Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision ( [2017] FWC 4019) of Commissioner Wilson at Melbourne on 2 August 2017 in matter number U2017/6436 - application under s.606 for a stay order.

[1] On 14 August 2017, Woolworths Limited (Woolworths) lodged an appeal against a decision of Commissioner Wilson in which the Commissioner granted an extension of time under s.394 of the Fair Work Act 2009 (the Act) for the making of an application for an unfair dismissal remedy in accordance with Part 3-2 of the Act.

[2] A stay is sought of the whole decision[1] and orders of Commissioner Wilson, together with the whole of the directions issued by the Fair Work Commission (the Commission) on 8 August 2017 in relation to matter number U2017/6436. The practical effect of a stay would be to pause these directions, which require the preparation of material for a hearing of the unfair dismissal application, until the appeal is determined.

[3] Section 606(1) of the Act provides:

"If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order."

[4] It is well established that before a stay order is granted, the Commission is required to be satisfied that an arguable case exists with some reasonable prospects of success in respect of both the question of permission to appeal and the substantive merits of the appeal, and that the balance of convenience favours the granting of a stay order.

[5] This test for granting a stay order was outlined by Vice President Ross (as he then was) in Edghill v Kellow-Falkiner Motors Pty Ltd.[2] That approach was subsequently confirmed by a Full Bench of the Commission.[3]

[6] Section 400(1) of the Act also applies to the appeal. Section 400(1) provides:

"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."

[7] Consideration of whether Woolworths' appeal is arguable with reasonable prospects of success must therefore take into account its prospects of obtaining permission to appeal under s.400(1) of the Act. As was stated by the Full Bench in WorkPac Pty Ltd v Bambach[4]:

"Section 400 manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than that pertaining to appeals generally (compare s.604(2) and s.400)."[5]

[8] There is, therefore, a higher threshold for permission to appeal against a decision made under Part 3-2 of the Act. In GlaxoSmithKline Australia Pty Ltd v Makin[6] (GlaxoSmithKline), some of the considerations that may attract the public interest were identified:

"...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..."[7]

[9] Section 400(2) of the Act provides:

"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] More generally, other errors said to have been made by the first instance decision-maker must be of a kind identified by the High Court of Australia in House v R[8].

[11] The required assessment of an appeal's prospects of success for the purposes of determining a stay application is of a preliminary nature only. The Commission will not have had the benefit of hearing the appellant's full argument and the opportunity to comprehensively peruse the case materials may not be available.[9]

[12] Ms Lin's application for unfair dismissal remedy dated 15 June 2017 (the Application) was received in the Commission on 16 June 2017. While the Application stipulated the date upon which Ms Lin's dismissal took effect as 14 December 2016, Commissioner Wilson accepted 13 December 2016 as being Ms Lin's last day of employment, based on material provided by Woolworths.

[13] In order for the Application to have been made within the required 21 days after the dismissal took effect, it should have been made to the Commission by no later than 3 January 2017.[10] As it turns out, the Application was lodged on 16 June 2017. This was 164 days out of time.

[14] Section 394(2) of the Act requires an application for unfair dismissal remedy to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). The Commissioner considered whether an extension of time should be granted to Ms Lin and was satisfied there were exceptional circumstances for a further period to be allowed for the making of the Application.

[15] The Commissioner noted that in considering an application for an extension of time for the making of an application for unfair dismissal remedy, the Act requires him to have been satisfied that there were exceptional circumstances to warrant the extension, taking into account the criteria outlined in s.394(3) of the Act. He further noted that a decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion[11] and the Full Bench of the Commission has previously held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[12]

[16] Woolworths objected to the Application because it was commenced after the 21-day statutory period and submitted that the circumstances of the matter were such that an extension of time should not be granted. Woolworths also argued that Ms Lin had not been dismissed but rather, she had resigned on 14 December 2016.

