Adrian Biddle v Miele Australia Pty. Limited
[2023] FWCFB 187
•16 OCTOBER 2023
| [2023] FWCFB 187 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Adrian Biddle
v
Miele Australia Pty. Limited
(C2023/5225)
| DEPUTY PRESIDENT MILLHOUSE DEPUTY PRESIDENT DOBSON COMMISSIONER HUNT | MELBOURNE, 16 OCTOBER 2023 |
Appeal against decision [2023] FWC 1972 of Commissioner Mirabella at Melbourne on 15 August 2023 in matter number U2023/6230 – permission to appeal refused.
Mr Adrian Biddle 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 Commissioner Mirabella issued on 15 August 2023. In the decision, the Commissioner declined to grant Mr Biddle an extension of time to file his application for an unfair dismissal remedy against the respondent, Miele Australia Pty. Limited. The Commissioner ordered that Mr Biddle’s application be dismissed.
This matter was listed for permission to appeal only. The parties consented to the application being determined without holding a hearing pursuant to s 607(1)(b) of the Act. We are satisfied, having regard to s 607(1)(a), that the question of permission to appeal can be adequately determined without the need for oral submissions. Accordingly, the parties were advised that the Full Bench would determine the appeal on the basis of Mr Biddle’s notice of appeal and the written submissions filed in accordance with the directions.
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.”
It was not in dispute at first instance that Mr Biddle’s dismissal took effect on 24 April 2023[3] and Mr Biddle’s application was made on 10 July 2023.[4] The 21-day statutory timeframe therefore concluded at midnight on 15 May 2023. Accordingly, Mr Biddle’s application was filed 56 days out of time.[5]
In his Form F2 application for an unfair dismissal remedy, Mr Biddle acknowledged that the application was filed outside the statutory timeframe. Mr Biddle explained in his application that he had initially filed a general protections application on 9 May 2023 with the assistance of his (then) representative, A Whole New Approach Pty Ltd.
Decision under appeal
In the decision, the Commissioner separately addressed each of the matters in s 394(3) of the Act that she was required to take into account.
With respect to the reason for the delay, the Commissioner noted that Mr Biddle had elected to file a general protections application with the assistance of his former representative. The Commissioner referred to Mr Biddle’s contention that he received “poor legal advice” which caused a substandard general protections application to be lodged on his behalf. The decision also records Mr Biddle’s submission that his representative had made critical errors in his general protections application and did not adequately address his concerns regarding alleged disability discrimination. Ultimately, Mr Biddle did not proceed with that application.
In addition, the Commissioner noted that on account of an illness that Mr Biddle was suffering, Mr Biddle did not believe that he would be able to explain to his representative the nature of the respondent’s alleged discriminatory conduct. The Commissioner regarded this as an additional matter upon which Mr Biddle relied to explain the delay.
The Commissioner concluded that Mr Biddle did not instruct his representative to file an unfair dismissal application; did not agree with the legal advice given to him within the 21-day statutory timeframe about the issues with his general protections application; decided that he could not explain to his representative how his general protections application could succeed; thereafter decided to file an unfair dismissal application; and contributed to the delay. The Commissioner was not satisfied for the purposes of s 394(3)(a) that the explanation provided by Mr Biddle was acceptable or reasonable and concluded that this weighed against a finding that there were exceptional circumstances.[6]
As to the considerations in s 394(b)-(d), the Commissioner found that paragraph (b) weighed against the grant of an extension,[7] paragraph (c) weighed in favour of an extension of time,[8] and paragraph (d) was a neutral consideration.
As to the merits of Mr Biddle’s substantive application, the Commissioner noted there were contested facts and competing contentions that would necessitate a further and detailed assessment. Accordingly, on the basis of the material before the Commission, paragraph (e) was a neutral consideration,[9] and there were no relevant matters of fairness to take into account in relation to paragraph (f).[10]
The Commissioner determined that she was not satisfied there were exceptional circumstances giving rise to an extension of time, either when the various circumstances were considered individually or together. Accordingly, there was no basis for granting an extension of time, and Mr Biddle’s application was dismissed.[11]
Principles – permission to appeal
There is no right to appeal, and an appeal may only be made with the permission of the Commission.
