Abdul Aboud v Nickal Pty Ltd T/A Plan & Grow
[2024] FWCFB 198
•26 APRIL 2024
| [2024] FWCFB 198 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Abdul Aboud
v
Nickal Pty Ltd T/A Plan & Grow
(C2023/8115)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 26 APRIL 2024 |
Appeal against decision [2023] FWC 3216 of Deputy President Beaumont at Perth on 5 December 2023 in matter number U2023/9816 – permission to appeal refused.
Mr Abdul Aboud seeks permission to appeal and to appeal the decision (Decision) of Deputy President Beaumont given on 5 December 2023 rejecting his application for an extension of time to make an application for an unfair dismissal remedy against the respondent under s 394 of the Fair Work Act 2009 (Cth) (Act).[1]
Procedural history
As the Decision records, there is a procedural history to Mr Aboud’s application for appeal, which is necessary to set out.
Relevantly, Mr Aboud first filed a Form F8 application on 11 November 2022. A second Form F8, with some additional information, was lodged on 12 November 2022. A Form F8 is an application used to commence a ‘general protections’ claim involving dismissal, made under s 365 of the Act. In Mr Aboud’s submissions in support of his application to appeal, he states that he also lodged an unfair dismissal application on 11 or 12 November 2022, or perhaps that he intended to do so – we return to this contention below.
There was initially a question as to whether Mr Aboud’s Form F8 application was lodged within time, because there was a dispute as to what date Mr Aboud’s employment was terminated. This issue was dealt with by Commissioner Schneider, who published a decision[2] on 28 July 2023. The Commissioner rejected the respondent’s submission that Mr Aboud was terminated on 28 July 2021 and instead found that the date of dismissal was 11 November 2022; accordingly, the Commissioner concluded that Mr Aboud’s general protections application was made within the 21-day period required by s 366 of the Act.[3] Mr Aboud was legally represented at the hearing.
There was and remains no challenge to Commissioner Schneider’s finding that the date of dismissal took effect on 11 November 2022.[4]
With the jurisdictional objection concerning alleged lateness having been dismissed by Commissioner Schneider, the Deputy President’s decision records that, on 4 September 2023, Mr Aboud’s general protections application was listed for a private conference pursuant to s 368(1) of the Act. That conference, which was conducted on 26 September 2023, did not lead to a resolution of the application and a certificate was issued under s 368 of the Act. [5] Mr Aboud was legally represented at the conference by the same lawyers.
The following day, on 27 September 2023, Mr Aboud engaged different lawyers, being the lawyers who represented him before us on his application to appeal.
On 4 October 2023, Mr Aboud’s new representatives sought the respondent’s consent for an arbitration, before the Commission, of Mr Aboud’s general protections claim. By s 369 of the Act, the Commission is empowered to conduct a general protections arbitration involving dismissal if both parties agree to the Commission arbitrating the dispute.
On 6 October 2023, the respondent informed Mr Aboud that it did not agree to a consent arbitration before the Commission. The respondent stated that, in its view, the appropriate venue for any further pursuit of the general protections claim was in a court.
On 9 October 2023, Mr Aboud:
· filed a Notice of Discontinuance for his general protections claim; and
· later on the same day, made an application for an unfair dismissal remedy in the prescribed Form F2 (the Form F2). The Form F2 was prepared with the assistance of Mr Aboud’s current lawyers.
In the Form F2, in response to the question asking whether the application was made within 21 days of the dismissal taking effect, the answer “No” was selected. The accompanying statement was provided in the form:
“I did not know what form to use. I now understand that I should not have made a general protection (sic) application for my dismissal. I did not even know that I had been dismissed. We have been through conciliation which failed. I wanted to have the matter arbitrated but the employer has not agreed to this. I now know that I should have made an application for unfair dismissal. I did not know this before. As a result of the criminal charge plus the dismissal or suspension, I suffered anxiety, depression and insomnia for which I receive treatment up to now. Also, I am not a welleducated person.”