[17] In his decision, the Commissioner had regard to the documents filed by both parties ahead of the hearing, the oral evidence and submissions of Ms Lin and the submissions made on behalf of Woolworths. The Commissioner considered the matters he was required to take into account pursuant to sections 394(3)(b), 394(3)(c), 394(3)(e) and 394(3)(f) to be neutral[13] and he did not consider there would be "undue prejudice" to Woolworths (s.394(3)(d)) if an extension was granted.[14]

[18] As to whether there was an acceptable explanation for Ms Lin's delay in making the Application (s.394(3)(a)), the Commissioner found Ms Lin's explanation about the delay to be three things in combination:

• her mental illness;

• her lack of knowledge about her rights to challenge what she perceived to be a dismissal; and

• her misapprehension that the making of an anti-bullying application to the Fair Work Commission may have provided a remedy after she left Woolworths.[15]

[19] The Commissioner's conclusion as to whether there was an acceptable reason for the delay was as follows:

"[38] In relation to these three potential explanations for the making of a late application, in my view none would be sufficient on their own to rise to the level of being exceptional circumstances for the granting of an extension of time for the making of an unfair dismissal application.

[39] While the Commission is sympathetic to people with mental illness, on its own mental illness would be unlikely to be a sufficient reason to grant an extension of time, and especially one for such a long period as Ms Lin's. This would be especially so where there was no evidence that a period of hospitalisation covered the whole of the delay, or where the evidence about the debilitation of the illness, other than in the period of hospitalisation, was as generalised as that put forward by Ms Lin.

[40] In relation to the lack of knowledge about her capacity to make an unfair dismissal application, the fact that a person knows little of their rights, or that they may have been seeking general advice about what to do, is neither unusual nor exceptional. Similarly, mere ignorance of the statutory time limit is not an exceptional circumstance.

[41] Similarly misapprehension about the potential range of results from a particular form of application to the Fair Work Commission would, on its own, be insufficient for the Commission to grant an extension of time.

[42] However, in combination the presence of these three factors leads me to form the view that Ms Lin has put forward an acceptable reason for the delay in making her application. In combination the matters are unusual and significant and cogently explain why the application was made as late as in Ms Lin's case. The factors combined, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[43] Accordingly, this criterion resolves in Ms Lin's favour in my consideration of whether an extension of time for filing should be granted." [16]

[20] Ultimately, the Commissioner was satisfied there were exceptional circumstances for a further period to be allowed for the making of the Application. He granted an extension of time pursuant to s.394 of the Act and said he would issue an order that the time for Ms Lin to file the Application be extended until 16 June 2017.

[21] The Commissioner returned the Application to the general unfair dismissal list for determination on the merits and, on 8 August 2017, the Application was listed for a Jurisdiction (No Dismissal) and Arbitration Conference/Hearing from 11 October 2017 - 13 October 2017, with requirements for the parties to file and serve their material. The first step in the requirements is for Woolworths to file and serve its Outline of Argument: objections, Statement(s) of Evidence and Document List by no later than noon on 21 August 2017.

[22] At the hearing of the application for the stay on 16 August 2017, Woolworths sought permission, pursuant to s.596 of the Act, to be represented by a lawyer. I granted Woolworths permission to be represented by Mr Connolly in these proceedings, pursuant to s.596(2)(a) of the Act because I was satisfied that the matter could be dealt with more efficiently if Woolworths was represented, given its complexity.

[23] Woolworths' grounds of appeal comprise 8 paragraphs.[17]

[24] In paragraph 1, Woolworths contends the Commissioner erred by exercising his discretion in an erroneous manner in that he did not find one factor that convinced him was acceptable for the delay, yet when he combined them, he found there was an acceptable reason for delay. Woolworths submitted the Commissioner gave no reasoning for coming to this ultimate conclusion.

[25] In paragraph 2, Woolworths contends the Commissioner erred by considering and being guided by irrelevant factors in exercising his discretion and finding that there was an acceptable reason for the delay.

[26] In paragraph 3, Woolworths submits the Commissioner erred in exercising his discretion by putting too much weight on the Applicant's evidence of her illness and its background and despite objection from the Appellant on the acceptance of medical evidence without calling evidence from a qualified medical practitioner and the Applicant being on notice to do so.

[27] In paragraph 4, Woolworths claims the Commissioner erred in finding that Ms Lin, in becoming aware of the termination of her employment on 14 December 2016, that this was then a "neutral factor", when it ought have been a factor in favour of Woolworths and a factor militating against a finding of exceptional circumstances.

