Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2024] FWC 2419 and order PR779003 of Commissioner Schneider at Perth on 5 September 2024 in matter number U2024/6741

[1] Mr Sahil Verma has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act) against a decision[1] and order[2] of Commissioner Schneider issued on 5 September 2024, for which permission to appeal is required. In the decision, the Commissioner declined to grant an extension of time for the filing of Mr Verma's application for an unfair dismissal remedy against the respondent, Coles Supermarkets Australia Pty Ltd.

[2] The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.

[3] After setting out various procedural matters, the Commissioner determined that Mr Verma's dismissal took effect on 9 February 2024, being the date recorded as the effective date of dismissal in the termination letter issued to Mr Verma by the respondent. As such, the Commissioner determined that to have been made within time, Mr Verma's application needed to be filed by 1 March 2024, but it was not made until 9 June 2024 and was therefore filed outside the 21-day statutory timeframe prescribed by s 394(2) of the Act.

[4] The Commissioner proceeded to consider whether to allow a further period for Mr Verma's application to be made, having regard to the factors in s 394(3) of the Act. In relation to s 394(3)(a), the Commissioner considered Mr Verma's submissions as to the reasons for the delay, which are listed at [29] of the decision. This includes Mr Verma's contention that he did not have the capacity to lodge his application within the 21-day period due to a psychological condition. In this respect, the Commissioner considered a medical document produced by Mr Verma. While the Commissioner accepted that this document evidenced that Mr Verma was suffering from mental health concerns and had attended a hospital, the Commissioner concluded that it did not demonstrate that Mr Verma was incapacitated or incapable of filing his application at an earlier time. The Commissioner did not otherwise accept that any of the matters relied upon by Mr Verma provided a satisfactory explanation for the delay.

[5] The Commissioner was satisfied for the purposes of ss 394(3)(b), (c) and (d) that Mr Verma was aware of his dismissal at the time it had taken effect but did not take any action to dispute his dismissal until he contacted the respondent on 15 May 2024, around 96 days after the cessation of his employment. The Commissioner did not regard there to be any prejudice accruing to the respondent in the circumstances. As to the merits of Mr Verma's substantive application, the Commissioner found that there were a series of contested issues between the parties and it was not possible to make any firm or detailed assessment of the merits for the purposes of s 394(3)(e), absent a hearing at which the parties gave evidence about those matters. The Commissioner also concluded that there was nothing relevant to weigh in his consideration of the fairness factor in s 394(3)(f) of the Act.

[6] Having regard to the findings that he made in relation to the above factors, the Commissioner concluded that there were no exceptional circumstances such as to exercise his discretion to extend time and dismissed Mr Verma's application.

[7] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 400 of the Act applies to this appeal, as it is from a decision made under Part 3-2 of the Act. By 400(1), the Commission must not grant permission to appeal unless it is in the public interest to do so. Section 400(2) provides that an appeal on a question of fact can only be on the ground that the decision involved a significant error of fact. The test under s 400 is "a stringent one."[3]

[8] 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 or a preference for a different result.[5] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[6]

[9] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[10] An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[7] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.

[11] In the section of the Notice of Appeal which specifies the grounds of appeal, Mr Verma states as follows:

"My termination is Questionable and There has been no opportunity provided by Coles to carry out an informed senior management internal review and investigation of my unfair dismissal and hence my termination statement is backed by incomplete legal proceedings and misleading and untrue facts and the 21 day window must be applicable to only truthful, legal , lawful and fully compliant employment contracts conditions otherwise the 21 day window cannot apply because something that is questionable and acting lawful and truthful verification procedures which is preliminary step for any legal procedure that is totally illegal to be held in court of law and no judgement shall be passed by court of law on any matter that is questionable and fails to establish the basic foundations of truth hence the decision made my the Commission must be reviewed in the light of above facts."

[12] In the section of the Notice of Appeal which describes the decision under appeal, Mr Verma sets out his concerns. We have summarised these matters as follows:

• (1) The Commissioner failed to acknowledge that the respondent did not conduct an investigation before the dismissal. Further, Mr Verma was not informed of any investigation. As such, the dismissal is unfair.

• (2) In circumstances where Mr Verma has the right to seek review of the respondent's decision, and the respondent did not act with procedural fairness, the 21-day statutory timeframe does not apply to Mr Verma's case.

[13] In his written submissions, Mr Verma submits that his application for an extension of time was based on medical grounds. Mr Verma believes that the Commissioner made an error in "judging" Mr Verma's mental state despite the medical evidence provided. Mr Verma supplemented this position orally during the hearing before us and said that the medical evidence before the Commissioner should have been sufficient to support his request for an extension of time. Further, Mr Verma contends that the respondent's witness lied to the Commission during the first instance proceedings.

