Aiden Pratt v Concrete Waterproofing Manufacturer Pty Ltd T/A Xypex Australia
[2017] FWCFB 1421
•15 MARCH 2017
| [2017] FWCFB 1421 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Concrete Waterproofing Manufacturer Pty Ltd T/A Xypex Australia
(C2017/620)
VICE PRESIDENT CATANZARITI | SYDNEY, 15 MARCH 2017 |
Appeal against decision [2017] FWC 316 of Deputy President Bartel at Adelaide on 17 January 2017 in matter number U2016/11574.
[1] Mr Aiden Pratt has appealed a Decision 1 and Order2 of Deputy President Bartel issued on 17 January 2017 in which the Deputy President refused an extension of time within which Mr Pratt could make an application for relief from unfair dismissal.
[2] At the hearing on 6 March 2017, Mr A. Pratt appeared for himself and Mr M. Ritchie sought permission to appear for the Respondent. Noting that the Appellant was not represented and the matter was not sufficiently complex pursuant to section 596 of the Act, Mr Ritchie was not granted permission to appear.
[3] Mr Pratt’s employment with Concrete Waterproofing Manufacturing Pty Ltd T/A Xypex Australia was terminated on 10 June 2016 for alleged unsatisfactory performance. He made his application for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act”) on 20 September 2016, some 11 weeks after the expiry of the 21 day period within which an application must be made.
[4] The Deputy President set out in her decision the reasons Mr Pratt asserted his application was late, in particular:
● His grandfather’s death on 23 April 2016, whereby he was grieving during the lodgement period and concerned for his father’s welfare. He also referred to the death of his grandmother on 12 July 2016 leading to further emotional stress;
● He suffered a traumatic injury on 25 June 2016 requiring admission to hospital for emergency surgery. He was discharged on 29 June 2016. A letter from a doctor says he was on high doses of analgesic medication for four weeks following that injury;
● He was unaware of his rights;
● He was persuaded and intimidated by a former colleague (who is also his uncle) not to proceed with an application. 3
[5] The Deputy President found that the matters relied on by Mr Pratt that came into existence after the 21 day period within which an application should be made cannot be relied on as a reason as to why the application was not made within the 21 day period. This included the death of Mr Pratt’s grandmother.
[6] The Deputy President considered the death of Mr Pratt’s grandfather on 23 April 2016, but found that no explanation had been given as to how this affected Mr Pratt’s ability to make his application within time.
[7] With respect to the effect of the analgesic medication, the Deputy President noted in the Decision that the doctor who wrote the letter was not Mr Pratt’s treating doctor and that the letter was written some two months after Mr Pratt made his application for unfair dismissal. She noted that the side effects Mr Pratt said he suffered from as a result of the analgesic medication (dizziness, confusion, vomiting etc.) were not referred to in the letter. The Deputy President noted that it was a further seven weeks after Mr Pratt finished taking the medication before he made his application for unfair dismissal.
[8] The Deputy President noted that ignorance of the timeline for making an application is not an exceptional circumstance and whilst it might be a matter of some weight in considering exceptional circumstances in some cases, this was not one of those cases.
[9] With respect to the reason for the delay, the Deputy President concluded that:
“[27] Taken together, the reasons advanced by the applicant for the delay indicate that he had a lot to cope with over a period of some months. I am satisfied, as a result of his period in hospital and discharge on heavy medication on 29 June 2016, that there is a reasonable explanation for not filing his application within the 21 day time period. I am not satisfied that the reasons advanced by him are a reasonable explanation for the failure to file the application for a period of some 11 weeks after the expiry of the 21 day period.”
[10] The Deputy President determined that Mr Pratt became aware of his dismissal on the day it occurred and that this weighed against granting the extension of time.
[11] As to action taken to dispute the dismissal the Deputy President found that:
“[29] Action taken by an employee to contest a dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. The applicant referred to phone conversations with Mr Hanley, and in particular, to a lengthy conversation on 11 August 2016 where he discussed a potential unfair dismissal application. This conversation is the subject of some dispute, but even if I accept the applicant’s account, the date on which it occurred undermines the weight that would otherwise attach to it. No details have been provided of the content of other conversations with Mr Hanley. This is not a matter in favour of the granting of an extension (endnote omitted).”
[12] The Deputy President noted that the Respondent made no submissions as to prejudice and that this weighed in favour of granting of the extension of time.
[13] The Deputy President found that the merits of the case were contested and that she was unable to form a view as to the merits because of the level of factual dispute. She found she could not conclude that there is no reasonable prospect of success and so determined that this was a neutral factor in her consideration.