[28] In paragraph 5, Woolworths submits the Commissioner erred by failing to take a range of material considerations into account:

• its filed written submissions in the reasoning of his decision;

• its objections to medical evidence being given by Ms Lin as to her illness without calling a qualified doctor who could, with proper qualifications, explain the effect of the Ms Lin's illness on her capacity and to explain the whole and extended delay;

• its written submissions on the impact of the Release Agreement and the contents of the Release Agreement itself and its likely effect on the merits and his failure to consider the whole of the Agreement;

• the submissions of Union (The Shop, Distributive and Allied Employees' Association [SDA]) presence and support given to Ms Lin and its effect in coming to his conclusion that exceptional circumstances existed and also in determining that ignorance of the Commission's functions was a valid consideration;

• the entirety of the period between the expiration of the 21-day time limit and the ultimate filing of the unfair dismissal application and the lack of accountability of Ms Lin for the whole of the period, including, from the date she said in her evidence that she first found out she could file an unfair dismissal proceeding and the strict time limit and 16 June 2017;

• Ms Lin's ability to file Commission anti-bullying proceedings in as early October 2016 and her awareness of the Commission and its functions as far back as then, and that she had access to Union advice and assistance at the relevant times; and

• the extended length of time the Application was late and a failure to properly apply the higher threshold this matter required, given its extended lateness and given all the circumstances.

[29] In paragraph 6, Woolworths contends the Commissioner erred by finding that the merits was a neutral factor, when it ought to have been a factor in favour of Woolworths. In this regard, it relies on the material before the Commissioner, decided cases on the issue of signed Release Agreements in the Commission and the full content of the Release Agreement that was before the Commissioner in evidence.

[30] In paragraph 7, Woolworths claims the Commissioner erred by not accepting that an employer and employee can, by agreement, reclassify and re-determine how the employment is to be characterised as coming to an end (under a Release Agreement), which if properly found/accepted would have further supported "merits" being found in its favour.

[31] In paragraph 8, Woolworths contends the Commissioner erred in that his decision was guided by irrelevant factors, namely:

• Ms Lin's lack of knowledge of the unfair dismissal jurisdiction - this is not accepted by the Commission as a relevant or acceptable factor in determining exceptional circumstances;

• Ms Lin's ignorance that the one anti-bullying application would cover all applications in the Commission - again, ignorance of the Commission's functions and processes is not a relevant or acceptable factor in determining exceptional circumstances; and

• Ms Lin's evidence, without any corroborating expert medical evidence, on the whole history and detail of her medical condition including background and health before the cessation of employment and it being accepted as accounting for the whole of the 164-day period of the delay despite the Commissioner being critical of the Applicant's evidence and its impact on her reason for delay.

[32] In its written outline of submissions on the stay application, Woolworths firstly addressed the requirements that an arguable case exists and submits it has enlivened the principles in GlaxoSmithKline in that:

1. issues of importance and general application on s.394(3) of Act are raised;

2. it is time further guidance was issued by the Full Bench on the proper application of s.394(3) of the Act, given this decision at first instance;

3. the decision at first instance manifests an injustice; and

4. the result at first instance is counter intuitive and needs to be corrected by the Full Bench.

[33] Woolworths submitted the Commissioner erred in his discretion by allowing irrelevant factors to guide him. It also submitted the Commissioner failed to take material considerations into account and repeated the matters it raised in Paragraph 5 of its grounds of appeal (see paragraph [28] above). Woolworths also repeated its submission that the Commissioner erred in finding that the merits was a neutral factor.

