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[30]
[2023] FWCFB 113
General information, not legal advice.
Fair Work Commission (Full Bench)
2023-07-04
Original judgment source is linked above.
s.604 - Appeal of decisions
Appeal against decision [2023] FWC 750 of Deputy President Binet at Perth on 11 April 2023 in matter number U2023/1063 - permission to appeal refused.
[1] Ms Tayla Higgins (the Appellant) worked for FQM Australia Nickel Pty Ltd (the Respondent) from 28 July 2021 until 28 December 2022, when she was dismissed.
[2] On 9 February 2023, Ms Higgins applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Section 394(2) of the Act requires applications to be made within 21 days after a dismissal took effect. Section 394(3) allows the Commission to extend the time for making an application if satisfied that there are exceptional circumstances.
[3] On 11 April 2023, Deputy President Binet decided not to extend the time for Ms Higgins to make her unfair dismissal application and published her reasons for not doing so (the Decision).[1] Ms Higgins now seeks permission to appeal the Decision.
[4] Under sections 400 and 604 of the Act, Ms Higgins can only appeal the decision with the permission of the Full Bench. Under s.400 permission to appeal can only be granted if we are satisfied that it is in the public interest to do so.
[5] Both parties consented to the matter being determined on the papers.
[6] For the following reasons, we have decided not to grant permission to appeal.
[7] In her Decision, the Deputy President set out details of the evidence presented in the case followed by background information concerning the Appellant's employment and subsequent dismissal. Relevantly, the Deputy President set out the following evidence concerning the delay in lodging the application:
the 'show cause' process leading up to the dismissal aggravated the Appellant's existing anxiety and depression;
on 28 December 2022, the Appellant developed severe abdominal pain leading her to attend the Emergency Department of the Peel Health Campus and that from this date until 16 February 2023, she suffered from physical and mental symptoms that were so severe she was unable to attend important medical appointments, including one with her psychiatrist on 5 January 2023;
the Appellant's psychologist reported that the Appellant was unable to secure an appointment with her between 23 December 2022 and 16 February 2023;
on 3 January 2023, the Appellant contacted the safety regulator (DMRIS) to request they investigate her allegations of workplace bullying and sexual harassment;
on 30 January 2023, the Appellant began exploring the option of an unfair dismissal application and discovered that a 21-day time limit applied, and on the same day she was advised by the Fair Work Ombudsman (the FWO) that she could apply for an extension of time to make the application;
the Appellant then undertook her own research, contacted two legal firms and the Commission's pro bono legal service to obtain advice, and then when she was informed of the likely delay in obtaining an appointment, she decided to prepare the application herself;
the Appellant lodged an unfair dismissal application on 9 February 2023; and
on 22 February 2023 the Appellant was advised by the Commission that the application had been filed out of time, that an extension of time could only be granted in exceptional circumstances, and requesting the Appellant to respond in writing by 27 February 2023 explaining why she considered the circumstances were exceptional and providing any supporting evidence: "For example, if you rely on a medical condition as the reason for your delay, you should supply a medical certificate or report which specifically explains why your medical condition prevented you from making your application within time".
[8] The Deputy President then set out her factual findings regarding the relevant dates the Appellant's dismissal took effect, the calculation of the 21-day period, the date the application was made and the relevant law and legal principles relevant to an extension of time.
[9] The Deputy President then turned to each of the matters the Commission is required to consider in determining whether exceptional circumstances exist. In relation to the reasons for the delay, the Deputy President summarised the Appellant's submissions as to the reasons for delay at paragraph [70] as follows:
[10] The Deputy President concluded that the evidence before her did not provide a reasonable explanation as to why the Appellant did not file the application between 3 January 2023 and 9 February 2023. The Deputy President considered that 'stress, anxiety or low mood and motivation following employment ending is common, not unusual' and without more, are not exceptional circumstances, and that:
"while the Appellant's evidence was that she was feeling unwell until at least 16 February 2023 and that her then unmedicated ADHD impacted on her ability to organise her affairs:
d. she was well enough on 9 January 2023 to file a detailed Form F2."[2]
[11] We note that the reference to 9 January 2023 is clearly a typographical error and is a reference to 9 February 2023.
[12] The Deputy President found that although the Appellant had been made aware of the importance of medical evidence to support any assertion that the delay in making the application was because of a medical condition, no such medical evidence was before the Deputy President. The letter from the Appellant's treating psychologist noted that the Appellant reported to be suffering from various mental health ailments and was unable to secure an appointment between 23 December 2022 and 16 February 2023.