By s 400(1), despite s 604(2), the Commission must not grant permission to appeal from a decision made by the Commission “under this Part” unless the Commission considers that it is in the public interest to do so. The reference to “this Part” in s 400(1) is to Part 3-2 of the Act. This appeal is one to which s 400 of the Act applies. The test under s 400 is “a stringent one.”[12]
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[13] The public interest is not satisfied simply by the identification of error,[14] or a preference for a different result.[15] 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...”[16]
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.[17] 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.[18]
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.[19] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[20]
Where a finding or conclusion involves the exercise of a discretion where some latitude is afforded, an appellate body will also generally not interfere with the conclusions of the decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[21]
“"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”
(citations omitted)
For there to be legal error, it would need to be shown that the Commissioner acted on a wrong principle, took into account irrelevant matters, mistook facts,[22] or is manifestly wrong.[23] It is not enough that a different member or an appellant body might have reached a different conclusion.
Notice of appeal
In his Notice of Appeal, Mr Biddle provided information about his cognitive and psychological impairments to provide context to his appeal. In summary, Mr Biddle stated as follows:
Following a minor vehicle accident on 3 November 2021, Mr Biddle has some undiagnosed but self-reported mild impairments of a cognitive and psychological nature.[24]
While Mr Biddle can interact with others and make decisions about straight-forward topics, these impairments can affect Mr Biddle’s ability, to a large degree at times, to interact with others, interpret and respond to certain instructions and to make decisions about complex or vague issues.[25]
Mr Biddle has made multiple attempts to obtain a formal diagnosis but that this has been hampered by the “hidden” and “complex” nature of his “self-reported” symptoms.[26]
Mr Biddle has filed some medical evidence from the Transport Accident Commission and a GP referral form in lieu of a formal medical diagnosis.[27]
Mr Biddle believes that his impairments meet the definition of a disability[28] and the broad definition of that term adopted by the High Court.[29]
It was open to the Commission or the respondent to challenge his assertions as to his impairments.[30]
The references to Mr Biddle’s disability do not indicate an unfitness to perform actions other than to convey limitations about the quality of success of the performance of those actions.[31]
During the first instance proceedings, the anxiety associated with his disability affected Mr Biddle’s performance, as did his unreliable network connection.[32]
Grounds of appeal
Mr Biddle said that he has advanced four grounds of appeal. However, it is apparent from a review of the Form F7 Notice of Appeal that Mr Biddle also relies upon the existence of two errors of fact in the decision, which he says are significant. Accordingly, we proceed on the basis that Mr Biddle advances six grounds of appeal, which are summarised below:
The Commissioner erred in not addressing the objections that Mr Biddle filed about the quality of the respondent’s submission, and about representational activity undertaken on behalf of the respondent.[33]
The Commissioner erred in finding that there were no exceptional circumstances, either when the various circumstances are considered individually or together.[34]
The Commissioner’s findings as to the reasons for the delay were not open to established or discernible foundations of fact based on the submissions and evidence provided.[35]
The Commissioner failed to correctly ascertain that the respondent’s submission in relation to the merits of the application did not comply with the directions, or a requisite evidentiary onus of proof, and as such the Commissioner erred in finding that the merits were a neutral consideration.[36]
The Commissioner erred in stating that Mr Biddle relied upon an illness from which he was suffering as a reason for the delay.[37]
The Commissioner erred in stating that Mr Biddle had contended representative incompetence and poor legal advice caused a substandard general protections application lodged on his behalf.[38]
Submissions
Mr Biddle filed extensive submissions in relation to his grounds of appeal, which are summarised below.
In support of appeal ground (1), Mr Biddle submits that the respondent’s written submissions at first instance were authored by MST Lawyers.[39] Mr Biddle says he objected to these submissions, including because he was concerned that a representative prepared the submissions and was acting on the respondent’s behalf; and the submissions did not provide any meaningful information regarding the dismissal, or other information in the Commission’s approved guide documents.[40]
Mr Biddle contends that the respondent’s response, which confirmed that MST Lawyers had prepared its written submissions but did not hold instructions to appear in the matter, referred to a superseded version of the Fair Work Commission Rules 2013 (Rules). Further, the Commissioner did not call for written or oral submissions in relation to Mr Biddle’s objections during the proceedings.
