible and exceptional explanation for the whole of the delay; and

• it is in the public interest to ensure consistency in decision-making and to ensure that a legal representative's poorly-explained inattentiveness is not elevated to an exceptional circumstance under s 394(3).

[8] 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.[2] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[9] 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.

[10] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [43], 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.[3] 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."[4]

[11] 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]

[12] 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 those grounds to consider whether they raise an arguable case of appealable error.

[13] 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.[8] 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[9] - that is, 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.

[14] We are not persuaded that Qantas has made out an arguable case that the Commissioner erred in the manner contended.

[15] The Commissioner appears to us to have properly addressed each of the matters in s 394(3) of the Act that he was required to take into account, and appears to have made appropriate findings. The approach to the specific requirements of s 394(3) appears to us to be conventional and unremarkable, and no arguable case of appealable error is disclosed. In particular it seems clear to us that, contrary to Qantas' contention, the Commissioner took into account the entirety of the delay in considering the reason for the delay for the purpose of s 394(3)(a). The gravamen of the Commissioner's reasoning in this respect is, we consider, contained in the section of the Decision which we have earlier quoted. That makes it clear that inaction on the part of Mr Rogers' legal representative, in circumstances where he had been given explicit instructions by Mr Rogers to pursue whatever remedial rights he may have, was the explanation for the delay, including that part of it which followed Mr Pattison's return from leave on 4 September 2018.

[16] Qantas' appeal appears to us to be fundamentally misconceived in at least three respects. Firstly, s 394(3)(a) required, in this case, consideration of whether Mr Rogers had an acceptable explanation for the delay. His explanation, as the Commissioner found, was that Mr Pattison, the legal practitioner he had engaged and instructed to pursue his legal rights, failed to do so in a timely fashion. It was not necessary for Mr Pattison to provide an acceptable explanation for his own delay in acting in accordance with his instructions and filing the application within the 21-day time period. Indeed it is readily apparent from the evidence that Mr Pattison did not have an acceptable explanation for his own inaction, but that is in our view a matter which supports rather than negates the existence of exceptional circumstances. As was stated in Hoang v WMS Gaming Australia Pty Ltd, "[t]here is nothing usual or normal about negligence on the part of a solicitor".[10]

[17] Secondly, it was not necessary on the authorities for Mr Rogers to demonstrate that he was "blameless" for the delay beyond establishing the fact that he gave appropriate instructions to a legal practitioner in a timely fashion. This point was made clear in the Full Bench decision in Robinson v Interstate Transport Pty Ltd[11] (in the context of the very similar extension of time provision in s 366 of the FW Act):

"[30] Mr Robinson arranged legal advice three days after the termination of his employment. At that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative's requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application.

[36] We find that there was an acceptable explanation of the reason for the delay in lodgement of the application - representative error resulting from the oversight of Mr Robinson's original representative of the electronic reminder whilst the filing of the application was within his care and responsibility. In circumstances where Mr Robinson had promptly sought legal advice following his termination, promptly executed a client agreement prepared on his instructions and, upon doing so, immediately instructed his original representative to lodge a general protections application, we find that he was entitled to rely upon his representative to act on his clear instructions to file an application and was blameless for the delay in lodgement of the application."

[18] Third, Qantas' contention that the authorities establish that there must be an acceptable explanation for the whole of the delay in lodging the application in order for exceptional circumstances to be found is wrong. Such a proposition was expressly rejected in the Full Bench decision in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters.[12]

[19] In this case, there was uncontested evidence concerning the circumstances which led to the delay in the lodgment of Mr Rogers' application. That evidence was, we consider, sufficient to support a conclusion that exceptional circumstances resided in the failure of Mr Rogers' legal representative to act on his instructions and file the application within time.

[20] We are not persuaded that any of the matters raised by Qantas as justifying the grant of permission to appeal enliven the public interest. In this regard, we are not satisfied that the appeal raises any issue of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider that it is arguable that the decision of the Commissioner manifests an injustice, or that the result is counterintuitive or unjust. For the reasons we have already given, the legal principles applied are not disharmonious with other authorities concerning s 394(3).

[21] In conclusion, we are therefore not satisfied that it would be in the public interest to grant permission to appeal. Therefore, as required by s 400(1) of the FW Act, permission to appeal is refused.

R. Warren of Counsel and M. Azzi on behalf of Qantas Ground Services t/a QGS

[1] [2019] FWC 955

[2] 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, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[3] 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, 85 ALJR 398 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]

[4] [2010] FWAFB 5343, 197 IR 266 at [24] - [27]

[5] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

[6] 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]

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

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

[9] [1936] HCA 40, 55 CLR 499

[10] [2014] FWC 930

[11] [2011] FWAFB 2728, 211 IR 347

[12] [2018] FWCFB 901, 273 IR 156

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