In response to the question asking whether any other application has been made to the Commission concerning your dismissal, the following statement was provided (emphasis added):
“Yes I did make a claim for general protection (sic) but I have lodged a Form F50 to discontinue it and commence this application because this application for unfair dismissal is the appropriate one. The discontinued protection application was a wrong claim. There is now no other claim but this application for unfair dismissal.”
We have set out the above procedural history in some detail because, as foreshadowed above, Mr Aboud disputes the Deputy President’s finding that Mr Aboud’s unfair dismissal application was made out of time at all. For example, at paragraph [52] of Mr Aboud’s written outline in support of his application to appeal, he states (emphasis added):
“… the Applicant had intended to lodge a claim for unfair dismissal but that because of the absence of a date of dismissal, he ended up filling (sic) two forms (Form F2 and Form F8) both of which required a date of dismissal. He filled them in almost identical terms but only the Form F8 was accepted by the Commission. If the Form F2 had been accepted, it would have been the one before Commissioner Schneider.).”
Because Mr Aboud was making submissions to the effect that he already had commenced an unfair dismissal application in time (i.e. within 21 days of 11 November 2022), the Full Bench sent copies of the only two lodgement emails held by the Commission that were contemporaneous to the date of dismissal, namely:
· The first lodgement email in time was dated Friday, 11 November 2022 at 1.11pm (the 11 November 2022 email). It was titled “WA – Application Forms” and attached a Form F8 general protections application involving dismissal (the first Form F8).
· The second lodgement email in time was dated Saturday, 12 November 2022 at 12.59pm and also attached the same Form F8 application, albeit the section describing the ‘Alleged contravention’ had been completed at question 3.1, and the sections of the Act said to have been contravened were identified in question 3.2 (the second Form F8). A visual inspection of the second Form F8 shows it was identical to the first Form F8, save as noted.
The above two emails were sent to the parties shortly before the application for leave to appeal was heard. At the hearing, no party identified any different or additional document to the two described above nor, despite an opportunity to do so, has any document since been provided, other than the Form F2 filed on 9 October 2023 which is the application dealt with by the Deputy President in the Decision.
The decision on appeal
Having regard to the procedural history above, it is not necessary to provide a detailed summary of the Decision. The summary that follows is focused on the ten grounds of appeal listed in Mr Aboud’s Notice of Appeal and supporting submissions.
The Deputy President found at paragraph [8] that “It is not contested that the application was made out of time”. Putting to one side the question of whether that was contested or not (a matter we return to), the Deputy President relied upon the date of dismissal being 11 November 2022 and that 9 October 2023 was the date the unfair dismissal application was made.
As to whether an extension of time should have been granted, the Decision correctly records that s 394(3) of the Act sets out that ‘exceptional circumstances’ must be established before an extension is granted.
Section 394(3) required the Deputy President to take into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the Applicant and other persons in a similar position.
The Deputy President then considered the ‘extension of time’ question against the above factors.
The Deputy President gave detailed reasons concerning the reasons for delay. It is not practicable to summarise them in full but we note the following salient findings and conclusions, each being predicated on the unfair dismissal application being made for the first time on 9 October 2023:
· The “fundamental” reason for delay was Mr Aboud’s “lack of knowledge that he would need to pursue the general protections application in the Federal Court if it remained unresolved at the Commission stage and the Respondent declined to arbitrate it in the Commission.” The Deputy President found that Mr Aboud “had expressed that it was, at all times, his preference for the matter to remain in the Commission.”[6]
· The Deputy President found that Mr Aboud “had never been told that a general protections application could end up in the Federal Court or that it could only continue in the Commission if both the Respondent and the Applicant agreed to have it arbitrated”. [7] In this respect, the Deputy President also concluded that there was no “representative error”.[8]
· The Deputy President found that had the “Respondent agreed to the arbitration [in the Commission for the general protections claim], I consider it more likely than not that the Applicant would not have proceeded to make the application that is now on foot.[9] It was “not” the case that Mr Aboud “considered the general protections application so fundamentally flawed that it was without merit or that his legal representatives held the same view.” [10]
· It was Mr Aboud’s “preference to have the general protections application remain within the confines of the Commission, and when that was not possible, he veered toward making the unfair dismissal claim.” [11]
· The delay in filing the unfair dismissal application was “not a result of the wrong jurisdiction or an incorrect application having been made, but that the Applicant simply held a view regarding the jurisdiction of the Commission, which he preferred over the Federal Court.” [12]
· The Deputy President did not accept that the reason for delay was due to Mr Aboud’s health or incapacity. [13]
· The Deputy President did not accept that the reason for delay was due to the respondent’s fault in failing to advise Mr Aboud that he had been dismissed. [14]
The Deputy President concluded that there was no plausible reason advanced to explain either part of the period of delay or the whole of the delay.[15] The reasons for delay were treated as a factor weighing against a finding of exceptional circumstances.