Mr Biddle contends that in circumstances where the respondent’s submissions omit crucial facts in relation to his dismissal, they were not compliant with the Commission’s directions or the approved guide documents.
Mr Biddle says that the decision makes no mention of these matters, the operation of rule 12(1)(b) of the Rules, and nor was it raised during the first instance proceedings. Mr Biddle says that he did not raise his objections at first instance because of his heightened anxiety. Mr Biddle contends that by failing to address his objections, the Commissioner erred in the exercise of her discretion in the manner described in House v The King.[41] Further, Mr Biddle contends that he was denied procedural fairness.
In relation to appeal ground (2), Mr Biddle contends that the Commissioner erred by finding that there were no exceptional circumstances. Mr Biddle submits that the term “exceptional circumstances” is mentioned on only six occasions in the decision, and the Commissioner did not specifically describe any of the circumstances or situations as exceptional or unexceptional or provide reasons for why this is so. Mr Biddle contends that this issue is especially pertinent in matters such as his which involve the filing of an earlier application within the statutory timeframe. Mr Biddle says that there were influencing elements affecting the progress of his general protections application in an “unexpected, unusual and uncommon manner” and this caused Mr Biddle to “abandon that case two weeks after the conciliation meeting,” after which he decided to file his unfair dismissal application.
The “influencing elements” Mr Biddle relies upon are summarised as follows:
(a) the nature of Mr Biddle’s dismissal was not substantiated by the respondent;
(b) Mr Biddle has had difficulties securing new employment, compounded by his ongoing efforts to obtain a diagnosis and treatment options;
(c) Mr Biddle explained to his former representative the potential impact his cognitive and emotional impairments may have on emails and conversations;
(d) the legal advice provided to Mr Biddle by the “first barrister” in relation to his general protections claim was based on a misunderstanding of his application;
(e) Mr Biddle was reassured by his former legal representative that there was merit to his general protections application and as such, Mr Biddle did not withdraw it;
(f) Mr Biddle subsequently advised his former legal representative that there were errors in his general protections application and was advised that these matters would be addressed before the conciliation conference but it appears this did not occur;
(g) Mr Biddle’s former legal representative focused on incorrect matters during the conciliation conference;
(h) the Commission issued a s 368 certificate and declared his intention to progress his general protections application to the Court;
(i) Mr Biddle was thereafter unable to persuade his former legal representative about the views Mr Biddle held about the s 351 aspects of his general protections application; and
(j) Mr Biddle was not able to have any meaningful discussion with the “second barrister” that considered the strength of his general protections application.
Mr Biddle further contends that the influence his disability had when attempting to “give clear answers to the Commission” should be further considered, together with the role of the Commission to, inter alia, make allowances for how certain matters could be exceptional to a person with Mr Biddle’s impairments. Mr Biddle says that by failing to adequately consider all of the available information in the assessment of exceptional circumstances, the Commissioner erred.
As to appeal ground (3), Mr Biddle submits that the concept of “representative error” formed the foundation of the Commissioner’s findings. However, Mr Biddle says that he did not refer to the issue of representative error in his submissions or evidence, and nor did he rely on this as a reason for the delay. Rather, Mr Biddle said that he referred to the “critical errors” his former legal representative made in his general protections application because:
“I was trying to present that the errors led to various ‘exceptional’ misunderstandings and incorrect judgements about the details and merits of my general protections application, which then eventually resulted in advice that my case was too weak. From my perspective, this was a primary example of exceptional circumstances.”
Mr Biddle says that this is not consistent with a perception that he advocated that there had been a representative error, and the respondent also appears to have fallen under the same misapprehension.
Mr Biddle contends that the erroneous concept of representative error also underpins the Commissioner’s findings that (a) he did not agree with legal advice provided to him about the strength of his general protections application; and (b) he could not explain to his former legal representative how his general protections application could succeed. Mr Biddle submits that this demonstrates that the issue of representative error was the Commissioner’s principal focus when assessing whether he had provided an acceptable or reasonable explanation for the delay.
