Adrian Biddle v Miele Australia Pty. Limited - [2023] FWCFB 187

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWCFB 187
Decision Date: 16 OCTOBER 2023

CaseChat Overview and Summary

Adrian Biddle, an employee, appealed a decision by Commissioner Mirabella of the Fair Work Commission, who dismissed Biddle's application for an unfair dismissal remedy on the basis that it was lodged outside the statutory 21-day timeframe. The appeal was brought under s 604 of the Fair Work Act 2009, which requires the Full Bench to consider whether it is in the public interest to grant permission to appeal. The Full Bench determined that the public interest would not be served by granting permission to appeal, as the appeal grounds did not disclose an arguable case of appealable error.

The legal issues in the appeal were whether the Commissioner erred in her assessment of the exceptional circumstances warranting an extension of time for filing the unfair dismissal application, and whether the Commissioner made significant errors of fact in her summary of Biddle's submissions and evidence. The Full Bench considered each of the six grounds of appeal raised by Biddle and found that none disclosed an arguable case of appealable error. The Full Bench was not persuaded that the Commissioner failed to adequately consider the exceptional circumstances, made significant errors of fact, or otherwise acted on a wrong principle.

The Full Bench concluded that the appeal grounds did not demonstrate appealable error of the type required under s 400 of the Act. The Full Bench found that the Commissioner's decision was based on the particular facts of the case, and did not raise issues of wider application that would attract the public interest. Accordingly, the Full Bench refused permission to appeal.

No further orders were made. The decision of the Full Bench stands, and Biddle's application for an unfair dismissal remedy remains dismissed.

Orders