Abu Murad v Command51 Services Pty Limited
[2024] FWCFB 307
•17 JULY 2024
| [2024] FWCFB 307 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Abu Murad
v
Command51 Services Pty Limited
(C2024/3323)
| DEPUTY PRESIDENT MILLHOUSE DEPUTY PRESIDENT O’KEEFFE | MELBOURNE, 17 JULY 2024 |
Appeal against decision [2024] FWC 1091 of Deputy President Dean at Canberra on 1 May 2024 in matter number U2024/3239 – permission to appeal refused.
Mr Abu Murad has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a decision[1] and order[2] of Deputy President Dean issued on 1 May 2024.
In the decision, the Deputy President declined to grant the appellant, Mr Murad, an extension of time to file his unfair dismissal application against the Respondent, Command51 Services Pty Limited (Command51 or Respondent) and ordered that his application be dismissed.
The matter was listed for permission to appeal only. For the reasons that follow, permission to appeal is refused.
Context
Section 394(2) of the Act requires an application for an unfair dismissal remedy to be filed within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). Section 394(3) provides:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 person and other persons in a similar position.”
Mr Murad’s application for an unfair dismissal remedy was lodged on 21 March 2024. The decision records that his dismissal took effect on 26 February 2024. To be within time, the application needed to have been lodged with the Commission by 18 March 2024. The application was therefore lodged 3 days outside the statutory timeframe of 21 days.
In his Form F2 application for an unfair dismissal remedy, Mr Murad answered “yes” to the question, “Is this form being lodged within the 21 days limit.” Command51 raised the jurisdictional objection that the application was out of time in its Form F3.
The decision under appeal
In the decision the Deputy President commenced by setting out the law to be applied to a consideration as to whether to extend the period with which an application for an unfair dismissal remedy and cited Nulty v Blue Star Group Pty Ltd[3] as the authority for the approach to be taken.
The Deputy President then proceeded to separately consider each of the matters in
s 394(3) of the Act that she was required to take into account.
Firstly, as to the reason for the delay, the Deputy President set out in summary form, the reasons that Mr Murad advanced to explain the delay. The reasons cited were:
“a)The effect of the termination on my mental health including generalised anxiety, depression, emotional outbursts, and panic attacks.
b)The effect of the termination on my physical health as a diabetic patient and after suffering in hospital for over 2 months due to a serious health condition.
c)The time spent on my mental and physical health in this period which meant I could not access legal resources and/or advice.
d)The sudden decline of my elder sister’s health after suffering a brain stroke resulting in her being admitted to the Intensive Care Unit in BIRDEM General Hospital in Bangladesh.
e)The emotional impact and time taken to contact my family and relatives overseas to check on my sister’s medical condition and enquire about travel arrangements during the relevant period.
f)The time spent, focus and emotional drain of trying to support my family during the Relevant Period.”
The Deputy President summarised that the reasons advanced by Mr Murad for the delay are health related, and further, that the allegations made against him by the Respondent have damaged him mentally. The Deputy President noted that it was not exceptional for a person to suffer some level of shock, distress and anxiety associated with a dismissal. The Deputy President further noted that there was no medical evidence produced demonstrating that the health issues alluded to by Mr Murad were such as to prevent him from being able to make the application in time. The only medical evidence provided related to Mr Murad’s surgery and hospitalisation during the period prior to his dismissal. The Deputy President found that the lack of an acceptable explanation for the delay weighed against a conclusion that there were exceptional circumstances.
In respect to s 394(3)(b) of the Act, the Deputy President noted that Mr Murad was aware of the dismissal on the date it took effect, and this did not weigh in favour of a finding that there were exceptional circumstances.
In respect to s 394(3)(c) of the Act, the Deputy President noted that, other than seeking advice from Legal Aid NSW on the day the application was lodged, no other action was taken. Therefore, that consideration did not weigh in favour of a finding of exceptional circumstances.
In respect to s 394(3)(d) of the Act, the Deputy President did not identify any prejudice to the Respondent but noted the absence of prejudice is not necessarily a factor pointing in favour of granting an extension of time. The Deputy President stated that even if the absence of prejudice favoured extension, she would afford it little weight.
In respect to s 394(3)(f) of the Act, neither party made any submission about this criterion and as such the Deputy President considered this to be a neutral consideration.
As to the consideration of the merits pursuant to s 394(3)(e), the Deputy President noted that the task is to consider the merits as part of the consideration as to whether to extend time, rather than embarking on a detailed consideration of the substantive case. The Deputy President summarised Mr Murad’s submission that there was no valid reason for the dismissal, that the dismissal was procedurally unfair and that he was dismissed two weeks after his return to work following surgery. The Deputy President noted the Respondent’s submission that Mr Murad was unable to perform his duties to the required standard and that there had been a discussion with Mr Murad about his performance. The Deputy President, while noting there were contested facts, stated that it was not possible to make a detailed assessment of the merits and found that, “…it does seem that there may be a question as to whether the dismissal was fair in the circumstances.” Consequently, the Deputy President found this factor to weigh slightly in Mr Murad’s favour.