[13] The Deputy President then found that it was clear from 18 January 2023 that the regulator, DMRIS, did not intend to take the matter further, that it was a further 12 days before the Appellant explored a remedy with the Fair Work Ombudsman on 30 January 2023, that she was made aware of the 21-day time limit on that date, and a further 10 days elapsed before the application was made on 9 February 2023.
[14] In relation to the other considerations the Deputy President was required to take into account in assessing whether there were exceptional circumstances, she considered that one matter, action taken by the Appellant to dispute the dismissal, weighed in favour; one weighed against such a conclusion (fairness as between the Appellant and other persons in a similar position), and the remaining three were neutral. Having regard to all the matters, the Deputy President was not satisfied that there were exceptional circumstances and as a result, there was no basis to allow the Appellant additional time to make her application.
[15] An appeal under s.604 of the 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.[3] There is no right to appeal. An appeal may only be made with the permission of the Commission.
[16] This appeal is one to which s 400 of the Act applies. Under s 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal matters unless it considers it is in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.
[17] The test under s 400 has been characterised as 'a stringent one.'[4] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] The public interest is not satisfied simply by the identification of error,[6] or a preference for a different result.[7] In GlaxoSmithKline Australia Pty Ltd v Makin[8] 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 the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."[9]
[18] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is because an appeal cannot succeed in the absence of appealable error.[10] 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.[11]
[19] 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.[12] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
[20] We discern from the Appellant's Form F7 and her outline of submissions that the following grounds of appeal are pressed, those being that the Deputy President erred:
by failing to understand how ADHD leads affected individuals to struggle with everyday life such as time management, ability to follow instructions, procrastination and forgetfulness;
by failing to properly consider the letter from the Appellant's psychologist which was submitted shortly before the hearing, and that part of the reason for the late filing of the letter was because of her difficulties in obtaining an earlier appointment with the psychologist;
by failing to properly consider that the Appellant had made the application after having sought legal assistance from two law firms and the Commission and that the delay of 22 days was relatively small;
that part of the delay was because the Appellant was undertaking research and trying to gather evidence but faced blocks and was still suffering debilitating physical and mental symptoms;
that if an extension of time had been granted, the Appellant could have obtained more detailed medical evidence to support her claims;
by failing to fully understand the impact that the dismissal had on the Appellant which was of a degree that is not common; and
that there was an error of fact in that the Appellant misunderstood a question in cross-examination.
[21] We would observe at this point that some aspects of the Appellant's notice of appeal do not appear to point to errors in the Decision but are directed at the merits of her unfair dismissal case, which are not directly relevant to whether the Deputy President made an appealable error.
[22] The Appellant contends that the appeal is in the public interest considering her contentions about the conduct and culture of the Respondent's workplace and to highlight the barriers faced by individuals struggling with ADHD, and broader mental health issues.
[23] We have carefully reviewed all the material that was before the Deputy President and the Appellant's Notice of Appeal and written submissions.
[24] In relation to the first ground of appeal, we identify no error in the Decision. No criticism can be made of the Deputy President for allegedly failing to understand the impact of ADHD on individuals when no expert or medical evidence was before her. In any case, the Deputy President did take into consideration the Appellant's evidence that ADHD impacted her ability to organise her affairs, but also found on the evidence that the Appellant was able to engage with DMRIS, the Fair Work Ombudsman, law firms and ultimately prepare and file a detailed unfair dismissal application, and that the claimed impact of ADHD was not so great as to render her incapable of making her unfair dismissal application sooner.
[25] For similar reasons, no error is disclosed concerning the Deputy President's treatment of the letter from the Appellant's psychologist. The Appellant was on notice of the need to obtain medical evidence if she sought to rely on a medical condition to support an extension of time being granted. She had been directed to file any such evidence at an earlier date, and although the Appellant's evidence was that she received the letter on or around 24 March 2023, she could not explain why she had not filed it earlier, instead submitting it the morning of the hearing. In this context the Deputy President appropriately explained to Ms Higgins that as her psychiatrist was not available for cross-examination, less weight would be attached to the letter. The Deputy President did, however, take the letter into consideration. However, as the Deputy President set out at paragraph [76] of the Decision, the letter did not in fact record any medical diagnosis or how such a diagnosis might have prevented the Appellant from making her application until 9 February 2023. The letter merely noted that the Appellant reported suffering high levels of anxiety, distress and other symptoms and was unable to secure an appointment between 23 December 2022 and 16 February 2023. (We note there is a typographical error in the first sentence of paragraph [76] of the Decision where 'not' is omitted).
[26] There was no medical evidence concerning the reason for delay in filing the Application between the expiry of the 21-day period on 18 January 2023 and when the application was filed on 9 February 2023. The absence of any such evidence left the Deputy President with no basis upon which she could find there where was a credible explanation for that period of delay.