As to appeal ground (4), Mr Biddle contends that the Commissioner failed to correctly ascertain that the respondent’s submissions in relation to the merits of the application did not comply with the Directions, or a requisite evidentiary onus of proof, and therefore erred in concluding that the merits were a neutral consideration. Mr Biddle submits that the Commissioner should have determined that the respondent’s submissions in relation to the merits of the application did not comply with the requisite standard and that it would not be proper or fair to allow the respondent’s submission to be accepted unreservedly. In circumstances where the neutral finding was “plainly erroneous,” the Commissioner erred by failing to take into account a relevant consideration, being the merits of the application.
In support of appeal ground (5), Mr Biddle submits that the Commissioner erred in stating that Mr Biddle relied upon an “illness” he was suffering as a reason for the delay. Mr Biddle said that his evidence was that he did not feel that he could articulate the merits of his general protections application to his legal representative and did not feel capable of representing himself in that case due to the manifestation of his disability. Mr Biddle said that in the provision of information to the Commission about his disability, he did not make any references to the term “illness,” and the term is not a suitable substitution for his disability. Mr Biddle contends that this is a significant error of fact because the use of the term “illness” suggests a mistaken understanding of Mr Biddle’s disability and thereby did not approach Mr Biddle’s submissions and evidence “differently from that of a person with full cognitive capabilities.”
In relation to appeal ground (6), Mr Biddle contends that the Commissioner erred in stating that he contended that representative incompetence and poor legal advice caused a substandard general protections application to be lodged on his behalf. Mr Biddle says that he did not make these submissions because (a) his representative was not a law firm and did not provide legal advice; and (b) Mr Biddle did not state that his representative had given him poor advice about his general protections application. Mr Biddle further submits that he did not describe the errors that his representative made as “incompetence,” but rather he was disappointed the errors were made and were not resolved. Mr Biddle contends that this is a significant error of fact because it conveys an intent on Mr Biddle’s part to describe the circumstances in such as way so as to fit within the “usual meaning of representative error.”
Public interest
Mr Biddle contends that it is in the public interest for the Commission to grant permission to appeal for six reasons. In summary, those reasons are as follows:
(1) The decision manifests a significant injustice, and the result is counter-intuitive to the material before the Commission. If leave is refused such errors could be condoned in the future.[42]
(2) A significant injustice is manifested by the unfair and improper misrepresentation of Mr Biddle’s submissions and evidence.[43]
(3) It is essential for the Commission to correctly address and rule on the issue of representational activity when an objection or application under rule 12(3) has been raised.[44]
(4) The Commission should recognise all relevant and significant aspects that could contribute to exceptional circumstances, particularly in relation to hidden impairments that have a more significant impact than is generally understood by others.[45]
(5) The Commission should correctly ascertain when a submission in relation to the merits of the application does not comply with the directions for the proceeding or with the requisite evidentiary onus of proof particularly where the allegations involve serious misconduct.[46]
(6) It is in the public interest that respect be shown about complex health conditions, especially those in respect of mental health or mental impairments, in order to ensure procedural fairness for affected parties.[47]
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.[48] A decision as to whether to extend time under s 394(3) involves the exercise of a broad discretion.[49] Therefore it will be necessary, in an application for permission to appeal such as this, to demonstrate that there is an arguable case that there was appealable error in the exercise of the discretion. This will require the identification of error of the type described in House v The King[50] – that is, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust.
The six appeal grounds upon which Mr Biddle relies do not disclose an arguable case of appealable error in the exercise of the Commissioner’s discretion. The basis for reaching this conclusion is explained briefly as follows.
As to ground (1), no arguable appealable error arises from the contention that the decision did not address Mr Biddle’s concerns with the respondent’s submissions or the operation of rule 12(1)(b) of the Rules. The Commissioner was not required to, and did not, make any decisions in respect of these issues. Nor did Mr Biddle press these matters at the determinative conference. It is therefore unremarkable that the decision did not refer to them. In this respect we note the following.