On the question of when Mr Aboud became aware that he had been dismissed, the Deputy President concluded that he was aware on 11 November 2022 (being the date he filed the first Form F8). The Deputy President also found that the date of 11 November 2022 “was some time after the Applicant was, in all probability, dismissed” with reference to Commissioner Schneider’s decision, which was treated as a factor in favour of finding exceptional circumstances.[16]
On the issue of what action was taken by Mr Aboud to dispute the dismissal, the Deputy President found that there was insufficient evidence to support the finding that Mr Aboud challenged his dismissal.[17] The Deputy President treated this factor neutrally between the parties.
On the issue of whether there was any prejudice to the employer, the Deputy President found that there would be no apparent prejudice to the employer if an extension of time was granted. The Deputy President treated this factor neutrally between the parties.
On the substantive merits of the application, the Deputy President stated that the parties had touched very little on the substantive merits of Mr Aboud’s unfair dismissal application and she treated that factor neutrally between the parties.[18]
As to the factor concerning fairness between Mr Aboud and other persons in a similar position, the Deputy President found this factor was a neutral consideration between the parties.[19]
The Deputy President then considered all the matters as a whole, noting that there was one factor weighing in favour of a finding of exceptional circumstances and one against. Upon consideration of the “totality” of the evidence, the Deputy President was not satisfied that the overall circumstances were exceptional. Accordingly, the Deputy President dismissed Mr Aboud’s application.[20]
Principles concerning permission to appeal
There is no right to appeal and, by s 604(1) of the Act, an appeal may only be made with the permission of the Commission.
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.[21] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
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. Support for that proposition is found in a decision of the Full Court of the Federal Court of Australia in Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]. Paragraph [82] of that decision in turn referred, with clear approval, to paragraphs [9]- [10] of an earlier Full Court decision in Waters v Commonwealth (Australian Taxation Office) [2015] FCAFC 46 (Waters).
In Waters, the Full Court stated at [10] (underlining added):
“10. Even though more may be exposed in the written submissions filed by the opposing parties in an application for leave to appeal - such that the “merits” of any proposed Ground of Appeal may be more exposed to scrutiny than in an application for an extension of time – concurrence is nevertheless expressed with the views of Reeves J in Food Channel Network. An application for leave to appeal should not be routinely transformed into the hearing of the appeal itself. Although much must necessarily depend upon the particular circumstances of each case in which leave to appeal may be sought, there may well be many cases in which any “substantial injustice” is best exposed by reference to one or other of more generally expressed Grounds of Appeal. An indiscriminate “scatter-gun” approach on the part of an Applicant seeking leave upon each of the proposed Grounds of Appeal may well only divert attention away from the one (or a limited number of grounds) which really expose the reason why a primary judge’s decision is truly open to “sufficient doubt” to warrant leave being granted.”
Where an appeal is on a question of fact, s 400(2) of the Act narrows the scope of appeal by providing that an appeal can only be made “under this Part” on the ground that the decision involved a “significant error of fact”. The reference to “this Part” in s 400(2) is to Part 3-2 of the Act, which includes an application for an unfair dismissal remedy. Section 400(2) is applicable to the matter before us.