[34] As to the balance of convenience, Woolworths submits the balance lies with it for the following reasons:

• there are no outstanding orders to reinstate or pay Ms Lin any compensation;

• the stay simply will operate to sensibly pause the directions in this matter which currently require preparation of the unfair dismissal proceeding for a hearing where (if the stay was not granted) costs and resources would have to be directed at the same time a request to appeal is being considered on whether the unfair dismissal application ought even proceed at all;

• a stay would prevent the possibility of costs and other resources being wasted and thrown away on preparing for the unfair dismissal proceeding, should Woolworths be successful on an appeal;

• Ms Lin's only prejudice is by having to wait a little longer to see whether her application for unfair dismissal will proceed whilst Woolworths exercises its right to seek to have an appeal heard on this matter; and

• given Ms Lin waited over 6 months to file her unfair dismissal proceeding, Woolworths cannot see how, in exercising its rights under the Act to seek an appeal, a further, relevantly short period, will not prejudice Ms Lin to an extent that the balance of convenience should fall in her favour and against Woolworths, given all the circumstances.

[35] Ms Lin had advised at the commencement of the hearing that she had not received the Form F7 - Notice of Appeal or the Outline of Submissions of Woolworths on the stay application, despite these documents having been sent to her via email correspondence to her nominated email address. An adjournment was granted to allow Ms Lin to review these documents and she made oral submissions. Ms Lin stated she did not comprehend what Woolworths had submitted during the hearing of the stay application. I attempted to explain to her, through an interpreter, the purpose of the stay application and its impact, should it be granted. Ms Lin's submissions ultimately went largely to the merits of the Application, although she did address the balance of convenience, submitting there should be no delay in the timetable for directions and hearing of the merits of the Application.

[36] Woolworths has advanced a number of arguments in support of its assertion that it has an arguable case with some reasonable prospects of success for both permission to appeal and the merits of the appeal. Based on the material before me and the respective arguments made by both parties and the particular circumstances of this case, I am persuaded this is the case.

[37] It is unnecessary from me to deal with each and every one of the appeal grounds and arguments put in support at this stage. I am persuaded that at a minimum, appeal grounds 1, 2 and 8 disclose there is an arguable case for both permission and the merits of the appeal that the Commissioner erred in finding there was an acceptable reasonable reason for the delay and reached a conclusion that is arguably counter-intuitive and unjust, having taken into account irrelevant factors.

[38] Further, I am persuaded that appeal ground 4 discloses there is an arguable case for both permission and the merits of the appeal that the Commissioner erred in finding that Ms Lin's becoming aware of the termination of her employment on 14 December 2016 was a neutral factor. I also consider it is arguable that the Commissioner fell further into error by failing to have regard to the entirety of the period between the expiration of the 21-day time limit and the ultimate filing of the Application,[18] particularly since the evidence appears to have disclosed that Ms Lin discovered she could file an unfair dismissal proceeding (together with the strict time limit) approximately 7 weeks prior to making the Application.

[39] In the circumstances of this matter and having regard to the submissions of the parties, I am satisfied the balance of convenience favours the granting of a stay. A stay in this matter will operate to place a pause on the requirements relating to the preparation of materials for the determination of the merits of the Application while Woolworths seeks permission to appeal and the Commission deals firstly with that application and then the appeal proper, should permission be granted.

[40] A stay does not deny Ms Lin an order for compensation or reinstatement in the short term. One may however spare both parties spending time and money to no effect, should permission to appeal be granted and the appeal be upheld. Ms Lin will not be prejudiced by any delay resulting from the operation of a stay to an extent that swings the balance of convenience in her favour, when one considers the history behind the Application.

Pending the hearing and determination of the Woolworths appeal or further order, the whole of the decision[19] and orders of Commissioner Wilson, together with the whole of the directions issued by the Commission on 8 August 2017 in relation to matter number U2017/6436 are stayed. A stay order will be issued separately.

[1] [2017] FWC 4019.

[3] Kellow-Falkiner Motors Pty Ltd v Edghill Print S4216, applied in Bank of Sydney Ltd v Repici [2015] FWC 5511.

[4] WorkPac Pty Ltd v Bambach [2012] FWAFB 3206.

[6] [2010] FWAFB 5343.

[8] [1936] HCA 40; (1936) 55 CLR 499.

[9] Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9].

[10] Fair Work Act 2009 (Cth), s 394(2).

[11] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [9].

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

[13] [2017] FWC 4019 at [4], [47], [56] and [57].

[17] Form F7 - Notice of Appeal dated 14 August 2017 at 2.1.

[18] Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31].

[19] [2017] FWC 4019.

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