First, the form in which the respondent advanced its submissions was a matter for the respondent. The Directions did not require the respondent to file any material on the extension of time issue, nor compel submissions in a particular form. Second, it was not necessary for the respondent’s submissions, in the context of opposing Mr Biddle’s application for an extension of time, to establish “why the dismissal was fair.” More is said about the submissions before the Commissioner in relation to the merits of Mr Biddle’s substantive application in relation to appeal ground (4). Third, the respondent did not require permission to engage a legal representative to assist it in the preparation of its written submissions. As Mr Biddle concedes, nor did he seek a direction from the Commissioner under rule 12(3) of the Rules. Fourth, the respondent did not seek to be represented by a lawyer or paid agent at the determinative conference before the Commissioner. Accordingly, the Commissioner was not required to, and did not, determine an application pursuant to s 596(2) of the Act. Fifth, any erroneous reference to a superseded version of the Rules in the respondent’s email to Mr Biddle and the Commissioner’s chambers does not bear upon the Commissioner’s reasoning in the decision under appeal. Sixth, to the extent that Mr Biddle contends he was denied procedural fairness by the Commissioner’s failure to address Mr Biddle’s objections, there is no arguable basis to conclude that the matters raised by ground (1) could have any meaningful consequence for the outcome of the proceedings or Mr Biddle’s capacity to present his case.
In relation to ground (2), the Commissioner declined to exercise her discretion to grant Mr Biddle further time because she was not satisfied that there were exceptional circumstances warranting an extension. Mr Biddle relies upon a series of “influencing elements” to support his contention that the Commissioner’s finding was erroneous. However, these elements were advanced by Mr Biddle in the proceedings at first instance.[51] The contention that the Commissioner failed to adequately consider these matters does not appear to be reasonably arguable, having regard to [13]-[19] of the decision. Mr Biddle’s submission that the issues “should have been identified and assessed in the context of being exceptional” demonstrate Mr Biddle’s dissatisfaction and disagreement with the Commissioner’s findings, but this is insufficient to disclose an arguable case of appealable error.
Appeal grounds (3) and (6) each concern Mr Biddle’s contention that the Commissioner erred in considering the concept of representative error, and attributed statements to Mr Biddle as to his representative’s “incompetence” and “poor legal advice” that he did not advance.
It is necessary to give some consideration to the evidence before the Commissioner concerning the reason for the delay. In summary, under the heading “reasons for the delay,” Mr Biddle argued that his former representative had initially lodged a general protections application with the Commission on his behalf. Mr Biddle said this application contained “crucial oversights,” “did not address important alleged contraventions that were critical,” “the AWNA representative did not display an understanding of or advocate the strengths of my case” and “it became clear to me that we wouldn’t be able to find common ground. I advised AWNA of my decision to cease my relationship with them.”[52]
Further, in response to a question inviting an explanation about why the application was made more than 21 days after the dismissal took effect, Mr Biddle submitted, “AWNA made some critical errors,” “these errors significantly diluted the merits of my case which then contributing to stopping any further action after receiving a Section 368 certificate,” AWNA “never communicated to me” the view that the case was not arguable, “the alleged contraventions in the general applications document didn’t accurately reflect my situation,” and “during the conciliation meeting [the representative]…didn’t focus on the pivotal s.351 contraventions that I had provided feedback on.”[53]
Mr Biddle then stated, “AWNA made an important error in judgement in relation to my instructions to apply to hear the matter in the Federal Court and Family Court of Australia. I submit that this error was primarily responsible for stopping any further action with the original matter, and as a result I felt that the only available option was to lodge a late new unfair dismissal application with the Commission.”[54]
Many of these contentions are repeated in Mr Biddle’s statement of evidence.[55]
Further, during the first instance proceedings before the Commissioner, Mr Biddle said as follows:[56]
“As I've indicated in the documentation, I contacted a – you know, I contacted a workplace firm in order to be able to proceed. Through a matter of what I would consider to be errors and misinterpretations, that eventuated with being advised by a barrister that I did not have a case, in their opinion. From my point of view, with the discussions that I had had with various people, none of the conversations indicated to me that they represented an arguable view of the evidence as it should have been presented. As a result of that, what I concluded was that the best approach for me was, on 10 July, to submit a late application to the Fair Work Commission for unfair dismissal remedy…”
(emphasis added)
When asked by the Commissioner what he considered the “error, the critical error” to be, Mr Biddle said, inter alia:[57]
“…what AWNA put – and I hadn't realised this at the time, but they put down the substantial reason for dismissal was the exercising of workplace rights under section 340. They included a small, minor paragraph, almost as an afterthought, that mentioned about discrimination and that if there had been an able-bodied person they would have been treated in a different way, but the reason given for the substantial reason was section 340, and that changed the nature of the whole course of the case, because I advised AWNA at the time, and I haven't heard anything from any discussions that have disagreed, that I wasn't – the termination of my employment had nothing to do with the exercising of 340.”