By s 604(2), and without limiting when the Commission might grant permission, the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so. However, the public interest requirement in s 604(2) is conditioned by s 400(1), which provides that, despite s 604(2), the Commission must not grant permission to appeal from a decision made by the Commission under Part 3-2 of the Act unless the Commission considers that it is in the public interest to do so. Section 400(1) is applicable to the matter before us.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[22] The public interest is not satisfied simply by the identification of error,[23] or a preference for a different result.[24] 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...”[25]
Consideration of the grounds of appeal
Mr Aboud’s Notice of Appeal set out nineteen grounds of appeal, which were distilled (in part) by his written submissions to ten grounds of appeal. In the written submissions, which is what we will refer to, each ground is said to constitute a “significant error of fact”. Mr Aboud’s submissions in support of his application to appeal run to ten pages on these grounds, with further submissions concerning the public interest.
We do not propose to describe the ten grounds of appeal in full but we make the initial observation that a significant number suffer the vice of the indiscriminate “scatter gun” approach eschewed by the Full Court in Waters and do not, in our view, represent an arguable basis for a significant factual error as contended.
For example, ground 1 asserts error concerning the “predominant reason for delay” summarised at the first bullet point in paragraph [21] above. The actual error alleged appears to be that the Deputy President’s conclusion excluded “credible explanations” given for the delay by Mr Aboud. One of the “credible explanations” referred to was Mr Aboud’s statement (made not in a witness statement but in his amended Form F2) that “All I ever wanted [was] to make a claim in the Fair Work Commission for unfair dismissal because it seemed to me that I had been unfairly dismissed…”. Another statement relied on (this time forming part of Mr Aboud’s evidence) was that “I had believed that the application would always be decided in the Commission.” Contrary to the appellant’s contention, not only did the Deputy President consider those matters but she expressly accepted they were reasons in her factual finding at [6] and [35] of her decision (and summarised in paragraph [21] above.) No arguable error exists.
We will return to grounds 2 and 5, below.
Ground 3 asserts an error in failing to find “representative error”. This ground does not actually assert an error of “fact” (as distinct from taking issue with the Deputy President’s conclusion). More importantly, there is simply no evidence to support the serious finding that there was any representative error, let alone that an arguable error was made by the Deputy President. The high-water mark of the alleged representative error is statements to the effect that Mr Aboud was never “told” that his general protections claim could end up in the Federal Court, perhaps coupled with a suggestion that he should have been told such a matter.
Ground 4 is described in Mr Aboud’s outline as “assumptions/conjectures – contrary to evidence”. Ground 4 is a prolix mix of alleged errors of “fact” but in substance asserts no more than a complaint about the Deputy President’s characterisation of the reasons for delay. This is not an arguable error of fact, let alone a significant error. What ground 4 appears to assert is that the Deputy President “ignored” various facts. One such fact is that “no one told [Mr Aboud] that the [general protections] matter could end up in the Federal Court if it did not settle.” Having regard to the Deputy President’s express finding of a “lack of knowledge” on Mr Aboud’s behalf about the possible pathway leading to the Federal Court, ground 4 is not arguable. The issue of what Mr Aboud was not “told” or what he “believed” is raised again in ground 7. We state briefly that ground 7 also raises no arguable error, which asserts that it was “open” for the Deputy President to conclude that Mr Aboud “intended” to lodge a claim for unfair dismissal in November 2022.
Ground 6 is titled “misconstruction of the respondent’s statement”. The respondent made a statement in submissions before the Deputy President that “the [applicant’s] General Protections claim was highly problematic, and without making any admission, that an Unfair Dismissal was a more appropriate pathway to dispute the termination of employment.” The alleged error involves two propositions. It is said that, firstly, the Deputy President misconstrued the respondent’s statement and, secondly, this “led” the Deputy President to make a different conclusion about the state of mind of Mr Aboud exercising a “purely preferential decision” to proceed with a general protections claim. This is not an arguable significant error of fact. In any case, contrary to what Mr Aboud appears to be asserting, the Deputy President did not conclude Mr Aboud made a “purely preferential decision” at [44] of the Decision; the Deputy President was simply stating her views on what might or might not constitute acceptable reasons for delay based upon an earlier Commission decision where a preferential decision was made. There is no arguable error for this ground.