The Deputy President concluded that having considered all the factors, individually or together, she was not satisfied that there were exceptional circumstances and dismissed the application.
Grounds of appeal
Mr Murad’s grounds of appeal in the Form F7 are grouped under five headings:
Mental health issue – Mr Murad submits that he was not mentally and physically healthy, that he was depressed and not sleeping.
Health issue – Mr Murad refers to his diabetes and high blood pressure and submits that he had been referred to a psychologist.
Hospital issue – Mr Murad refers to a recent operation he underwent and the restrictions imposed on his return to work, which was to involve no heavy lifting. Mr Murad contends that Command51 required him to do heavy lifting regardless.
Family issue – This matter involves Mr Murad’s sister having a stroke and being hospitalised in Bangladesh. Mr Murad submits that his concern about his sister drove him “crazy.”
Psychology – Mr Murad says that he sees a psychologist and is taking the psychologist’s advice.
In relation to the public interest, Mr Murad states in his Notice of Appeal as follows:
“I think all my judgements should be analyzed and I should be given a chance.”[4]
Principles – permission to appeal
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.[5] There is no right to appeal, and an appeal may only be made with the permission of the Commission.
This appeal is one to which s 400 of the Act applies. Section 400 provides:
“(1) 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.
(2) 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.”
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others,[6] Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[7] A Full Bench of the Commission in GlaxoSmithKline Australia Pty Ltd v Makin[8] 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...”
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.[9] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis to grant permission to appeal.[10]
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.[11] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
We do not consider that it is appropriate to grant permission to appeal.
The time limit that applies to the exercise of a person’s right to bring an application under s 394 of the Act reflects Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
The test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) establishes a “high hurdle” for an application for an extension.[12] A decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion.[13]
The appeal grounds upon which Mr Murad relies do not identify an arguable case of appealable error in the exercise of the Deputy President’s discretion.[14]
With respect to Mr Murad’s mental health concerns and health issues generally, the Deputy President considered Mr Murad’s submissions and evidence about these matters. However, the Deputy President noted that there was no medical evidence that covered the relevant time period, that is the time after dismissal and before the lodgement of the application, and found there was not an acceptable reason advanced for the delay. No arguable appealable error arises in relation to the Deputy President’s consideration of these matters.
In relation to the hospital issue, this ground touches on the Deputy President’s consideration of the merits of Mr Murad’s unfair dismissal application, as Mr Murad asserts that he was required to work in a manner inconsistent with his medical clearance. However, the Deputy President questioned the fairness of the dismissal and found this to be a factor weighing slightly in Mr Murad’s favour in the consideration of whether to grant an extension of time. The Deputy President’s approach to this issue, and her finding in Mr Murad’s favour, discloses no arguable error on appeal.
The appeal ground concerning Mr Murad’s sister suffering a stroke is connected with Mr Murad’s submission that he was feeling “crazy.” However, as set out earlier, the Deputy President considered Mr Murad’s submissions concerning his mental health and the lack of evidence demonstrating any incapacity to lodge the application within the statutory timeframe. This appeal ground discloses no arguable error on appeal.
The appeal ground associated with Mr Murad’s attendance at a psychologist does not draw any connection to the decision or order under appeal. It does give rise to any arguable contention of error.
Overall, the appeal grounds are largely directed at re-agitating the same issues that were raised before the Deputy President. Mr Murad simply seeks a different result.
Conclusion
We are not persuaded that any of the matters raised by Mr Murad justify the grant of permission to appeal or enliven the public interest. Mr Murad’s application for an extension of time was determined on the basis of its own facts. In this respect, we are not satisfied that the appeal raises any issue of importance or general application, nor does it identify any relevant diversity of decisions at first instance. We do not consider it to be arguable that the decision of the Deputy President manifests an injustice, or that the result is counterintuitive or unjust. For the reasons we have given, the legal principles are not disharmonious with other authorities concerning s 394(3) of the Act.
As we are not satisfied that the grant of permission to appeal would be in the public interest, permission to appeal must be refused in accordance with s 400(1) of the Act.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
A Murad on his own behalf.
D Martyr for Command51 Services Pty Limited.
C Simpson for Command51 Services Pty Limited.
Hearing details:
2024.
Melbourne (by video link):
July 10.
[1] [2024] FWC 1091.
[2] PR774257.
[3] [2011] FWAFB 975; 203 IR 1.
[4] Question 3.1 of the Form F7.
[5] This is so because on appeal, the Commission has the power to receive further evidence pursuant to s 607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[6] (2011) 192 FCR 78 at [43].
[7] O’Sullivan v Farrer [1989] HCA 61; 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506; 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [44]-[46].
[8] GlaxoSmithKline Australia Pty Ltd v Colin Makin[2010] FWAFB 5343 at [27].
[9] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[10] 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].
[11] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[12] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
[13] Ibid.
[14] See, House v The King [1936] HCA 40, 55 CLR 499.
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