The Commissioner clarified this matter with Mr Biddle in the following way:[58]
Commissioner: “Okay, but you're saying the error was that although the 351 was included in the application, it wasn't focused on adequately?”
Mr Biddle: “That’s correct.”
Having regard to the evidence before the Commissioner, we do not consider it to be arguable that Mr Biddle did not rely upon the concept of representative error to explain the delay in filing his unfair dismissal application. This issue was the focus of Mr Biddle’s written and oral evidence. During the first instance proceedings, Mr Biddle expressly raised the proposition that his representative made errors, submitted that these were critical, and alleged that the error was “primarily responsible” for preventing Mr Biddle from proceeding with his general protections application in the Court, leaving Mr Biddle with the “only available option” of filing an unfair dismissal application out of time. No arguable contention of appealable error arises in relation to ground (3).
Mr Biddle’s complaints concerning ground (6) relate to the Commissioner’s summary of his submissions and evidence. The references in the decision to “representative incompetence,” “poor legal advice” and a “substandard general protections application” do not represent the Commissioner’s evidentiary considerations or factual findings. Mr Biddle has not adequately connected the Commissioner’s summary of his evidence to his contention that the findings at [32]-[33] otherwise would not have been justified. On the contrary, as the matters at [46] to [52] of this decision demonstrate, the Commissioner’s summary of Mr Biddle’s position appears to have been available on the material before her. In these circumstances we do not consider it to be arguable that the Commissioner’s summary of Mr Biddle’s submissions and evidence discloses a significant error of fact, as contended. Accordingly, no arguable case of appealable error arises in relation to ground (6).
As to appeal ground (4), we refer to [43] above insofar as it addresses the respondent’s written submissions at first instance. As stated, we do not consider it to be arguable that the respondent’s submissions were not compliant with the Directions, in either their form or substance. Further, the respondent’s submissions accurately contend that the Commission should not embark upon a detailed consideration of the substantive case in determining whether to exercise the discretion to extend time.[59] The matters to which the respondent refers in its submissions appear to provide support for the Commissioner’s conclusion that the merits of Mr Biddle’s unfair dismissal application turned on contested points of fact such that it was not possible for the Commissioner to make a firm assessment of the merits in the absence of a hearing dealing with those issues. It follows that Mr Biddle’s contention that it was “plainly erroneous” to find that the merits of the substantive case weighed neutrally does not disclose an arguable case of appealable error.
The contention raised by ground (5) is that the Commissioner made a significant error of fact by her use of the term “illness” in lieu of the term “disability” at [28] of the decision. We observe at the outset that there is no medical evidence before the Commission in relation to Mr Biddle’s disability. Rather, as noted at [22] above, Mr Biddle regards himself to have “some undiagnosed but self-reported mild impairments of a cognitive and psychological nature.” In the absence of medical evidence before the Commission establishing the nature of Mr Biddle’s condition, the contention that the Commissioner made a significant error of fact appears to be unsustainable.
Regardless, it is apparent from the decision that the Commissioner appreciated Mr Biddle’s contention that he had an “impairment,”[60] this being consistent with Mr Biddle’s submissions before the Commissioner at first instance.[61] In these circumstances, the contention that the Commissioner had a mistaken understanding of Mr Biddle’s condition and thereby did not approach his submissions and evidence with this in mind does not appear to us to be reasonably arguable. We are not satisfied that ground (5) discloses an arguable contention of appealable error.
Relatedly, to the extent that Mr Biddle contends by ground (2) that the Commissioner ought to have made allowances for his impairment, Mr Biddle has not taken us to any matters in the decision which demonstrate that the Commissioner failed to have regard to a material consideration on the evidence before her. Accordingly, we do not regard this aspect of ground (2) to disclose any arguable appealable error.