Ground 8 does no more than repeat grounds 3, 4 and 5 as to the alleged “significant errors of fact”. Ground 8 seeks to impugn the Deputy President’s overall assessment that there were insufficient plausible reasons to explain the delay in commencing the unfair dismissal application. There is no arguable error.
Further emphasising the “scatter gun” approach taken with the Notice of Appeal, grounds 9 and 10 take issue with the Deputy President’s assessment of the statutory factors in s 394(2)(c) – being action taken to dispute the dismissal – and s 394(2)(e) – being the “merits” of the application. These grounds really amount to no more than rearguing the case at first instance, and do not evince any arguable error. We briefly mention the appellant’s position on ground 9, which asserts that “the lodgement of his application” constituted action to challenge the dismissal.
We accept that Mr Aboud’s commencement of the general protections claim constituted “action” to challenge his dismissal and that action was not specifically referred to in the Deputy President’s reasons concerning s 394(2)(c). On one view, the taking of that action was a positive factor in Mr Aboud’s favour. To the extent this aspect may have been an error, it is not a matter we consider would justify the grant of permission to appeal. The progress of the general protections claim up until September 2023 was a matter that permeated the Deputy President’s extension of time considerations. There was otherwise no material at all put before us to demonstrate any other action being taken to challenge the dismissal.
Returning to grounds 2 and 5, the first of these grounds asserts error on the finding “that [the] applicant did not contest the assertion that the application was late”. According to Mr Aboud’s written submissions, “the Applicant has consistently disputed the suggestions that the application was made out of time.”
It follows that if Mr Aboud did make an unfair dismissal application within time (i.e. within 21 days of 11 November 2022), no extension of time is required.
This issue overlaps with ground 5, where it is stated that Mr Aboud “intended” to pursue an unfair dismissal application “but ended up using a wrong form (Form F8 for general protections)”.
We noted earlier that Mr Aboud’s written outline goes so far as to state “he ended up filling (sic) two forms (Form F2 and Form F8)”. This statement, which appears in ground 7, has simply no basis in fact. Paragraph [35] of Mr Aboud’s witness statement asserts that, on 11 November 2022,[26] following discussion with the Fair Work Commission, “I immediately filled both forms” (being a reference to the Forms F2 and F8).
Other than Mr Aboud’s assertion, there was no evidence at all before the Deputy President that Mr Aboud ever filed a Form F2 for unfair dismissal before 9 October 2023 and no further evidence sought to be adduced on appeal, despite the issue being raised multiple times at the Full Bench hearing on 12 March 2024.
The Commission’s records on what was filed is at paragraph [14] above, which does not include any Form F2.
The actual position is revealed by paragraph [40] of Mr Aboud’s witness statement, which was before the Deputy President, where he stated (emphasis added):
“On that day, 11/11/2023 (scil, 2022), I filled what details I could on both Form F2 and Form F8. [SEE 5 Email to FWC showing Aboud filed two applications.pdf]” [27]
The reference in Mr Aboud’s statement to the supporting email was actually to an email from the Commission registry at 14 November 2022 titled “C2022/7507 RE: Email 2 of 2 Application Forms”.[28] This email was responding to the 12 November 2022 email (explained at paragraph [14] above), which was titled “Email 2 of 2 Application Forms”. Mr Aboud’s witness statement before the Deputy President also attached a Form F8 immediately following[29] the email of 14 November 2022 – the Form F8 attached to Mr Aboud’s statement was actually the first Form F8 he filed, which was attached to Mr Aboud’s 11 November 2022 email, not to the 12 November 2022. The mixing up of what form was attached to what email is of no significance.