[14] The Deputy President then weighed up all of the competing factors and determined that there were no exceptional circumstances warranting the grant of an extension of time.
Legislative Provisions
[15] 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. 4 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[16] 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.
[17] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and Others, 5 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”.6 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.7 In GlaxoSmithKline Australia Pty Ltd v Makin8 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. 9
[18] 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. 10 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.11
Grounds of Appeal
[19] Mr Pratt appeals on the grounds that:
1. Following his traumatic injury, he was on pain medication for four weeks whilst at the same time grieving the death of his grandparents; and
2. He was not in a mental or physical state to deal with the issue.
[20] Mr Pratt says that he had commenced the process of attempting to make his application for unfair dismissal within the required timeframe when he had the accident leading to hospitalisation which meant he could not complete it. His grandmother died soon after his release from hospital. He says that he was in a fragile physical and emotional state for some time and was not capable of dealing with the situation.
[21] Mr Pratt says that the Decision of the Deputy President is counterintuitive and manifests an injustice as he is a person protected from unfair dismissal and the case is yet to be heard.
[22] Mr Pratt submitted that the most important issue is whether the decision to terminate his employment was fair.
[23] Mr Pratt says that it is in the public interest for permission to appeal should be granted as his case of unfair dismissal could then proceed.
Consideration
[24] We have carefully considered the grounds of appeal advanced by Mr Pratt and the decision of the Deputy President. The Deputy President properly took into account all of the reasons for delay advanced by Mr Pratt. In particular, she recognised the impact of the traumatic injury as a reasonable explanation for not making the application within the 21 day period. She did not accept the other reasons for the delay given by Mr Pratt as providing an explanation for the delay of a further 11 weeks.
[25] In Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 12 it was held that a person making an application for an extension of time must provide a credible reason for the whole period that the application was delayed.13 In this case, Mr Pratt has provided credible reasons for some of the period of the delay, but not for all of that period. Even if it is accepted that the pain medication provided a reason for the delay, this only explains the period from 25 June 2016 to 23 July 2016. No explanation is given for the further delay until 20 September 2016.
[26] Whilst it is not clear how the Deputy President reached her view that Dr Stark was not Mr Pratt’s treating doctor, her analysis of the letter written by him on 14 November 2016 stands up to scrutiny and is not attended by any error. Further, Dr Stark noted Mr Pratt’s “employment and termination of employment resulting in anxiety and depression and a fear of intimidation and bullying and recriminations from his prior employer that have impacted on his ability to come forward and proceed with the claim up until now.” 14 This does not sit with Mr Pratt’s submission that he had commenced preparing material to make his application for unfair dismissal when he had his accident, nor with his participation in conciliation conferences prior to 14 November 2016. Mr Pratt does not appear to have been “intimidated” as referenced in Dr Stark’s letter in the two weeks immediately following his dismissal to take steps to make an application.
[27] The fact that Mr Pratt had a conversation with his former colleague on 11 August 2016 who dissuaded him from making an application suggests that, at around this time, Mr Pratt was considering making an application. There is no explanation as to why he did not do so and why he then waited a further six weeks before doing so.
[28] Mr Pratt has failed to explain the totality of the delay in making his application.
[29] Again, Mr Pratt’s claim that he was ignorant of the requirements to make an application does not sit comfortably with his submission that he had commenced the process of making an application at the time of his accident on 25 June 2016.
[30] The Deputy President gave appropriate consideration and weight to action taken by Mr Pratt to dispute the dismissal, any prejudice to the employer and the merits of the application.
[31] We can find no error in the decision of the Deputy President. Her decision is based on the facts and the proper application of the requirements of the Act.
Conclusion
[32] This matter raises no public interest considerations.
[33] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
A. Pratt on his own behalf.
Hearing details:
2017.
Melbourne:
March 6.
1 Aiden Pratt v Concrete Waterproofing Manufacturing Pty Ltd T/A Xypex Australia[2017] FWC 316.
2 PR589432.
3 Aiden Pratt v Concrete Waterproofing Manufacturing Pty Ltd T/A Xypex Australia[2017] FWC 316 at[6]-[10].
4 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
5 (2011) 192 FCR 78 at [43].
6 Ibid at [43].
7 O’Sullivan v Farrer and Another (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 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) 192 FCR 78 at [44]-[46].
8 [2010] FWAFB 5343, 197 IR 266.
9 [2010] FWAFB 5343 at [27], 197 IR 266.
10 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
11 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and Others (2011) 192 FCR 78; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
12 (2010) 197 IR 403.
13 Ibid at 408-9.
14 Aiden Pratt v Concrete Waterproofing Manufacturing Pty Ltd T/A Xypex Australia[2017] FWC 316 at [8].
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