[14] Mr Verma seeks to rely upon fresh evidence in the appeal, being a document dated 26 July 2024. We do not propose to further identify that document in this decision given the sensitive subject matter of the material. Section 607(2) of the Act confers a discretion on the Full Bench to admit further evidence and take into account any other information on appeal. However, it is by no means a matter of course that it will do so.

[15] The principles governing the discretion to admit new evidence or to consider further material are set down in Akins v National Australia Bank (Akins),[8] although it is permissible in an appropriate case to depart from them.[9] We are satisfied that the fresh evidence is credible. While the document was in existence prior to the hearing before the Commissioner, we accept that it was not in Mr Verma's possession until after the decision was issued. Relevant material that comes to light subsequent to the time of an initial hearing may be admitted if it bears on an issue to be determined in the appeal.[10] Such is the case here. In the circumstances, we consider that the material carries a high degree of probative value such that there is an appropriate basis to allow the fresh evidence to be admitted for the purposes of determining Mr Verma's application for permission to appeal. This is so in circumstances where the appeal challenges the Commissioner's decision-making in respect of Mr Verma's mental health condition (being a matter about which the fresh evidence is focussed) as a reason for the delay.

[16] Having considered the fresh evidence_,_ together with Mr Verma's written and oral submissions, we have determined that we must decline Mr Verma's application for permission to appeal. Our reasons for this conclusion follow.

[17] Mr Verma submits that the 21-day time limit that applies to an application under s 394 of the Act should not apply to his circumstances. However, this argument cannot be sustained. The time limit reflects Parliament's intention that such applications are to be made promptly, and the rule applies to all applications of this kind filed in the Commission. While the Act recognises that there are some cases where a late application should be accepted, the Commission must be satisfied that there are exceptional circumstances. The test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) of the Act establishes a "high hurdle" for an applicant for an extension.[11] A decision to extend time under s 394(3) involves the exercise of a broad discretion.[12]

[18] Mr Verma's grounds of appeal do not demonstrate an arguable error in the exercise of the Commissioner's discretion. Mr Verma says that the Commissioner did not acknowledge his argument that there was no investigation, or an inadequate investigation, undertaken by the respondent before the dismissal. However, it was not necessary for the Commissioner to determine this issue at this stage. This is because the Commissioner was not dealing with Mr Verma's substantive unfair dismissal application. Rather, the hearing was convened for the purposes of determining a threshold issue, being whether to grant Mr Verma an extension of time. Without an extension of time, Mr Verma's unfair dismissal application could not proceed. To this end, the Commissioner's approach to determining the extension of time application as a preliminary matter was legally correct. The Commissioner considered each of the matters to which he was to have regard under s 394(3) of the Act.

[19] Mr Verma believes that the medical evidence before the Commissioner should have been sufficient to support his request for an extension of time. We do not consider this contention to be arguable. Having now considered the fresh evidence together with the medical evidence before the Commissioner at first instance, no arguable error arises from the Commissioner's finding. While Mr Verma was hospitalised on 20 May 2024, the medical evidence does not show that he was medically incapable of filing his application in the period between the dismissal date and 20 May 2024. Relevantly, in this period, Mr Verma said that he held ongoing employment at a convenience store until in or around March 2024. Further, Mr Verma was actively looking for alternative employment opportunities. While commendable, these matters appear to further support the Commissioner's conclusion that Mr Verma was not "incapable of" or "incapacitated from" filing his application prior to 9 June 2024, being the date it was made.

[20] Mr Verma's remaining contention is that one of the respondent's witnesses lied during the proceedings. However, Mr Verma does not connect this concern to any alleged error on the part of the Commissioner_._ Accordingly, this contention cannot give rise to an arguable case of appealable error.

[21] We understand that Mr Verma considers his application should proceed to a full hearing of its merits. However, as the above consideration demonstrates, the appeal does not disclose any arguable errors in the decision. Nor do we consider that the appeal attracts the public interest. Specifically, we are not persuaded for the purposes of s 400 of the Act that the appeal raises any genuine issue of law, principle or wider application. It follows that we must refuse permission to appeal in accordance with the stringent test in s 400(1) of the Act.

[22] For the reasons given, permission to appeal is refused.

[1] [2024] FWC 2419

[2] PR779003

[3] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]

[4] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]

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

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

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

[8] Akins v National Australia Bank [1994] 34 NSWLR 155

[9] JJ Richards & Sons Pty Ltd v Transport Workers' Union of Australia (2010) 202 IR 180; [2010] FWAFB 9963 at [95]; Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35; [2014] FWCFB 1317 at [18]; C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [21] - [25]; Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [11]

[10] Michael Loftus v Earth Force Personnel Pty Ltd [2014] FWCFB 1978 at [15]; The Australian Workers' Union v Killarnee Civil & Concrete Contractors Pty Ltd, ITF The Thompson Family Trust; Construction, Forestry, Mining and Energy Union [2011] FWAFB 4349 at [22]

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

[12] See, House v The King [1936] HCA 40, 55 CLR 499

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