The forensic purpose of Mr Aboud’s evidence was to show that he lodged two different applications, hence reference to “2 of 2 Application Forms”. As already indicated, however, Mr Aboud did not lodge a Form F2 for unfair dismissal until 9 October 2023. There is no arguable error in any aspect of the Deputy President’s findings as to that element.
Somewhat differently, Mr Aboud asserts on appeal that he “intended” to pursue an unfair dismissal application. First, at paragraph [39] of his written submissions, he asserts it was “readily obvious” to the respondent that the “appropriate” form was a Form F2 for unfair dismissal. Next, at paragraph [40] of his submissions, he states (emphasis added):
“It was thus open to the Deputy President to reach the same conclusion [as the respondent] that the Form F8 was in essence an unfair dismissal application which should have been in a Form F2.”
First, the appellant’s contention misstates what the respondent in fact said in a significant way – the respondent simply stated, “without making any admission”, that an unfair dismissal application was a “more appropriate” pathway to dispute the dismissal. Second, Mr Aboud’s submission that he intended to commence an unfair dismissal application with a Form F2 in November 2022 is very different to saying that he in fact lodged a Form F2.
In Hambridge v Spotless Facilities Services Pty Ltd[2017] FWCFB 2811 (Hambridge), the Full Bench considered circumstances where the applicant filed a wrong form by mistake. Mr Hambridge intended to make an unfair dismissal application but instead he erroneously made his application using the form for a general protections application, which was the wrong form. There was a positive factual finding of error to this effect at first instance that was undisturbed on appeal.
The Full Bench in Hambridge observed:
“Mr Hambridge’s error in using the wrong form for his first application, in non-compliance with s.585, could have been dealt with in any one of three ways: by correction, amendment or waiver by the Commission under s.586, by dismissal of the application under s.587(1)(a), or by Mr Hambridge discontinuing the application under s.588.”[30]
By contrast, where there is no error on behalf of an applicant, it is well established that it is impermissible to amend an application from a general protections claim to an unfair dismissal claim and vice versa. It is not appropriate (nor permissible) to allow s.586 to ‘convert’ what was in truth an unfair dismissal application to an application of a “fundamentally different” character, namely a general protections application: Ioannou v Northern Belting Services Pty Ltd.[31]
The submission that it was “open” to the Deputy President to find that (one of) Mr Aboud’s Form F8 documents was intended to be an unfair dismissal application tells against there being any arguable error about the Deputy President’s conclusion. Even accepting it was “open” to find such an intention, it was also “open” to conclude there was no such intention. Despite the isolated statement by Mr Aboud as to his apparent “intention”, a significant amount of contrary material before the Deputy President supports the conclusion reached by the Deputy President. Examples of just some of the contrary material includes (emphasis added):
· Mr Aboud was aware that there were two different types of forms for dismissal, being Form F2 and Form F8, although he “did not know the difference between the two applications”.[32]
· Mr Aboud’s evidence that he was “advised [by the Fair Work Commission] to make an application using Form F2 or Form F8”.[33]
· Mr Aboud’s evidence that he had actually filed a Form F2 in circumstances where he plainly had not. [34]
· Mr Aboud’s evidence that if the Respondent had “told me, right at the beginning, that I had been dismissed, I would have filed the application for unfair dismissal (using a Form F2)…”. [35]
· Mr Aboud’s continuation of his general protections dispute throughout 2023, including seeking to have that dispute arbitrated before the Commission.
· Mr Aboud filing a discontinuance of his general protections claim on 9 October 2023 and filing an unfair dismissal application the same day.
· The statement in Mr Aboud’s Form F2 that “I did not know what form to use. I now understand that I should not have made a general protection application for my dismissal. … I now know that I should have made an application for unfair dismissal. I did not know this before.”
· Mr Aboud’s application before the Deputy President was reliant on there being “exceptional circumstances”, a matter that is only required to be established if there was no Form F2 lodged within 21 days after the date the dismissal took effect. The Form F2 relied upon was dated 9 October 2023.