Finally, we observe that while the decision accurately identifies that Mr Biddle’s unfair dismissal application was 56 days out of time,[62] the decision states that to have been within time, the application was to be filed before midnight on 16 May 2023.[63] Rather, to have been filed within the 21-day statutory timeframe, the application was due to be filed by midnight on 15 May 2023. This is a matter that the Commissioner clearly appreciated having regard to [17] of the decision and the matters raised during the first instance proceedings, wherein 16 May 2023 was identified as the first day of the delay.[64] The discrepancy arising from the reference to 16 May in lieu of 15 May 2023 in the decision is not a significant error of fact, as required by s 400(2) of the Act. Nor do we consider it to be reasonably arguable that this matter had a material bearing upon the Commissioner’s consideration of the criteria in s 394(3) or the outcome of the decision.
Conclusion
The overriding public interest requirement in s 400(1) of the Act provides that the Commission must not grant permission to appeal the decision unless it is in the public interest to do so. We do not consider that the public interest is enlivened in the absence of any arguable contention of appealable error. The application for an extension of time was determined on the basis of its own particular facts and, contrary to the contentions which broadly arise from Mr Biddle’s public interest grounds in the Notice of Appeal, we are not persuaded that the decision raises any issues of wider application.
Order and disposition
We are not satisfied that it would be in the public interest to grant permission to appeal. Accordingly, as required by s 400(1) of the Act, permission to appeal is refused.
DEPUTY PRESIDENT
Hearing details:
Matter determined on the papers
Final written submissions:
Applicant, 3 October 2023
[1] Mr Adrian Biddle v Miele Australia Pty Limited[2023] FWC 1972
[2] PR765229
[3] Mr Adrian Biddle v Miele Australia Pty Limited[2023] FWC 1972 at [7]
[4] Ibid at [2]
[5] Ibid at [25]
[6] Ibid at [30]-[35]
[7] Ibid at [36]
[8] Ibid at [41]
[9] Ibid at [47]
[10] Ibid at [51]
[11] Ibid at [52]
[12] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; 192 FCR 78; 207 IR 177 at [34] and [43]
[13] 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]
[14] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]
[15] 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]
[16] [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[17] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[18] 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]
[19] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[20] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27]-[29]
[21] [2000] HCA 47; 203 CLR 194 at [19]
[22] And, in the case of an appeal for an unfair dismissal matter, the error of fact would need to be a “significant error of fact:” see s 400(2) of the Act
[23] House v The King (1936) 55 CLR 499 at 505
[24] Form F7, 2.1 at [1]
[25] Ibid at [2]
[26] Ibid at [3]
[27] Ibid at [4]
[28] Disability Discrimination Act 1992 (Cth)
[29] Form F7, 2.1 at [5]; Slattery v Manningham CC (Human Rights) [2013] VCAT 1869, [27], which referred to Purvis v New South Wales [2003] HCA 62; 217 CLR 92; 202 ALR 133; 78 ALJR 1
[30] Form F7, 2.1 at [6]
[31] Ibid at [7]
[32] Ibid at [8]
[33] Ibid at [9](a)
[34] Ibid at [9](b)
[35] Ibid at [9](c)
[36] Ibid at [9](d)
[37] Ibid at [77](a)
[38] Ibid at [77](b)
[39] Appeal Book 93
[40] Appeal Book 86-87
[41] House v The King (1936) 55 CLR 499 at 505
[42] Form 7, 3.1 at [1]
[43] Ibid at [2]
[44] Ibid at [3]
[45] Ibid at [4]
[46] Ibid at [5]
[47] Ibid at [6]
[48] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[49] Ibid
[50] (1936) 55 CLR 499 at 505
[51] Appeal Book 37-39, 43-47, 69-73
[52] Appeal Book 37 at [4]-[5]
[53] Appeal Book 43-44 at [3]
[54] Appeal Book 44 at [4]
[55] See Appeal Book 72
[56] Appeal Book 15 at [42]
[57] Appeal Book 22 at [83]
[58] Appeal Book 23 at [89]
[59] Appeal Book 102
[60] Mr Adrian Biddle v Miele Australia Pty Limited[2023] FWC 1972 at [17]
[61] Appeal Book 36, 39, 45, 46, 53-62, 69-71
[62] Mr Adrian Biddle v Miele Australia Pty Limited[2023] FWC 1972 at [17]
[63] Ibid at [9]
[64] Appeal Book 23 at [90]-[92]
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