[27] In an appeal of a decision that dealt with the granting of an extension of time for a late application for an unfair dismissal remedy, the Full Bench in Australian Postal Corporation v Lili (Karen) Zhang[13] (Zhang) was required to similarly consider medical evidence advanced in support of the claim that the applicant in that matter had been incapacitated by trauma, stress and depression. The Full Bench relevantly stated as follows in relation to the absence of direct medical evidence going to the period of delay:
"[21] Drawing on the above, it does not appear that Ms Zhang was incapacitated for the period January 2015 until 24 April 2015 when her application was received by the Commission when, based on her own submissions, she was attending interviews for jobs. Nor does it appear that she was incapacitated prior to 20 September 2014 when she collected her possessions from Australia Post. More significantly, however, it is not clear to us on what basis the Commissioner felt qualified to make a determination that Ms Zhang suffered from PTSD in the immediate aftermath of her termination.
[22] In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application."
[28] The Full Bench's comments in Zhang stand for the proposition that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We concur with the Full Bench's comments in Zhang that 'compelling medical evidence' is required to support a conclusion that the reason for the delay was due to the individual's medical condition. The Deputy President in the present matter had no medical evidence before her, let alone 'compelling medical evidence', to explain the delay in filing the Application. Were the Deputy President to have accepted the Appellant's opinion that she was medically incapacitated between 28 December 2022 and 9 February 2023, the Deputy President would in our view have fallen into the same error identified by the Full Bench in Zhang.
[29] In relation to the third and fourth grounds of appeal, contrary to the Appellant's contention, the Deputy President did consider the Appellant's actions in undertaking research and trying to gather evidence. However, the Deputy President properly concluded that such actions did not support a finding of exceptional circumstances. Rather, they support the Deputy President's conclusion that, notwithstanding the Appellant's evidence about the impact of her ADHD, she was able to seek assistance, make enquiries and prepare and file the application. As to the delay being 22 days and 'relatively small', the Deputy President appropriately considered the length of the delay in the context of considering fairness as between the Appellant and other persons in a similar position, accurately noting that exceptional circumstances have not been found to exist in cases involving much shorter delays.
[30] As to the fifth ground of appeal, no error is disclosed. The Appellant was aware of the need for and afforded every opportunity to obtain detailed medical evidence to support her request for an extension of time but did not do so.
[31] No error is disclosed in relation to the Appellant's claim that the Deputy President failed to fully understand the impact that the dismissal had on her. In the absence of any relevant medical evidence, there was no basis for the Deputy President to conclude that the impact on the Appellant was extraordinary when compared to the impact of a dismissal on other persons, which have consistently been found do not constitute exceptional circumstances.
[32] In relation to the alleged error of fact in that the Appellant misunderstood a question in cross-examination, this contention of error is misconceived. The Appellant does not point to any alleged factual finding made by the Deputy President that is erroneous.
[33] The Deputy President was not satisfied on the material before her that the Appellant had no capacity to file the Application in the period between 28 December 2022 and 9 February 2023. That finding was in our view clearly open to her on the evidence. The Deputy President then weighed each of the criteria set out in s 366(2) before concluding that 'exceptional circumstances' were not present that would warrant an extension of time being granted. The Deputy President correctly identified the relevant law and applied it in an orthodox manner.
[34] We find no error in the Deputy President's conclusion, which was clearly open to her on the evidence.
[35] We are not satisfied that an arguable case of appealable error has been established. We are further not satisfied that the Deputy President acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her decision, mistook certain facts or failed to take into account material considerations.
[36] We are not satisfied that granting permission to appeal is in the public interest. The Appellant's clear dissatisfaction with the Decision does not mean, and we do not consider, that the Decision manifests an injustice, or that the result is counter intuitive having regard to the circumstances. The Decision is the result of the orthodox application of legal principles to the facts and there is no diversity of decisions in similar cases that would make it in the public interest to provide appellate guidance.
[37] For the above reasons, we are not satisfied that it is in the public interest to grant permission to appeal. Accordingly, permission to appeal is refused.
[3] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ.
[4] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 [43] (Buchanan, Marshall and Cowdroy JJ).
[5] 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] FCAFC 54; (2011) 192 FCR 78 at [44] - [46].
[6] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]- [27].
[7] Ibid at [26]-[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 and others (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].
[10] Wan v AIRC [2001] FCA 1803, 116 FCR 481 [30].
[11] 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].
[12] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
Printed by authority of the Commonwealth Government Printer
Tayla Brittany Higgins
FQM Australia Nickel Pty Ltd [2023] FWCFB 113
(2000) 203 CLR 194
(1989) 168 CLR 210
(2011) 243 CLR 506
(2011) 192 FCR 78
(2011) 192 FCR 178