· Mr Aboud’s written submissions before the Deputy President stating that the “The current matter [i.e. the unfair dismissal application] is, in effect, a continuation of the disputed dismissal of the Applicant by the Respondent.”[36]
· Mr Aboud’s written submissions before the Deputy President that “If [Mr Aboud] had known that he could have abandoned the F8 application earlier and applied for the more appropriate remedy for unfair dismissal, he would have done so. The option was not mentioned to him at any time.” [37]
In our view, far from it being “open” for the Deputy President to find contrary to the assertion that Mr Aboud in fact commenced, or intended to commence, an unfair dismissal application in November 2022 (albeit on the wrong form), we query if there might have been an error if she decided differently. We need not express a view on that because it suffices to note that the fact that the Deputy President made a finding that was open to her discloses no arguable error.
The Deputy President correctly observed that it is well accepted that mere ignorance of the law would not be a sufficient basis for the grant of additional time.[38]
Even if Mr Aboud intended to file an unfair dismissal application, this is not what he did. It might be accepted that Mr Aboud did not appreciate the difference between a general protections application and an unfair dismissal application. It might also be accepted that if Mr Aboud knew in November 2022 what he knows now he would have proceeded differently.
Mr Aboud’s ignorance about such matters is not exceptional nor, in our view, even particularly remarkable. That is certainly not a criticism of Mr Aboud, who is not legally trained, let alone familiar with the types of application that might be made to challenge a dismissal and the procedural routes available to each.
More generally, there are many cases run before the Commission where a dismissal claim encounters some particular challenge or difficulty, including failing for a jurisdictional issue. But this does not mean that, in the absence of filing within 21 days of dismissal or establishing exceptional circumstances, an applicant can commence a different claim on the basis that, had they have known earlier of the difficulties later encountered, a different approach would have been taken.
We are not satisfied that there is any sufficiently arguable error such that a grant of leave to appeal should be made.
Public interest
We have also considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 400 that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
· the appeal raises issues of importance and/or general application;
· the decision manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
We do not consider that any reasonably arguable case has been advanced that the decision of the Deputy President was attended by appealable error. In this case, as we are also not persuaded that it would be in the public interest to grant permission to appeal, we “must not” grant permission: s 400(1).
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
N Nyamirandu of Morgan and Freeman Lawyers for the Appellant
R Greig of Greigs Safety and Employment Lawyers Pty Ltd for the Respondent
Hearing details:
2024.
Melbourne (by video via Microsoft Teams):
March 12.
[1] [2023] FWC 3216.
[2] [2023] FWC 1862.
[3] Ibid at [14], [43] and [46].
[4] See also Appeal Book page 27 at [43]
[5] Decision at [3].
[6] Decision at [35].
[7] Decision at [41].
[8] Decision at [42].
[9] Decision at [42].
[10] Decision at [42].
[11] Decision at [42].
[12] Decision at [43].
[13] Decision at [45] – [49].
[14] Decision at [50].
[15] Decision at [52].
[16] Decision at [52].
[17] Decision at [55].
[18] Decision at [58].
[19] Decision at [60].
[20] Decision at [61].
[21] Wan v AIRC (2001) 116 FCR 481 at [30].
[22] O’Sullivan v Farrer (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].
[23] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[24] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 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 (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].
[25] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[26] Appeal Book page 52.
[27] Appeal Book page 52.
[28] Appeal Book page 75.
[29] Appeal Book pages 76 - 84
[30] Hambridge, [31].
[31] [2014] FWCFB 6660 at [22]; see also Hambridge at [32] – [33].
[32] Appeal Book page 52 at [34].
[33] Appeal Book page 52 at [33].
[34] Appeal Book page 52 at [35] and [40].
[35] Appeal Book page 54 at [70].
[36] Appeal Book 27 at [44].
[37] Appeal Book 28 at [51].
[38] Decision at [41].
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