Abbas Raza v Harbour Roof Tiling Pty Ltd
[2017] FWCFB 4042
•15 AUGUST 2017
| [2017] FWCFB 4042 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Abbas Raza
v
Harbour Roof Tiling Pty Ltd
(C2017/1799)
| Vice President Catanzariti | sydney, 15 AUGUST 2017 |
Appeal against decision [2017] FWC 1662 of Deputy President Dean at Sydney on 23 March 2017 in matter number U2016/11932.
Mr Abbas Raza (“the Appellant”) has applied for permission to appeal against a decision of Deputy President Dean delivered on 16 March 2017 (an edited version of her ex tempore decision was issued on 23 March 2017).[1] The Appellant’s application for an unfair dismissal remedy pursuant to section 394(3) of the Fair Work Act 2009 (Cth) (“the FW Act”) was lodged some 8 months outside the statutory time limit of 21 days. In her Decision, the Deputy President was not satisfied that there were any exceptional circumstances that warranted the granting of an extension of time. The Deputy President issued an Order to this effect on 16 March 2017.[2]
The matter was listed for hearing on the issue of permission to appeal only on 1 May 2017. At the hearing, the Appellant appeared for himself and Ms D. Dinnen, of Counsel, sought permission to appear for Harbour Roof Tiling Pty Ltd (“the Respondent”). We note that the Appellant objected to the Respondent being granted permission to be represented. However, given the complexity of the matter and having regard to section 596 of the FW Act, permission was granted to the Respondent to be represented.
At the outset of the proceedings, the Full Bench asked the Appellant about his intentions in relation to his general protections application (s.372 of the FW Act), which had recently been the subject of a successful but separate appeal in matter C2017/1312.[3] In that separate appeal, the Full Bench concluded that the Commission’s jurisdiction in relation to the Appellant’s s.372 application had expired, and that the Commission may only attend to the administrative steps of closing the matter. The Appellant was informed that the s.372 application may still be pursued with the Federal Court of Australia (“FCA”) or the Federal Circuit Court (“FCC”). As a result of the Appellant’s dismissal, we are of the view that the Appellant will require leave of the FCA or the FCC to correct his application to a general protections application involving dismissal (s.365), which is a discretionary determination for the FCA or the FCC.
In the event that leave is granted by the FCA or the FCC, the Appellant will have to determine whether to pursue his s.394 or s.365 application. This is because, in relation to the present matter, s.725 of the Act prevents the Appellant from making a s.365 application until after the unfair dismissal application has been withdrawn, failed for want of jurisdiction or failed because the dismissal was a case of genuine redundancy.
For this reason, we adjourned the matter to allow the Appellant to seek advice as to whether he wished to continue with his unfair dismissal or general protections application. The intention was to give him the chance to discontinue one of these applications, so that both the Commission and the Appellant benefit from saving time and resources.
The Appellant elected to proceed with his general protections application and requested that no further hearing occur on this matter. The Appellant expressed this position in correspondence to the Vice President’s Chambers dated 15 May 2017 as follows:
“Assuming the application [s.372 General Protections application subject of the appeal C2017/1312] filed in FWC is transferred to FCC or Federal Court without filing any further applications, I happily apply to have my unfair dismissal application to be finalised with no further orders made (sic) …
I may however be provided with reasons, I was never so provided, how the two applications as filed in the form and for the reasons by me, could not run concurrently (sic) …
I request not to list the appeal for any further hearing and only provide me with detailed reasons (sic).”
Although the Appellant indicated that he had chosen to discontinue his unfair dismissal application, he requested reasons in relation to his appeal against the decision of Deputy President Dean. As a result of this and since the Appellant has delayed in withdrawing his application, we have chosen to determine the question of permission to appeal below.
Given the Appellant’s preference that no further hearing occur in this matter, we have considered whether there were contested facts before Deputy President Dean at first instance to require a hearing and we are not satisfied there were any contested facts. The Deputy President dealt only with the question of extension of time, finding there were no exceptional circumstances warranting an extension to the statutory time limit for filing an unfair dismissal application. The Deputy President considered the submissions put forward by the Appellant when reaching this conclusion. In this regard, as there were no further submissions made by the Appellant, there was no dispute over the existence of facts.
Permission to Appeal Principles
Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact” (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.[4] The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] In GlaxoSmithKline Australia Pty Ltd v Makin 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.”[6]
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.[7] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so.
Grounds of Appeal
We note the Appellant made detailed submissions and we briefly summarise those submissions into the following grounds of appeal:
a) The Deputy President failed to be guided by the rules of fairness and independence;
b) The Deputy President erred by considering the extension of time issue before the issues of the Applicant’s minimum employment period and employment status; and
c) The Deputy President erred in not finding that the Applicant’s circumstances satisfied the exceptional circumstances test.
We also note the Appellant made further submissions after the hearing in correspondence to the Commission dated 10 July 2017, which we have considered and will not recite for the purposes of this Decision.
Consideration
We now turn to consider whether permission to appeal should be granted on the material before us.
The question of whether the Appellant should be granted an extension of time had to be determined in accordance with the relevant provisions of the FW Act. The Deputy President applied those principles in an orthodox manner. We are not satisfied that there is an arguable case of error in relation to this part of the Decision.
Many of the submissions relied upon by the Appellant relate to the Deputy President’s findings, which led to the conclusion that there were no exceptional circumstances warranting an extension of time for the Appellant’s application for unfair dismissal. The Deputy President relied only on the date of when the employment relationship ended, according to the Appellant’s submissions this was 14 December 2015. From this undisputed fact, the Deputy President concluded that the application was out of time. The Deputy President was within her rights in determining this issue on the basis that, if the Appellant could not satisfy this requirement, the rest of his application was futile. No further submissions were made by the Appellant as to whether exceptional circumstances should be considered. The Deputy President applied the relevant factors of the FW Act in an orthodox manner. As such, we are not satisfied that there is an arguable case of error in relation to those findings.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
(a) There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) The appeal raises issues of importance and/or general application;
(c) The decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) The legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied, for the purpose of s.400(1) of the FW Act, that it would be in the public interest to grant permission to appeal.
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
A. Raza for himself.
D. Dinnen, of Counsel, for the Respondent.
Hearing details:
2017
Sydney:
1 May.
[1] [2017] FWC 1662.
[2] PR591062.
[3] [2017] FWCFB 2248.
[4] (2011) 192 FCR 78 [43].
[5] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398, [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, [44]-[46].
[6] (2010) 197 IR 266 [27].
[7] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].
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